Certain Magnesia Carbon Bricks from the People's Republic of China: Initiation of Countervailing Duty Investigation, 42858-42861 [E9-20493]
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Federal Register / Vol. 74, No. 163 / Tuesday, August 25, 2009 / Notices
Office 3, Import Administration,
International Trade Administration,
U.S. Department of Commerce, Room
4014, 14th Street and Constitution Ave.,
NW, Washington, DC 20230, telephone:
(202) 482–3338.
SUPPLEMENTARY INFORMATION:
Background
On February 2, 2009, the U.S.
Department of Commerce (‘‘the
Department’’) published a notice of
initiation of the administrative review of
the countervailing duty order on hot–
rolled carbon steel products from India
covering the period January 1, 2008,
through December 31, 2008. See
Initiation of Antidumping and
Countervailing Duty Administrative
Reviews and Request for Revocation in
Part, 74 FR 5821 (February 2, 2009). The
preliminary results are currently due no
later than September 2, 2009.
Extension of Time Limit for Preliminary
Results
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Section 751(a)(3)(A) of the Tariff Act
of 1930, as amended (‘‘the Act’’),
requires the Department to make a
preliminary determination within 245
days after the last day of the anniversary
month of an order for which a review
is requested. Section 751(a)(3)(A) of the
Act further states that if it is not
practicable to complete the review
within the time period specified, the
administering authority may extend the
245-day period to issue its preliminary
results to up to 365 days.
Due to the complexity of the issues in
this administrative review, such as the
number of programs under review
during the POR, we have determined
that it is not practicable to complete the
preliminary results within the 245-day
period. Therefore, in accordance with
section 751(a)(3)(A) of the Act, we are
extending the time period for issuing
the preliminary results of the review by
120 days. The preliminary results are
now due no later than December 31,
2009. The final results continue to be
due 120 days after publication of the
preliminary results.
This notice is issued and published in
accordance with section 751(a)(3)(A) of
the Act.
Dated: August 19, 2009.
John M. Andersen,
Acting Deputy Assistant Secretary for
Antidumping and Countervailing Duty
Operations.
[FR Doc. E9–20501 Filed 8–24–09; 8:45 am]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C–570–955]
Certain Magnesia Carbon Bricks from
the People’s Republic of China:
Initiation of Countervailing Duty
Investigation
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce
DATES: Effective Date: August 25, 2009.
FOR FURTHER INFORMATION CONTACT:
Justin Neuman, Toni Page, or Nicholas
Czajkowski; AD/CVD Operations, Office
6, Import Administration, International
Trade Administration, U.S. Department
of Commerce, 14th Street and
Constitution Avenue NW, Washington,
D.C. 20230; telephone: (202) 482–0486,
(202) 482–1398, or (202) 482–1395
respectively.
SUPPLEMENTARY INFORMATION:
The Petitions
On July 29, 2009, the Department of
Commerce (the Department) received
countervailing duty (CVD) and
antidumping (AD) petitions concerning
imports of certain magnesia carbon
bricks (magnesia carbon bricks) from the
People’s Republic of China (PRC) filed
in proper form by Resco Products, Inc.
(Petitioner), domestic producers of
magnesia carbon bricks. See ‘‘Petition
for the Imposition of Countervailing
Duties: Certain Magnesia Carbon Bricks
from the People’s Republic of China’’
(CVD PRC Petition). On August 3, 2009,
the Department spoke via telephone
with petitioner to request additional
information and clarification of certain
areas of the CVD petition involving
countervailable subsidy allegations. See
Memorandum from Mark Hoadley,
Program Manager, AD/CVD Operations,
Office 6, to the File, ‘‘CVD Petition for
Investigation of Magnesia Carbon Bricks
from the People’s Republic of China
(PRC): Phone Call with Counsel for
Petitioner’’ dated August 4, 2009. Based
on the Department’s requests, the
Petitioner timely filed additional
information on August 7, 2009. On
August 4 and 12, 2009, the Department
issued additional requests for
information and clarification of certain
areas of the CVD PRC Petition. Based on
the Department’s requests, Petitioner
timely filed additional information
pertaining to the CVD PRC Petition on
August 10 and 14, 2009, (hereinafter,
Supplement to the CVD PRC Petition
dated August 10, 2009 and Second
Supplement to the CVD PRC Petition,
dated August 14, 2009).
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In accordance with section 702(b)(1)
of the Tariff Act of 1930, as amended
(the Act), Petitioner alleges that
producers/exporters of magnesia carbon
bricks in the PRC received
countervailable subsidies within the
meaning of section 701 and 771(5) of the
Act, and that imports from these
exporters/producers materially injure,
or threaten material injury to, an
industry in the United States.
The Department finds that Petitioner
filed this CVD PRC Petition on behalf of
the domestic industry because it is an
interested party as defined in section
771(9)(C) of the Act, and Petitioner has
demonstrated sufficient industry
support with respect to the
countervailing duty investigation that it
is requesting the Department to initiate
(see ‘‘Determination of Industry Support
for the CVD Petition’’ below).
Period of Investigation
The anticipated period of
investigation (POI) is calendar year
2008. See 19 CFR 351.204(b)(2).
Scope of Investigation
The products covered by this
investigation are magnesia carbon bricks
from the PRC. For a full description of
the scope of the investigation, please see
the ‘‘Scope of Investigation’’ in
Appendix I to this notice.
