Certain Potassium Phosphate Salts from the People's Republic of China: Preliminary Affirmative Determination of Critical Circumstances in the Countervailing Duty Investigation, 24575-24577 [2010-10302]
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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices
may apply an adverse inference. The
PRC-wide entity did not respond to the
Department’s request for information.
Thus, we are using facts available, in
accordance with section 776(a) of the
Act, and, pursuant to section 776(b) of
the Act, we also find that AFA is
warranted so that the PRC-wide entity
does not obtain a more favorable result
by failing to cooperate than if it had
fully cooperated. Accordingly, we
preliminarily find that there were
massive imports of merchandise from
the PRC-wide entity.
Further, in some cases the Department
has also considered the import volume
from the ITC Dataweb as further
evidence supporting an affirmative
determination of critical circumstances
based on AFA.8 Here, we find that the
ITC Dataweb import statistics further
support the Department’s determination
that the volume of imports of subject
merchandise in the post-petition period
are consistent with an AFA finding that
these imports were massive.
sroberts on DSKD5P82C1PROD with NOTICES
Separate-Rate Applicants
Because it has been the Department’s
practice to conduct its massive imports
analysis of separate rate companies 9
based on the experience of investigated
companies, we did not request monthly
shipment information from the three
separate-rate applicants. However,
where mandatory respondents have
received AFA, we have not imputed
those adverse inferences of massive
imports to the non-individually
examined companies receiving a
separate rate. Instead, the Department
has relied upon the ITC Dataweb import
statistics where appropriate in
determining whether there have been
massive imports for the separate-rate
companies. Accordingly, as the basis for
determining whether imports were
massive for these separate-rate
companies, we are relying on ITC
Dataweb import statistics as evidence
that imports in the post-petition period
were massive for those companies. As
stated above, in this case, import
volume data shows an increase of 86.1
percent of salts imports from the PRC
during the comparison period. See
Petitioners’ Allegation at 10. Thus,
pursuant to section 351.206(h) of the
Department’s regulations, we determine
8 See, e.g., Preliminary Determination of Critical
Circumstances: Certain Small Diameter Carbon and
Alloy Seamless Standard Pipe and Pressure Pipe
from the Czech Republic, 65 FR 33803 (May 25,
2000) and Notice of Final Determination of Sales at
Less Than Fair Value: Certain Small Diameter
Carbon and Alloy Seamless Standard, Line, and
Pressure Pipe from the Czech Republic, 65 FR
39363 (June 26, 2000) and accompanying Issues and
Decision Memorandum.
9 See, e.g., Carbon Steel Pipe and SDGE.
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that this increase, being greater than 15
percent, shows that imports in the
comparison period were massive for the
separate-rate companies.
Critical Circumstances
Record evidence indicates that
importers of salts knew, or should have
known, that exporters were selling the
merchandise at LTFV, and that there
was likely to be material injury by
reason of such sales. In addition, record
evidence indicates that the PRC-wide
entity and the separate-rate applicants
had massive imports during a relatively
short period. Therefore, in accordance
with section 733(e)(1) of the Act, we
preliminarily find that there is reason to
believe or suspect that critical
circumstances exist for imports of
subject merchandise from the PRC-wide
entity (which includes SD BNI and
Sichuan Blue Sword) and the separaterate companies (Snow-Apple Group
Limited, Tianjin Chengyi International
Trading (Tianjin) Co., Limited, Wenda
Co., Ltd., and Yunnan Newswift
Company Ltd.) in this antidumping duty
investigation. See section 733(f) of the
Act and 19 CFR 351.206(c)(2)(ii).
Suspension of Liquidation
In accordance with section
703(e)(2)(A) of the Act, we are directing
CBP to suspend liquidation of any
unliquidated entries of subject
merchandise from the PRC entered, or
withdrawn from warehouse for
consumption, on or after December 16,
2009, which is 90 days prior to the date
of publication of the Preliminary
Determination in the Federal Register.
ITC Notification
In accordance with section 733(f) of
the Act, we have notified the ITC of our
preliminary determination.
Public Comment
Since this determination is being
made subsequent to the due dates for
public comment as published in our
notice of preliminary determination of
sales at LTFV, we will accept written
comments limited to this preliminary
determination of critical circumstances
if they are submitted to the Assistant
Secretary for Import Administration no
later than five days after the publication
of this notice.
