[Federal Register Volume 89, Number 167 (Wednesday, August 28, 2024)]
[Notices]
[Pages 68860-68862]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-19393]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-821-838, C-821-839]


Ferrosilicon From the Russian Federation: Preliminary Affirmative 
Critical Circumstances Determinations

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: The U.S. Department of Commerce (Commerce) preliminarily 
determines that that critical circumstances exist, with respect to 
imports of ferrosilicon in the antidumping duty (AD) and countervailing 
duty (CVD) investigations of ferrosilicon from the Russian Federation 
(Russia). The AD period of investigation is July 1, 2023, through 
December 31, 2023, and the CVD period of investigation is January 1, 
2023, through December 31, 2023.

DATES: Applicable August 28, 2024.

FOR FURTHER INFORMATION CONTACT: Mark Hoadley AD/CVD Operations, Office 
VII, Enforcement and Compliance, International Trade Administration, 
U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, 
DC 20230; telephone: (202) 482- 3148.

SUPPLEMENTARY INFORMATION:

Background

    These preliminary determinations are made in accordance with 
sections 703(e) and 733(e) of the Tariff Act of 1930, as amended (the 
Act). Commerce published the notices of initiation of these AD and CVD 
investigations on April 24, 2024.\1\ On August 9, 2024, CC Metals and 
Alloys, LLC and Ferroglobe USA, INC. (collectively, the petitioners) 
filed timely allegations, pursuant to sections 703(e)(1) and 733(e)(1) 
of the Act and 19 CFR 351.206, that critical circumstances exist with 
respect to ferrosilicon from Russia.\2\ On August 19,

[[Page 68861]]

2024, the Government of Russia (GOR) submitted comments in response to 
the petitioners' CVD critical circumstances allegation.\3\ Commerce 
published its preliminary AD and CVD determinations on June 28, 
2024.\4\ In the CVD Preliminary Determination, we applied adverse facts 
available (AFA) to the mandatory respondent, Russian Ferro Alloys Inc./
RFA International LP (RFA) and determined an all-others rate based on 
the rate for RFA.\5\ In the AD Preliminary Determination, we assigned 
the Russia-wide entity an AFA rate as no individual producers/exporters 
participated in the investigation.\6\
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    \1\ See Ferrosilicon from Brazil, Kazakhstan, Malaysia, and the 
Russian Federation: Initiation of Countervailing Duty 
Investigations, 89 FR 31133 (April 24, 2024) (CVD Initiation 
Notice); see also Ferrosilicon from Brazil, Kazakhstan, Malaysia, 
and the Russian Federation: Initiation of Less-Than-Fair-Value 
Investigations, 89 FR 31137 (April 24, 2024) (AD Initiation Notice).
    \2\ See Petitioners' Letter, ``Petitioners' Critical 
Circumstances Allegation,'' dated August 9, 2024 (AD Critical 
Circumstances Allegation); also see Petitioners' Letter, 
``Petitioners' Critical Circumstances Allegation,'' dated August 9, 
2024 (CVD Critical Circumstances Allegation).
    \3\ See GOR's Letter, ``Response to the Petitioners' Critical 
Circumstances Allegation,'' dated August 19, 2024.
    \4\ See Ferrosilicon from the Russian Federation: Preliminary 
Affirmative Countervailing Duty Determination, 89 FR 53949 (June 28, 
2024) (CVD Preliminary Determination), and accompanying Preliminary 
Decision Memorandum (PDM); see also Ferrosilicon from the Russian 
Federation: Preliminary Affirmative Determination of Sales at Less 
Than Fair Value, 89 FR 53953 (June 28, 2024) (AD Preliminary 
Determination), and accompanying PDM.
    \5\ See CVD Preliminary Determination PDM at 6-14.
    \6\ See AD Preliminary Determination PDM at 6-8.
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    In accordance with sections 703(e)(1) and 733(e)(1) of the Act and 
19 CFR 351.206(c)(1) and (2)(ii), because the petitioners submitted the 
critical circumstances allegations more than 30 days before the 
scheduled date of the final determinations, Commerce will make 
preliminary findings as to whether there is a reasonable basis to 
believe or suspect that critical circumstances exist and will issue 
preliminary critical circumstances determinations within 30 days after 
the allegations are filed.