Comments on Scope of Investigation
During our review of the CVD PRC
Petition, we discussed the scope with
Petitioner to ensure that it is an accurate
reflection of the products for which the
domestic industry is seeking relief.
Moreover, as discussed in the preamble
to the regulations (See Antidumping
Duties; Countervailing Duties; Final
Rule, 62 FR 27296, 27323 (May 19,
1997)), we are setting aside a period for
interested parties to raise issues
regarding product coverage. The
Department encourages all interested
parties to submit such comments by
September 8, 2009.1 Comments should
be addressed to Import Administration’s
APO/Dockets Unit, Room 1870, U.S.
Department of Commerce, 14th Street
and Constitution Avenue, NW,
Washington, DC 20230. The period of
scope consultations is intended to
provide the Department with ample
opportunity to consider all comments
and to consult with parties prior to the
issuance of the preliminary
determinations.
1 September 8, 2009 is the first business day after
twenty calendar days from the signature date of this
notice.
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Consultations
Pursuant to section 702(b)(4)(A)(ii) of
the Act, the Department held
consultations with the government of
the PRC (hereinafter, the GOC) with
respect to the CVD PRC Petition on
August 7, 2009. See Memorandum to
the File, Countervailing Duty Petitions
on Certain Magnesia Carbon Bricks from
the People’s Republic of China:
Consultations with the Government of
the People’s Republic of China, on file
in the Central Records Unit (CRU),
Room 1117 of the main Department of
Commerce building.
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Determination of Industry Support for
the CVD Petition
Section 702(b)(1) of the Act requires
that a petition be filed on behalf of the
domestic industry. Section 702(c)(4)(A)
of the Act provides that a petition meets
this requirement if the domestic
producers or workers who support the
petition account for: (i) at least 25
percent of the total production of the
domestic like product; and (ii) more
than 50 percent of the production of the
domestic like product produced by that
portion of the industry expressing
support for, or opposition to, the
petition. Moreover, section 702(c)(4)(D)
of the Act provides that, if the petition
does not establish support of domestic
producers or workers accounting for
more than 50 percent of the total
production of the domestic like product,
the Department shall: (i) poll the
industry or rely on other information in
order to determine if there is support for
the petition, as required by
subparagraph (A); or (ii) determine
industry support using a statistically
valid sampling method.
Section 771(4)(A) of the Act defines
the ‘‘industry’’ as the producers as a
whole of a domestic like product. Thus,
to determine whether a petition has the
requisite industry support, the statute
directs the Department to look to
producers and workers who produce the
domestic like product. The United
States International Trade Commission
(ITC), which is responsible for
determining whether ‘‘the domestic
industry’’ has been injured, must also
determine what constitutes a domestic
like product in order to define the
industry. While both the Department
and the ITC must apply the same
statutory definition regarding the
domestic like product (see section
771(10) of the Act), they do so for
different purposes and pursuant to a
separate and distinct authority. In
addition, the Department’s
determination is subject to limitations of
time and information. Although this
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may result in different definitions of the
like product, such differences do not
render the decision of either agency
contrary to law. See USEC, Inc. v.
United States, 132 F. Supp. 2d 1, 8 (Ct.
Int’l Trade 2001), citing Algoma Steel
Corp. Ltd. v. United States, 688 F. Supp.
639, 644 (Ct. Int’l Trade 1988), aff’d 865
F.2d 240 (Fed. Cir. 1989), cert. denied
492 U.S. 919 (1989).
Section 771(10) of the Act defines the
domestic like product as ‘‘a product
which is like, or in the absence of like,
most similar in characteristics and uses
with, the article subject to an
investigation under this title.’’ Thus, the
reference point from which the
domestic like product analysis begins is
‘‘the article subject to an investigation’’
(i.e., the class or kind of merchandise to
be investigated, which normally will be
the scope as defined in the petition).
With regard to the domestic like
product, Petitioner does not offer a
definition of domestic like product
distinct from the scope of the
investigations. Based on our analysis of
the information submitted on the
record, we have determined that
magnesia carbon bricks constitute a
single domestic like product and we
have analyzed industry support in terms
of that domestic like product. For a
discussion of the domestic like product
analysis in this case, see Countervailing
Duty Investigation Initiation Checklist:
Magnesia Carbon Bricks from the PRC
(CVD Initiation Checklist) at Attachment
II, Analysis of Industry Support for the
Petitions Covering Certain Magnesia
Carbon Bricks from the People’s
Republic of China and Mexico, dated
concurrently with this notice and on file
in the CRU, Room 1117 of the main
Department of Commerce building.
In determining whether Petitioner has
standing under section 702(c)(4)(A) of
the Act, we considered the industry
support data contained in the CVD PRC
Petition with reference to the domestic
like product as defined in the ‘‘Scope of
Investigations,’’ Appendix I of this
notice. To establish industry support,
Petitioner provided its own 2008
production of the domestic like product,
as well as the production of the two
supporters of the CVD PRC Petition, and
compared this to the estimated total
production of the domestic like product
for the entire domestic industry. See the
CVD PRC Petition, at Exhibits 2–4,
Supplement to the CVD PRC Petition,
dated August 10, 2009, at 8–12, and
Exhibits R2–R–6, and Second
Supplement to the CVD PRC Petition,
dated August 14, 2009, at 1–2. Petitioner
estimated total 2008 production of the
domestic like product based on its own
production data, data from the two
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supporters of the CVD PRC Petition, and
knowledge of the U.S. industry. See the
CVD PRC Petition, at Exhibits 2–4,
Supplement to the CVD PRC Petition,
dated August 10, 2009, at 8–12, and
Exhibits R2–R–6, and Second
Supplement to the CVD PRC Petition,
dated August 14, 2009, at 1–2; see also
CVD Initiation Checklist at Attachment
II.