This determination is published
pursuant to section 733(f) of the Act and
19 CFR 351.206(c)(2)(ii).
Dated: April 29, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2010–10583 Filed 5–4–10; 8:45 am]
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24575
DEPARTMENT OF COMMERCE
International Trade Administration
[C–570–963]
Certain Potassium Phosphate Salts
from the People’s Republic of China:
Preliminary Affirmative Determination
of Critical Circumstances in the
Countervailing Duty Investigation
AGENCY: Import Administration,
International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce
(‘‘the Department’’) has preliminarily
determined that critical circumstances
exist with respect to imports of certain
potassium phosphate salts (‘‘phosphate
salts’’ or ‘‘subject merchandise’’) from the
People’s Republic of China (‘‘PRC’’).
DATES: Effective Date: May 5, 2010
FOR FURTHER INFORMATION CONTACT:
Andrew Huston or Gene Calvert, AD/
CVD Operations, Office 6, Import
Administration, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue, NW, Washington, DC 20230;
telephone: (202) 482–4261 and (202)
482–3586, respectively.
SUPPLEMENTARY INFORMATION:
Background
This investigation was initiated on
October 14, 2009. See Certain Sodium
and Potassium Phosphate Salts From
the People’s Republic of China:
Initiation of Countervailing Duty
Investigation, 74 FR 54778 (October 23,
2009). The products covered by this
investigation and the title of this
investigation were modified from
‘‘Certain Sodium and Potassium
Phosphate Salts from the People’s
Republic of China’’ to ‘‘Certain
Potassium Phosphate Salts from the
People’s Republic of China’’ as a result
of the U.S. International Trade
Commission’s (‘‘ITC’’) preliminary
determination of no material injury or
threat of material injury with regard to
imports of sodium tripolyphosphate
from the PRC. See Certain Potassium
Phosphate Salts from the People’s
Republic of China: Preliminary
Affirmative Countervailing Duty
Determination and Alignment of Final
Countervailing Duty Determination with
Final Antidumping Duty Determination,
75 FR 10466 (March 8, 2010)
(Preliminary Determination), at the
section ‘‘Case History.’’ As mandatory
company respondents in this
investigation, the Department selected
Lianyungang Mupro Import Export Co.,
Ltd. (‘‘Mupro’’); Mianyang Aostar
Phosphate Chemical Industry Co., Ltd.
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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices
(‘‘Aostar’’); and Shifang Anda Chemicals
Co., Ltd. (‘‘Anda’’) (collectively, ‘‘the
mandatory company respondents’’). On
December 4, 2009, the Department
issued countervailing duty (‘‘CVD’’)
investigation questionnaires to the
Government of the People’s Republic of
China (‘‘GOC’’) and to the mandatory
company respondents. Neither the GOC
nor the three mandatory company
respondents submitted any responses to
the Department’s questionnaires. As
such, our preliminary determination
was based on the application of adverse
facts available (‘‘AFA’’) in accordance
with sections 776(a) and (b) of the Tariff
Act of 1930, as amended (‘‘the Act’’). See
Preliminary Determination.
On April 6, 2010, ICL Performance
Products LP and Prayon, Inc.
(collectively, ‘‘Petitioners’’), alleged that
critical circumstances exist with respect
to imports of certain potassium
phosphate salts from the PRC. See
Petitioners’ April 6, 2010 submission
(‘‘Allegation of Critical Circumstances’’).
In accordance with 19 CFR
351.206(c)(2)(ii), when a critical
circumstances allegation is filed later
than 20 days before the scheduled date
of the preliminary determination (as
was done in this case), the Department
must issue its preliminary
determination of critical circumstances
not later than 30 days after the
petitioner submits the allegation.
sroberts on DSKD5P82C1PROD with NOTICES
Period of Investigation
The period covered by this
investigation (i.e., ‘‘the POI’’) is calendar
year 2008 (January 1, 2008 through
December 31, 2008).
Scope of the Investigation
The phosphate salts covered by this
investigation include anhydrous
Monopotassium Phosphate (MKP),
anhydrous Dipotassium Phosphate
(DKP) and Tetrapotassium
Pyrophosphate (TKPP), whether
anhydrous or in solution (collectively
‘‘phosphate salts’’).
TKPP, also known as normal
potassium pyrophosphate, diphosphoric
acid or tetrapotassium salt, is a
potassium salt with the formula K4P2O7.
The CAS registry number for TKPP is
7320–34–5. TKPP is typically 18.7%
phosphorus and 47.3% potassium. It is
generally greater than or equal to 43.0%
P2O5 content. TKPP is classified under
heading 2835.39.1000, Harmonized
Tariff Schedule of the United States
(‘‘HTSUS’’).