Critical Circumstances Allegations

    The petitioners allege that imports of ferrosilicon from Russia 
were massive over a relatively short period, and provided monthly 
import data comparing a base period of January 2024 through March 2024, 
to a comparison period of April 2024 through June 2024.\7\ The 
petitioners allegation of massive imports utilizes base and comparison 
periods established in accordance with 19 CFR 351.206(i) and reflects 
an increase from 0 to 5,744.922 metric tons, which is ``massive'' under 
19 CFR 351.206(h)(2) and under sections 703(e)(1)(b) and 733(e)(1)(b) 
of the Act.\8\ For the CVD investigation, the petitioners also allege 
that there is a reasonable basis to believe that there are subsidies in 
this investigation which are inconsistent with the World Trade 
Organization Agreement on Subsidies and Countervailing Measures (SCM 
Agreement).\9\ For the AD investigation, the petitioners also allege 
that there is reason to believe there is history of dumping and 
material injury by reason of dumped imports in the United States or 
elsewhere of ferrosilicon and a reason to believe importers knew or 
should have known that Russian producers and/or exporters were selling 
ferrosilicon at less than fair value (LTFV) and that material injury 
was likely.\10\
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    \7\ See AD Critical Circumstance Allegation at 6; see also CVD 
Critical Circumstances Allegation at 5.
    \8\ Id.
    \9\ See section 771(8)(A) of the Act.
    \10\ See section 733(e)(1) of the Act.
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Analysis

CVD Allegation: Alleged Countervailable Subsidies Are Inconsistent With 
the SCM Agreement

    Section 703(e)(1) of the Act provides that Commerce will determine 
that critical circumstances exist in CVD investigations if there is a 
reasonable basis to believe or suspect that the alleged countervailable 
subsidy is inconsistent with the SCM Agreement.\11\
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    \11\ Commerce limits its critical circumstances findings to 
those subsidies contingent upon export performance or use of 
domestic over imported goods (i.e., those prohibited under Article 3 
of the SCM Agreement). See, e.g., Final Affirmative Countervailing 
Duty Determination and Final Negative Critical Circumstances 
Determination: Carbon and Certain Alloy Steel Wire from Germany, 67 
FR 55808, 55809-10 (August 30, 2002).
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    To determine whether an alleged countervailable subsidy is 
inconsistent with the SCM Agreement, in accordance with section 
703(e)(1)(A) of the Act, Commerce considered the evidence currently on 
the record of this investigation. As determined in the CVD Preliminary 
Determination, we found, based on AFA, that the non-cooperating 
mandatory respondent RFA used the Import Substitution Loans program. 
Record evidence indicates that this program is contingent on the use of 
domestic over imported goods, rendering it inconsistent with Article 3 
of the SCM Agreement.\12\ Therefore, Commerce preliminarily determines, 
for purposes of this critical circumstances' determination, that there 
are subsidies in this investigation that are inconsistent with the SCM 
Agreement.
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    \12\ See Checklist, ``Enforcement and Compliance, Countervailing 
Duty Investigation Initiation Checklist,'' dated April 17, 2024, at 
8-9.
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AD Allegation: History of Dumping and Material Injury by Reason of 
Dumped Imports in the United States or Elsewhere of the Subject 
Merchandise