Our review of the data provided in the
CVD PRC Petition, the supplemental
submissions, and other information
readily available to the Department
indicates that Petitioner has established
industry support. First, the CVD PRC
Petition established support from
domestic producers (or workers)
accounting for more than 50 percent of
the total production of the domestic like
product and, as such, the Department is
not required to take further action in
order to evaluate industry support (e.g.,
polling). See section 702(c)(4)(D) of the
Act, see also CVD Initiation Checklist at
Attachment II. Second, the domestic
producers (or workers) have met the
statutory criteria for industry support
under section 702(c)(4)(A)(i) of the Act
because the domestic producers (or
workers) who support the CVD PRC
Petition account for at least 25 percent
of the total production of the domestic
like product. See CVD Initiation
Checklist at Attachment II. Finally, the
domestic producers (or workers) have
met the statutory criteria for industry
support under section 702(c)(4)(A)(ii) of
the Act because the domestic producers
(or workers) who support the CVD PRC
Petition account for more than 50
percent of the production of the
domestic like product produced by that
portion of the industry expressing
support for, or opposition to, the CVD
PRC Petition. Accordingly, the
Department determines that the CVD
PRC Petition was filed on behalf of the
domestic industry within the meaning
of section 702(b)(1) of the Act. See id.
The Department finds that Petitioner
filed the CVD PRC Petition on behalf of
the domestic industry because it is an
interested party as defined in section
771(9)(C) of the Act and it has
demonstrated sufficient industry
support with respect to the
countervailing investigation that it is
requesting the Department to initiate.
See id.
Injury Test
Because the PRC is a ‘‘Subsidies
Agreement Country’’ within the
meaning of section 701(b) of the Act,
section 701(a)(2) of the Act applies to
this investigation. Accordingly, the ITC
must determine whether imports of the
subject merchandise from the PRC
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materially injure, or threaten material
injury to, a U.S. industry.
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Allegations and Evidence of Material
Injury and Causation
Petitioner alleges that imports of
magnesia carbon bricks from the PRC
are benefitting from countervailable
subsidies and that such imports are
causing, or threaten to cause, material
injury to the domestic industry
producing magnesia carbon bricks. In
addition, Petitioner alleges that
subsidized imports exceed the
negligibility threshold provided for
under section 771(24)(A) of the Act.
Petitioner contends that the industry’s
injured condition is illustrated by
reduced market share, underselling and
price depressing and suppressing
effects, increased import penetration,
lost sales and revenue, reduced
production, reduced capacity
utilization, reduced shipments, reduced
employment, and overall poor financial
performance. We have assessed the
allegations and supporting evidence
regarding material injury, threat of
material injury, and causation, and we
have determined that these allegations
are properly supported by adequate
evidence and meet the statutory
requirements for initiation. See CVD
Initiation Checklist at Attachment III,
Analysis of Allegations and Evidence of
Material Injury and Causation for the
Petitions Covering Certain Magnesia
Carbon Bricks from the People’s
Republic of China and Mexico.
Initiation of Countervailing Duty
Investigation
Section 702(b)(1) of the Act requires
the Department to initiate a CVD
proceeding whenever an interested
party files a CVD petition on behalf of
an industry that: (1) alleges the elements
necessary for an imposition of a duty
under section 701(a) of the Act; and (2)
is accompanied by information
reasonably available to the petitioners
supporting the allegations.
The Department has examined the
CVD PRC Petition on magnesia carbon
bricks from the PRC and finds that it
complies with the requirements of
section 702(b)(1) of the Act. Therefore,
in accordance with section 702(b)(1) of
the Act, we are initiating a CVD
investigation to determine whether
producers/exporters of magnesia carbon
bricks in the PRC receive
countervailable subsidies. For a
discussion of evidence supporting our
initiation determination, see CVD
Initiation Checklist.
We are including in our investigation
the following programs alleged in the
CVD PRC Petition to provide
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countervailable subsidies to producers/
exporters of the subject merchandise:
A. Provision of Inputs for Less than
Adequate Remuneration (LTAR)
1. Provision of Land–Use Rights to
State–Owned Enterprises (SOEs) for
LTAR
2. Provision of Electricity at LTAR
B. Export Restraints of Raw Materials
C. Tax Benefit Programs
1. Two Free/Three Half Program for
Foreign–Invested Enterprises (FIEs)
2. Income Tax Reductions for Export–
Oriented FIEs
3. Preferential Income Tax Policy for
Enterprises in the Northeast Region
4. Forgiveness of Tax Arrears for
Enterprises in the Old Industrial
Bases of Northeast China
5. Location–Based Income Tax
Reduction Programs for FIEs
6. Local Income Tax Exemption and
Reduction Programs for
‘‘Productive’’ FIEs
7. Domestic Preference Tax Benefits
a. Income Tax Credits for
Domestically Owned Companies
Purchasing Domestically Produced
Equipment
b. Income Tax Credits for FIEs
Purchasing Domestically Produced
Equipment
c. VAT Rebates on Purchases of
Domestically Produced Equipment
8. Preferential Tax Programs for
Enterprises Recognized as High or
New Technology Enterprises
D. Northeast Revitalization Program and
Related Provincial Policies
a. E. Direct Grants
1. The State Key Technology
Renovation Project Fund
2. Famous Brands Programs
F. Grants to Companies for ‘‘Outward
Expansion’’ and Export Performance in
Guangdong Province
G. Preferential Loans and Directed
Credit to the Magnesia Carbon Brick
Industry
H. Cash Grant Programs
1. Fund for Supporting Technological
Innovation for Technological Smalland Medium–Sized Enterprises
(SMEs)
2. Development Fund for SMEs
3. Fund for International Market
Exploration by SMEs
I. Zhejiang Province Program to Rebate
Antidumping Costs
For further information explaining
why the Department is investigating
these programs, see CVD Initiation
Checklist.