MKP, also known as potassium
dihydrogen phosphate, KDP, or
monobasic potassium phosphate, is a
potassium salt with the formula
KH2PO4. The CAS registry number for
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MKP is 7778–77–0. MKP is typically
22.7% phosphorus, 28.7% potassium
and 52% P2O5. MKP is classified under
heading 2835.24.0000, HTSUS.
DKP, also known as dipotassium salt,
dipotassium hydrogen orthophosphate
or potassium phosphate, dibasic, has a
chemical formula of K2HPO4. The CAS
registry number for DKP is 7758–11–4.
DKP is typically 17.8% phosphorus,
44.8% potassium and 40% P2O5
content. DKP is classified under heading
2835.24.0000, HTSUS.
The products covered by this
investigation include the foregoing
phosphate salts in all grades, whether
food grade or technical grade. The
products covered by this investigation
include anhydrous MKP and DKP
without regard to the physical form,
whether crushed, granule, powder or
fines. Also covered are all forms of
TKPP, whether crushed, granule,
powder, fines or solution.
For purposes of the investigation, the
narrative description is dispositive, not
the tariff heading, American Chemical
Society, CAS registry number or CAS
name, or the specific percentage
chemical composition identified above.
Allegation of Critical Circumstances
In their Allegation of Critical
Circumstances, Petitioners contend that
there have been massive imports over a
relatively short period of certain
potassium phosphate salts from the PRC
since the filing of the petition.
Petitioners have provided import
statistics released by the U.S.
International Trade Commission (‘‘ITC’’)
and shipment information for the
merchandise under investigation. See
Allegation of Critical Circumstances, at
6–7. Petitioners argue that these data
demonstrate that imports of subject
merchandise from the PRC have
increased more than the fifteen percent
required to be considered ‘‘massive’’
under 19 CFR 351.206(h)(2).
In addition, Petitioners allege that the
phosphate salts industry in the PRC has
benefitted from subsidies that are
inconsistent with the World Trade
Organization’s Agreement on Subsidies
and Countervailing Measures
(‘‘Subsidies Agreement’’). See Allegation
of Critical Circumstances at 2–3.1
1 Specifically, Petitioners cite export subsidies
and import substitution subsidies which the
Department preliminarily determined to be
countervailable in the instant investigation, such as
Income Tax Exemption Programs for Export
Oriented Industries; Income Tax Credit on
Purchases of Domestically Produced Equipment;
Value Added Tax Refund for FIEs Purchasing
Domestically Produced Equipment; and Discount
Loans for Export Oriented Industries. See
Preliminary Determination, 75 FR at 10469.
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In accordance with 19 CFR
351.206(c)(2)(ii), because the petitioners
submitted a critical circumstances
allegation later than 20 days before the
scheduled date of the preliminary
determination, the Department must
issue a preliminary critical
circumstances determination within 30
days after the petitioner submits the
allegation. See, e.g., Change in Policy
Regarding Timing of Issuance of Critical
Circumstances Determinations, 63 FR
55364 (October 15, 1998). Critical
Circumstances Analysis
Section 703(e)(1) of the Act provides
that the Department will preliminarily
determine that critical circumstances
exist if there is a reasonable basis to
believe or suspect that: (A) The alleged
countervailable subsidy is inconsistent
with the Subsidies Agreement, and (B)
there have been massive imports of the
subject merchandise over a relatively
short period.
In determining whether an alleged
countervailable subsidy is inconsistent
with the Subsidies Agreement, the
Department 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 Subsidies
Agreement). See, e.g., Final Affirmative
Countervailing Duty Determination and
Final Negative Critical Circumstances
Determination Carbon and Certain Alloy
Steel Wire Rod from Germany, 67 FR
55808, 55809 (August 30, 2002).
Section 351.206(h)(1) of the
Department’s regulations provides that,
in determining whether imports of the
subject merchandise have been
‘‘massive,’’ the Department normally
will examine: (i) The volume and value
of the imports; (ii) seasonal trends; and
(iii) the share of domestic consumption
accounted for by the imports. In
addition, the Department will not
consider imports to be massive unless
imports during the ‘‘relatively short
period’’ (‘‘comparison period’’) have
increased by at least fifteen percent
compared to imports during an
‘‘immediately preceding period of
comparable duration’’ (‘‘base period’’).
See 19 CFR 351.206(h)(2).
Section 351.206(i) of the Department’s
regulations defines ‘‘relatively short
period’’ as normally being the period
beginning on the date the proceeding
commences (i.e., the date the petition is
filed) and ending at least three months
later. However, if the Department finds
that importers, exporters, or producers
had reason to believe, at some time prior
to the beginning of the proceeding, that
a proceeding was likely, then the
Department may consider a period of
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not less than three months from that
earlier time. See 19 CFR 351.206(i).