    In determining whether there is a history of dumping pursuant to 
section 733(e)(1)(A)(i) of the Act, Commerce generally considers 
current or previous AD orders on subject merchandise from the country 
in question in the United States and current orders in any other 
country with regard to imports of subject merchandise.\13\ On May 4, 
2021, Egypt imposed an antidumping duty order on imports of 
ferrosilicon from Russia.\14\ This third-country antidumping duty order 
remains in effect and constitutes evidence of a history of dumping and 
material injury by reason of LTFV sales.\15\
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    \13\ See, e.g., Certain Oil Country Tubular Goods from the 
People's Republic of China: Notice of Preliminary Determination of 
Sales at Less Than Fair Value, Affirmative Preliminary Determination 
of Critical Circumstances and Postponement of Final Determination, 
74 FR 59117, 59120 (November 17, 2009) (OCTG China Preliminary 
Determination), unchanged in Certain Oil Country Tubular Goods from 
the People's Republic of China: Final Determination of Sales at Less 
Than Fair Value, Affirmative Final Determination of Critical 
Circumstances and Final Determination of Targeted Dumping, 75 FR 
20335 (April 19, 2010) (OCTG China Final Determination).
    \14\ See AD Critical Circumstances Allegation at 3 and Exhibit 
1.
    \15\ Id.
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AD Allegation: The Importer Knew or Should Have Known That the Exporter 
Was Selling at Less Than Fair Value and That There Was Likely To Be 
Material Injury

    In determining whether importers knew or should have known that 
exporters were selling subject merchandise at LTFV and that there was 
likely to be material injury by reason of such sales, pursuant to 
section 733(e)(1)(A)(ii), Commerce must rely on the facts before it at 
the time the determination is made. Commerce generally bases its 
decision with respect to knowledge on the margins calculated in the 
preliminary determination and the U.S. International Trade Commission's 
(ITC) preliminary injury determination.\16\
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    \16\ See, e.g., OCTG China Preliminary Determination, unchanged 
in OCTG China Final Determination.
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    Commerce normally considers margins of 25 percent or more for 
export price sales and 15 percent or more for constructed export price 
sales sufficient to impute importer knowledge of sales at LTFV.\17\ In 
this investigation, we preliminarily assigned a dumping margin of 
283.27 percent to the Russia-wide entity, which exceeds the minimum 
margin required to impute

[[Page 68862]]

knowledge of dumping to U.S. importers.\18\
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    \17\ See, e.g., Certain Uncoated Paper from Australia: Final 
Determination of Sales at Less Than Fair Value and Affirmative Final 
Determination of Critical Circumstances, In Part, 81 FR 3108 
(January 20, 2016) (Uncoated Paper from Australia), and accompanying 
Issues and Decision Memorandum at 13.
    \18\ See AD Preliminary Determination.
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    In assessing importers' knowledge of likely material injury, 
Commerce relies on a preliminary affirmative determination by the ITC 
to impute the requisite knowledge to U.S. importers.\19\ Thus, Commerce 
finds that U.S. importers knew or should have known that imports of 
ferrosilicon from Russia were being sold at LTFV and were likely to 
cause injury, which is sufficient to satisfy the first requirement for 
an affirmative critical circumstances determination.
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    \19\ See Ferrosilicon from Brazil, Kazakhstan, Malaysia, and 
Russia; Determinations, 89 FR 43435 (May 17, 2024).
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Massive Imports