We are not including in our
investigation the following programs
alleged to benefit producers/exporters of
the subject merchandise in the PRC:
A. Provision of Water for Less Than
Adequate Remuneration
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B. Provision of Natural Gas for Less
Than Adequate Remuneration
C. VAT and Tariff Exemptions for
Purposes of Fixed Assets Under the
Foreign Trade Development Fund
Program
D. Shenzhen City Program to Rebate
Antidumping Costs
For further information explaining
why the Department is not initiating an
investigation of these programs, see
CVD Initiation Checklist.
Respondent Selection
For this investigation, the Department
intends to select respondents based on
U.S. Customs and Border Protection
(CBP) data for U.S. imports during the
POI (i.e., calendar year 2008). We intend
to release the CBP data under
Administrative Protective Order (APO)
to all parties with access to information
protected by APO within five days of
the announcement of the initiation of
this investigation. Interested parties may
submit comments regarding the CBP
data and respondent selection within
seven calendar days of publication of
this notice. We intend to make our
decision regarding respondent selection
within 20 days of publication of this
notice.
Interested parties must submit
applications for disclosure under APO
in accordance with 19 CFR 351.305(b).
Instructions for filing such applications
may be found on the Department’s
website at https://ia.ita.doc.gov/apo.
Distribution of Copies of the CVD
Petition
In accordance with section
702(b)(4)(A)(i) of the Act and 19 CFR
351.202(f), a copy of the public version
of the CVD PRC Petition has been
provided to the representatives of the
GOC. Because of the particularly large
number of producers/exporters
identified in the CVD PRC Petition, the
Department considers the service of the
public version of the petition to the
foreign producers/exporters satisfied by
the delivery of the public version to the
GOC, consistent with 19 CFR
351.203(c)(2).
ITC Notification
We have notified the ITC of our
initiation, as required by section 702(d)
of the Act.
Preliminary Determination by the ITC
The ITC will preliminarily determine,
within 45 days after the date on which
the petition was filed, whether there is
a reasonable indication that imports of
subsidized magnesia carbon bricks from
the PRC materially injure, or threaten
material injury to, a U.S. industry. See
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section 703(a)(2) of the Act. A negative
ITC determination will result in the
investigation being terminated; see
section 703(a)(1) of the Act. Otherwise,
the investigation will proceed according
to statutory and regulatory time limits.
This notice is issued and published
pursuant to section 777(i) of the Act.
Dated: August 18, 2009.
Carole Showers,
Acting Deputy Assistant Secretary for Policy
and Negotiations.
Appendix I
Scope of the Investigation
Imports covered by this petition
consist of certain chemically bonded
(resin or pitch), magnesia carbon bricks
with a magnesia component of at least
70 percent magnesia (‘‘MgO’’) by
weight, regardless of the source of raw
materials for the MgO, with carbon
levels ranging from trace amounts to 30
percent by weight, regardless of
enhancements, (for example, magnesia
carbon bricks can be enhanced with
coating, grinding, tar impregnation or
coking, high temperature heat
treatments, anti–slip treatments or metal
casing) and regardless of whether or not
anti–oxidants are present (for example,
antioxidants can be added to the mix
from trace amounts to 15 percent by
weight as various metals, metal alloys,
and metal carbides). Certain magnesia
carbon bricks that are the subject of this
investigation are currently classifiable
under subheadings 6902.10.10.00,
6902.10.50.00, 6815.91.00.00, and
6815.99 of the Harmonized Tariff
Schedule of the United States (HTSUS).
While HTSUS subheadings are provided
for convenience and customs purposes,
the written description is dispositive.
[FR Doc. E9–20493 Filed 8–24–09; 8:45 am]
BILLING CODE 3510–DS–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XR07
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Endangered Species; File No. 14396
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; receipt of application.
SUMMARY: Notice is hereby given that
the Delaware Department of Natural
Resources and Environmental ControlDivision of Fish and Wildlife, Dover,
Delaware, has applied in due form for
a permit to take shortnose sturgeon
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(Acipenser brevirostrum) for purposes
of scientific research.
DATES: Written, telefaxed, or e-mail
comments must be received on or before
September 24, 2009.
ADDRESSES: The application and related
documents are available for review by
selecting ‘‘Records Open for Public
Comment’’ from the Features box on the
Applications and Permits for Protected
Species (APPS) home page, https://
apps.nmfs.noaa.gov/index.cfm, and
then selecting File No. 14396 from the
list of available applications. These
documents are also available for review
upon written request or by appointment
in the following office(s):
Permits, Conservation and Education
Division, Office of Protected Resources,
NMFS, 1315 East-West Highway, Room
13705, Silver Spring, MD 20910; phone
(301)713–2289; fax (301)713–0376; and
Northeast Region, NMFS, Protected
Resources Division, 55 Great Republic
Drive, Gloucester, MA 01930; phone
(978)281–9300; fax (978)281–9333.
Written comments or requests for a
public hearing on this application
should be mailed to the Chief, Permits,
Conservation and Education Division,
F/PR1, Office of Protected Resources,
NMFS, 1315 East-West Highway, Room
13705, Silver Spring, MD 20910. Those
individuals requesting a hearing should
set forth the specific reasons why a
hearing on this particular request would
be appropriate.
Comments may also be submitted by
facsimile at (301)713–0376, provided
the facsimile is confirmed by hard copy
submitted by mail and postmarked no
later than the closing date of the
comment period.
Comments may also be submitted by
e-mail. The mailbox address for
providing e-mail comments is
NMFS.Pr1Comments@noaa.gov. Include
in the subject line of the e-mail
comment the following document
identifier: File No. 14396.
FOR FURTHER INFORMATION CONTACT:
Malcolm Mohead or Kate Swails,
(301)713–2289.
SUPPLEMENTARY INFORMATION: The
subject permit is requested under the
authority of the Endangered Species Act
of 1973, as amended (ESA; 16 U.S.C.
1531 et seq.), and the regulations
governing the taking, importing, and
exporting of endangered and threatened
species (50 CFR 222–226).
The applicant is seeking a five-year
scientific research permit to conduct a
study of shortnose sturgeon in the
Delaware River. The primary study
objective would be to locate and
document nursery areas, individual
movement patterns, seasonal
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movements, home ranges, and habitats
of juvenile shortnose sturgeon through
the use of telemetry. This focus would
be in association with an ongoing
Atlantic sturgeon (Acipenser oxyrinchus
oxyrhinchus) study with similar
objectives. Up to 200 shortnose sturgeon
would be weighed, measured, examined
for tags, marked with Passive Integrated
Transponder (PIT) tags and Floy tags,
and released. Up to 15 early stage
juvenile shortnose sturgeon would also
be anesthetized and implanted with
acoustic transmitters if they are of
suitable size. A total of one
unintentional mortality is requested
over the five year term of the project
which is scheduled to take place from
March 1 to December 15.
Dated: August 19, 2009.
P. Michael Payne,
Chief, Permits, Conservation and Education
Division, Office of Protected Resources,
National Marine Fisheries Service.
[FR Doc. E9–20491 Filed 8–24–09; 8:45 am]
BILLING CODE 3510–22–S
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
RIN 0648–XQ20
Incidental Takes of Marine Mammals
During Specified Activities; Marine
Geophysical Survey in the Northeast
Pacific Ocean, August–October, 2009
AGENCY: National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; issuance of incidental
take authorization.
SUMMARY: In accordance with the
Marine Mammal Protection Act
(MMPA) regulations, notification is
hereby given that NMFS has issued an
Incidental Harassment Authorization
(IHA) to Lamont-Doherty Earth
Observatory (L-DEO), a part of Columbia
University, to take small numbers of
marine mammals, by Level B
harassment only, incidental to
conducting a marine seismic survey in
the northeast Pacific Ocean.
DATES: Effective August 19, 2009
through October 13, 2009.
ADDRESSES: A copy of the IHA and the
application are available by writing to P.
Michael Payne, Chief, Permits,
Conservation and Education Division,
Office of Protected Resources, National
Marine Fisheries Service, 1315 EastWest Highway, Silver Spring, MD
20910–3225 or by telephoning the
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[Federal Register Volume 74, Number 163 (Tuesday, August 25, 2009)]
[Notices]
[Pages 42858-42861]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: E9-20493]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-955]
Certain Magnesia Carbon Bricks from the People's Republic of
China: Initiation of Countervailing Duty Investigation
AGENCY: Import Administration, International Trade Administration,
Department of Commerce
DATES: Effective Date: August 25, 2009.
FOR FURTHER INFORMATION CONTACT: Justin Neuman, Toni Page, or Nicholas
Czajkowski; AD/CVD Operations, Office 6, Import Administration,
International Trade Administration, U.S. Department of Commerce, 14th
Street and Constitution Avenue NW, Washington, D.C. 20230; telephone:
(202) 482-0486, (202) 482-1398, or (202) 482-1395 respectively.
SUPPLEMENTARY INFORMATION:
The Petitions
On July 29, 2009, the Department of Commerce (the Department)
received countervailing duty (CVD) and antidumping (AD) petitions
concerning imports of certain magnesia carbon bricks (magnesia carbon
bricks) from the People's Republic of China (PRC) filed in proper form
by Resco Products, Inc. (Petitioner), domestic producers of magnesia
carbon bricks. See ``Petition for the Imposition of Countervailing
Duties: Certain Magnesia Carbon Bricks from the People's Republic of
China'' (CVD PRC Petition). On August 3, 2009, the Department spoke via
telephone with petitioner to request additional information and
clarification of certain areas of the CVD petition involving
countervailable subsidy allegations. See Memorandum from Mark Hoadley,
Program Manager, AD/CVD Operations, Office 6, to the File, ``CVD
Petition for Investigation of Magnesia Carbon Bricks from the People's
Republic of China (PRC): Phone Call with Counsel for Petitioner'' dated
August 4, 2009. Based on the Department's requests, the Petitioner
timely filed additional information on August 7, 2009. On August 4 and
12, 2009, the Department issued additional requests for information and
clarification of certain areas of the CVD PRC Petition. Based on the
Department's requests, Petitioner timely filed additional information
pertaining to the CVD PRC Petition on August 10 and 14, 2009,
(hereinafter, Supplement to the CVD PRC Petition dated August 10, 2009
and Second Supplement to the CVD PRC Petition, dated August 14, 2009).