    In determining whether there have been ``massive imports'' over a 
``relatively short period,'' pursuant to sections 703(e)(1)(B) and 
733(e)(1)(B) of the Act and 19 CFR 351.206(h), Commerce normally 
compares the import volumes of the subject merchandise for at least 
three months immediately preceding the filing of the petition (i.e., 
the ``base period'') to a comparable period of at least three months 
following the filing of the petition (i.e., the ``comparison period''). 
Imports normally will be considered massive when imports during the 
comparison period have increased by 15 percent or more compared to 
imports during the base period.\20\ The regulations also provide, 
however, that if Commerce finds that importers, or exporters or 
producers, had reason to believe, at some time prior to the beginning 
of the proceeding, that a proceeding was likely, Commerce may consider 
a period of not less than three months from that earlier time.\21\ In 
this case, Commerce compared the import volumes of subject merchandise, 
as provided by the petitioners,\22\ for the three months immediately 
preceding and three months following the filing of the petition, ending 
with the month prior to the AD Preliminary Determination and the CVD 
Preliminary Determination.
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    \20\ See 19 CFR 351.206(h)(2).
    \21\ See 19 CFR 351.206(i).
    \22\ See AD Critical Circumstances Allegation at 5-6; and CVD 
Critical Circumstances Allegation at 4-6.
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    Because the petitions were filed on March 28, 2024, to determine 
whether there was a massive surge in imports for the cooperating 
mandatory respondent, Commerce compared the total volume of shipments 
during the period January 2024 through March 2024 with the volume of 
shipments during the following three-month period of April 2024 through 
June 2024. Based on this analysis, we preliminarily determine that 
there was a massive surge in imports from RFA and ``all other'' 
producers/exporters from Russia (for CVD) and for the Russia-wide 
entity (for AD).

Conclusion

    For the CVD investigation, based on the criteria and findings 
discussed above, we preliminarily determine that critical circumstances 
exist with respect to imports of ferrosilicon from Russia produced or 
exported by RFA and all other producers/exporters. For the AD 
investigation, based on the criteria and findings discussed above, we 
preliminarily determine that critical circumstances exist with respect 
to all imports of ferrosilicon from Russia produced or exported by the 
Russia-wide entity.

Final Critical Circumstances Determinations

    We will make final critical circumstances determinations concerning 
critical circumstances in the final AD and CVD determinations, which 
are currently due no later than September 11, 2024.

Public Comment

    Interested parties are invited to comment on these preliminary 
critical circumstances determinations no later than five days after the 
date on which this notice is published in the Federal Register. Given 
that the final determinations for the AD and CVD investigations are due 
no later than September 11, 2024, Commerce will allow two days for 
parties to submit rebuttal comments.
    We request that interested parties provide at the beginning of 
their briefs a public, executive summary for each issue raised in their 
briefs.\23\ Further, we request that interested parties limit their 
executive summary of each issue to no more than 450 words, not 
including citations. We intend to use the executive summaries as the 
basis of the comment summaries included in the issues and decision 
memoranda that will accompany the final determinations in these 
investigations. We request that interested parties include footnotes 
for relevant citations in the executive summary of each issue. Note 
that Commerce has amended certain of its requirements pertaining to the 
service of documents in 19 CFR 351.303(f).\24\
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    \23\ We use the term ``issue'' here to describe an argument that 
Commerce would normally address in a comment of the Issues and 
Decision Memorandum.
    \24\ See Administrative Protective Order, Service, and Other 
Procedures in Antidumping and Countervailing Duty Proceedings, 88 FR 
67069, 67077 (September 29, 2023).
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Suspension of Liquidation

    In accordance with section 703(e)(2)(A) of the Act, for all 
entries, we will direct U.S. Customs and Border Protection (CBP) to 
suspend liquidation of any unliquidated entries of subject merchandise 
from Russia entered, or withdrawn from warehouse for consumption, on or 
after March 30, 2024, which is 90 days prior to the date of publication 
of the AD Preliminary Determination and CVD Preliminary Determination 
in the Federal Register. For such entries, CBP shall require a cash 
deposit equal to the estimated weighted-average dumping margin 
established in the AD Preliminary Determination and CVD Preliminary 
Determination. This suspension of liquidation will remain in effect 
until further notice.

U.S. International Trade Commission Notification

    In accordance with sections 703(f) and 733(f) of the Act, we will 
notify the ITC of these preliminary determinations of critical 
circumstances.

Notification to Interested Parties

    This determination is issued and published pursuant to sections 
703(f), 733(f), and 777(i) of the Act and 19 CFR 351.206.

    Dated: August 22, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations, performing the 
non-exclusive functions and duties of the Assistant Secretary for 
Enforcement and Compliance.
[FR Doc. 2024-19393 Filed 8-26-24; 4:15 pm]
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