In accordance with section 702(b)(1) of the Tariff Act of 1930, as
amended (the Act), Petitioner alleges that producers/exporters of
magnesia carbon bricks in the PRC received countervailable subsidies
within the meaning of section 701 and 771(5) of the Act, and that
imports from these exporters/producers materially injure, or threaten
material injury to, an industry in the United States.
The Department finds that Petitioner filed this CVD PRC Petition on
behalf of the domestic industry because it is an interested party as
defined in section 771(9)(C) of the Act, and Petitioner has
demonstrated sufficient industry support with respect to the
countervailing duty investigation that it is requesting the Department
to initiate (see ``Determination of Industry Support for the CVD
Petition'' below).
Period of Investigation
The anticipated period of investigation (POI) is calendar year
2008. See 19 CFR 351.204(b)(2).
Scope of Investigation
The products covered by this investigation are magnesia carbon
bricks from the PRC. For a full description of the scope of the
investigation, please see the ``Scope of Investigation'' in Appendix I
to this notice.
Comments on Scope of Investigation
During our review of the CVD PRC Petition, we discussed the scope
with Petitioner to ensure that it is an accurate reflection of the
products for which the domestic industry is seeking relief. Moreover,
as discussed in the preamble to the regulations (See Antidumping
Duties; Countervailing Duties; Final Rule, 62 FR 27296, 27323 (May 19,
1997)), we are setting aside a period for interested parties to raise
issues regarding product coverage. The Department encourages all
interested parties to submit such comments by September 8, 2009.\1\
Comments should be addressed to Import Administration's APO/Dockets
Unit, Room 1870, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230. The period of scope
consultations is intended to provide the Department with ample
opportunity to consider all comments and to consult with parties prior
to the issuance of the preliminary determinations.
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\1\ September 8, 2009 is the first business day after twenty
calendar days from the signature date of this notice.
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[[Page 42859]]
Consultations
Pursuant to section 702(b)(4)(A)(ii) of the Act, the Department
held consultations with the government of the PRC (hereinafter, the
GOC) with respect to the CVD PRC Petition on August 7, 2009. See
Memorandum to the File, Countervailing Duty Petitions on Certain
Magnesia Carbon Bricks from the People's Republic of China:
Consultations with the Government of the People's Republic of China, on
file in the Central Records Unit (CRU), Room 1117 of the main
Department of Commerce building.
Determination of Industry Support for the CVD Petition
Section 702(b)(1) of the Act requires that a petition be filed on
behalf of the domestic industry. Section 702(c)(4)(A) of the Act
provides that a petition meets this requirement if the domestic
producers or workers who support the petition account for: (i) at least
25 percent of the total production of the domestic like product; and
(ii) more than 50 percent of the production of the domestic like
product produced by that portion of the industry expressing support
for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of
the Act provides that, if the petition does not establish support of
domestic producers or workers accounting for more than 50 percent of
the total production of the domestic like product, the Department
shall: (i) poll the industry or rely on other information in order to
determine if there is support for the petition, as required by
subparagraph (A); or (ii) determine industry support using a
statistically valid sampling method.
Section 771(4)(A) of the Act defines the ``industry'' as the
producers as a whole of a domestic like product. Thus, to determine
whether a petition has the requisite industry support, the statute
directs the Department to look to producers and workers who produce the
domestic like product. The United States International Trade Commission
(ITC), which is responsible for determining whether ``the domestic
industry'' has been injured, must also determine what constitutes a
domestic like product in order to define the industry. While both the
Department and the ITC must apply the same statutory definition
regarding the domestic like product (see section 771(10) of the Act),
they do so for different purposes and pursuant to a separate and
distinct authority. In addition, the Department's determination is
subject to limitations of time and information. Although this may
result in different definitions of the like product, such differences
do not render the decision of either agency contrary to law. See USEC,
Inc. v. United States, 132 F. Supp. 2d 1, 8 (Ct. Int'l Trade 2001),
citing Algoma Steel Corp. Ltd. v. United States, 688 F. Supp. 639, 644
(Ct. Int'l Trade 1988), aff'd 865 F.2d 240 (Fed. Cir. 1989), cert.
denied 492 U.S. 919 (1989).
Section 771(10) of the Act defines the domestic like product as ``a
product which is like, or in the absence of like, most similar in
characteristics and uses with, the article subject to an investigation
under this title.'' Thus, the reference point from which the domestic
like product analysis begins is ``the article subject to an
investigation'' (i.e., the class or kind of merchandise to be
investigated, which normally will be the scope as defined in the
petition).
With regard to the domestic like product, Petitioner does not offer
a definition of domestic like product distinct from the scope of the
investigations. Based on our analysis of the information submitted on
the record, we have determined that magnesia carbon bricks constitute a
single domestic like product and we have analyzed industry support in
terms of that domestic like product. For a discussion of the domestic
like product analysis in this case, see Countervailing Duty
Investigation Initiation Checklist: Magnesia Carbon Bricks from the PRC
(CVD Initiation Checklist) at Attachment II, Analysis of Industry
Support for the Petitions Covering Certain Magnesia Carbon Bricks from
the People's Republic of China and Mexico, dated concurrently with this
notice and on file in the CRU, Room 1117 of the main Department of
Commerce building.
In determining whether Petitioner has standing under section
702(c)(4)(A) of the Act, we considered the industry support data
contained in the CVD PRC Petition with reference to the domestic like
product as defined in the ``Scope of Investigations,'' Appendix I of
this notice. To establish industry support, Petitioner provided its own
2008 production of the domestic like product, as well as the production
of the two supporters of the CVD PRC Petition, and compared this to the
estimated total production of the domestic like product for the entire
domestic industry. See the CVD PRC Petition, at Exhibits 2-4,
Supplement to the CVD PRC Petition, dated August 10, 2009, at 8-12, and
Exhibits R2-R-6, and Second Supplement to the CVD PRC Petition, dated
August 14, 2009, at 1-2. Petitioner estimated total 2008 production of
the domestic like product based on its own production data, data from
the two supporters of the CVD PRC Petition, and knowledge of the U.S.
industry. See the CVD PRC Petition, at Exhibits 2-4, Supplement to the
CVD PRC Petition, dated August 10, 2009, at 8-12, and Exhibits R2-R-6,
and Second Supplement to the CVD PRC Petition, dated August 14, 2009,
at 1-2; see also CVD Initiation Checklist at Attachment II.
Our review of the data provided in the CVD PRC Petition, the
supplemental submissions, and other information readily available to
the Department indicates that Petitioner has established industry
support. First, the CVD PRC Petition established support from domestic
producers (or workers) accounting for more than 50 percent of the total
production of the domestic like product and, as such, the Department is
not required to take further action in order to evaluate industry
support (e.g., polling). See section 702(c)(4)(D) of the Act, see also
CVD Initiation Checklist at Attachment II. Second, the domestic
producers (or workers) have met the statutory criteria for industry
support under section 702(c)(4)(A)(i) of the Act because the domestic
producers (or workers) who support the CVD PRC Petition account for at
least 25 percent of the total production of the domestic like product.
See CVD Initiation Checklist at Attachment II. Finally, the domestic
producers (or workers) have met the statutory criteria for industry
support under section 702(c)(4)(A)(ii) of the Act because the domestic
producers (or workers) who support the CVD PRC Petition account for
more than 50 percent of the production of the domestic like product
produced by that portion of the industry expressing support for, or
opposition to, the CVD PRC Petition. Accordingly, the Department
determines that the CVD PRC Petition was filed on behalf of the
domestic industry within the meaning of section 702(b)(1) of the Act.
See id.
The Department finds that Petitioner filed the CVD PRC Petition on
behalf of the domestic industry because it is an interested party as
defined in section 771(9)(C) of the Act and it has demonstrated
sufficient industry support with respect to the countervailing
investigation that it is requesting the Department to initiate. See id.
Injury Test
Because the PRC is a ``Subsidies Agreement Country'' within the
meaning of section 701(b) of the Act, section 701(a)(2) of the Act
applies to this investigation. Accordingly, the ITC must determine
whether imports of the subject merchandise from the PRC
[[Page 42860]]
materially injure, or threaten material injury to, a U.S. industry.
Allegations and Evidence of Material Injury and Causation
Petitioner alleges that imports of magnesia carbon bricks from the
PRC are benefitting from countervailable subsidies and that such
imports are causing, or threaten to cause, material injury to the
domestic industry producing magnesia carbon bricks. In addition,
Petitioner alleges that subsidized imports exceed the negligibility
threshold provided for under section 771(24)(A) of the Act.
Petitioner contends that the industry's injured condition is
illustrated by reduced market share, underselling and price depressing
and suppressing effects, increased import penetration, lost sales and
revenue, reduced production, reduced capacity utilization, reduced
shipments, reduced employment, and overall poor financial performance.
We have assessed the allegations and supporting evidence regarding
material injury, threat of material injury, and causation, and we have
determined that these allegations are properly supported by adequate
evidence and meet the statutory requirements for initiation. See CVD
Initiation Checklist at Attachment III, Analysis of Allegations and
Evidence of Material Injury and Causation for the Petitions Covering
Certain Magnesia Carbon Bricks from the People's Republic of China and
Mexico.
Initiation of Countervailing Duty Investigation
Section 702(b)(1) of the Act requires the Department to initiate a
CVD proceeding whenever an interested party files a CVD petition on
behalf of an industry that: (1) alleges the elements necessary for an
imposition of a duty under section 701(a) of the Act; and (2) is
accompanied by information reasonably available to the petitioners
supporting the allegations.
The Department has examined the CVD PRC Petition on magnesia carbon
bricks from the PRC and finds that it complies with the requirements of
section 702(b)(1) of the Act. Therefore, in accordance with section
702(b)(1) of the Act, we are initiating a CVD investigation to
determine whether producers/exporters of magnesia carbon bricks in the
PRC receive countervailable subsidies. For a discussion of evidence
supporting our initiation determination, see CVD Initiation Checklist.
We are including in our investigation the following programs
alleged in the CVD PRC Petition to provide countervailable subsidies to
producers/exporters of the subject merchandise:
A. Provision of Inputs for Less than Adequate Remuneration (LTAR)
1. Provision of Land-Use Rights to State-Owned Enterprises (SOEs)
for LTAR
2. Provision of Electricity at LTAR
B. Export Restraints of Raw Materials
C. Tax Benefit Programs
1. Two Free/Three Half Program for Foreign-Invested Enterprises
(FIEs)
2. Income Tax Reductions for Export-Oriented FIEs
3. Preferential Income Tax Policy for Enterprises in the Northeast
Region
4. Forgiveness of Tax Arrears for Enterprises in the Old Industrial
Bases of Northeast China
5. Location-Based Income Tax Reduction Programs for FIEs
6. Local Income Tax Exemption and Reduction Programs for
``Productive'' FIEs
7. Domestic Preference Tax Benefits
a. Income Tax Credits for Domestically Owned Companies Purchasing
Domestically Produced Equipment
b. Income Tax Credits for FIEs Purchasing Domestically Produced
Equipment
c. VAT Rebates on Purchases of Domestically Produced Equipment
8. Preferential Tax Programs for Enterprises Recognized as High or
New Technology Enterprises
D. Northeast Revitalization Program and Related Provincial Policies
a. E. Direct Grants
1. The State Key Technology Renovation Project Fund
2. Famous Brands Programs
F. Grants to Companies for ``Outward Expansion'' and Export Performance
in Guangdong Province
G. Preferential Loans and Directed Credit to the Magnesia Carbon Brick
Industry
H. Cash Grant Programs
1. Fund for Supporting Technological Innovation for Technological
Small- and Medium-Sized Enterprises (SMEs)
2. Development Fund for SMEs
3. Fund for International Market Exploration by SMEs
I. Zhejiang Province Program to Rebate Antidumping Costs
For further information explaining why the Department is
investigating these programs, see CVD Initiation Checklist.
We are not including in our investigation the following programs
alleged to benefit producers/exporters of the subject merchandise in
the PRC:
A. Provision of Water for Less Than Adequate Remuneration
B. Provision of Natural Gas for Less Than Adequate Remuneration
C. VAT and Tariff Exemptions for Purposes of Fixed Assets Under the
Foreign Trade Development Fund Program
D. Shenzhen City Program to Rebate Antidumping Costs
For further information explaining why the Department is not
initiating an investigation of these programs, see CVD Initiation
Checklist.
Respondent Selection
For this investigation, the Department intends to select
respondents based on U.S. Customs and Border Protection (CBP) data for
U.S. imports during the POI (i.e., calendar year 2008). We intend to
release the CBP data under Administrative Protective Order (APO) to all
parties with access to information protected by APO within five days of
the announcement of the initiation of this investigation. Interested
parties may submit comments regarding the CBP data and respondent
selection within seven calendar days of publication of this notice. We
intend to make our decision regarding respondent selection within 20
days of publication of this notice.
Interested parties must submit applications for disclosure under
APO in accordance with 19 CFR 351.305(b). Instructions for filing such
applications may be found on the Department's website at https://ia.ita.doc.gov/apo.
Distribution of Copies of the CVD Petition
In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR
351.202(f), a copy of the public version of the CVD PRC Petition has
been provided to the representatives of the GOC. Because of the
particularly large number of producers/exporters identified in the CVD
PRC Petition, the Department considers the service of the public
version of the petition to the foreign producers/exporters satisfied by
the delivery of the public version to the GOC, consistent with 19 CFR
351.203(c)(2).
ITC Notification
We have notified the ITC of our initiation, as required by section
702(d) of the Act.
Preliminary Determination by the ITC
The ITC will preliminarily determine, within 45 days after the date
on which the petition was filed, whether there is a reasonable
indication that imports of subsidized magnesia carbon bricks from the
PRC materially injure, or threaten material injury to, a U.S. industry.
See
[[Page 42861]]
section 703(a)(2) of the Act. A negative ITC determination will result
in the investigation being terminated; see section 703(a)(1) of the
Act. Otherwise, the investigation will proceed according to statutory
and regulatory time limits.
This notice is issued and published pursuant to section 777(i) of
the Act.
Dated: August 18, 2009.
Carole Showers,
Acting Deputy Assistant Secretary for Policy and Negotiations.
Appendix I
Scope of the Investigation
Imports covered by this petition consist of certain chemically
bonded (resin or pitch), magnesia carbon bricks with a magnesia
component of at least 70 percent magnesia (``MgO'') by weight,
regardless of the source of raw materials for the MgO, with carbon
levels ranging from trace amounts to 30 percent by weight, regardless
of enhancements, (for example, magnesia carbon bricks can be enhanced
with coating, grinding, tar impregnation or coking, high temperature
heat treatments, anti-slip treatments or metal casing) and regardless
of whether or not anti-oxidants are present (for example, antioxidants
can be added to the mix from trace amounts to 15 percent by weight as
various metals, metal alloys, and metal carbides). Certain magnesia
carbon bricks that are the subject of this investigation are currently
classifiable under subheadings 6902.10.10.00, 6902.10.50.00,
6815.91.00.00, and 6815.99 of the Harmonized Tariff Schedule of the
United States (HTSUS). While HTSUS subheadings are provided for
convenience and customs purposes, the written description is
dispositive.
[FR Doc. E9-20493 Filed 8-24-09; 8:45 am]
BILLING CODE 3510-DS-S