Application of Facts Available to the
Critical Circumstances Analysis for the
Mandatory Company Respondents
Sections 776(a)(1) and (2) of the Act
provide that the Department shall apply
‘‘facts otherwise available’’ if, inter alia,
necessary information is not on the
record or an interested party or any
other person: (A) Withholds information
that has been requested; (B) fails to
provide information within the
deadlines established, or in the form
and manner requested by the
Department, subject to subsections (c)(1)
and (e) of section 782 of the Act; (C)
significantly impedes a proceeding; or
(D) provides information that cannot be
verified as provided by section 782(i) of
the Act. In the instant case, as
referenced above, the GOC did not
respond to the Department’s November
10, 2009 CVD investigation
questionnaire, and the three mandatory
respondent companies, Mupro, Aostar,
and Anda, did not respond to the
Department’s December 4, 2009 CVD
investigation questionnaire. Because the
GOC and the mandatory company
respondents have decided to not
participate in this investigation, we
have made this preliminary
determination with respect to critical
circumstances on facts otherwise
available, pursuant to section
776(a)(2)(C) of the Act.
Section 776(b) of the Act further
provides that the Department may use
an adverse inference in applying the
facts otherwise available when a party
has failed to cooperate by not acting to
the best of its ability to comply with a
request for information. Section 776(b)
of the Act also authorizes the
Department to use as adverse facts
available information derived from the
petition, the final determination, a
previous administrative review, or other
information placed on the record.
Because the GOC and the mandatory
company respondents chose not to
respond to the Department’s CVD
investigation questionnaire, we have
determined that the GOC and the
mandatory company respondents did
not cooperate to the best of their ability
in this investigation and that, in
selecting from among the facts available,
with respect to critical circumstances,
an adverse inference is warranted,
pursuant to section 776(b) of the Act. As
such, we are making an adverse
inference that Mupro, Aostar, and Anda
each benefitted from import substitution
and export subsidies, which are
inconsistent with the Subsidies
Agreement, and that these companies
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have had ‘‘massive imports’’ over a
‘‘relatively short period.’’ Given the
nature of these allegations, and the lack
of cooperation from the GOC and the
mandatory company respondents, we
preliminarily determine that critical
circumstances exist for Mupro, Aostar,
and Anda, pursuant to sections 703(e)
and 776(a) and (b) of the Act, and 19
CFR 351.206(c)(2)(ii).
Critical Circumstances Analyses for All
Other Producers/Exporters
To determine whether all other PRC
producers/exporters of the subject
merchandise under investigation have
benefitted from countervailable
subsidies that are inconsistent with the
Subsidies Agreement, we are basing our
finding on the decision applied to
Mupro, Aostar, and Anda, and,
therefore, find that all other producers/
exporters have benefitted from import
substitution and export subsidies. See,
e.g., Notice of Final Determination of
Sales at Less Than Fair Value and
Affirmative Final Determination of
Critical Circumstances: Glycine from
Japan, 72 FR 67271, 67274 (November
28, 2007) (Glycine from Japan). In the
Preliminary Determination, the
subsidies determined to be
countervailable included subsidy
programs that are inconsistent with the
Subsidies Agreement, such as export
subsidy programs (e.g., Income Tax
Exemption Programs for Export
Oriented Industries and Discount Loans
for Export Oriented Industries), and
import substitution subsidy programs
(e.g., Income Tax Credit on Purchases of
Domestically Produced Equipment and
Refund for FIEs Purchasing
Domestically Produced Equipment). See
Preliminary Determination, 75 FR at
10469.
To determine whether there are
‘‘massive imports’’ over a ‘‘relatively
short period,’’ for all other producers/
exporters, we have relied on U.S. import
statistics. In their Allegation of Critical
Circumstances, Petitioners have
provided ITC monthly import statistics
for the merchandise under investigation
for the period June 2009 through
January 2010. Consistent with Glycine
from Japan, we are using the ITC
monthly import statistics to determine
whether there are ‘‘massive imports’’
with respect to all other producers/
exporters. Based on our analyses of
these import data, we preliminarily find
that imports of subject merchandise
from the PRC did increase by more than
fifteen percent during the ‘‘relatively
short period’’ (i.e., between June 2009
through September 2009, and October
2009 through January 2010). Therefore,
we preliminarily determine that the
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24577
requirements of section 703(e)(1)(B) of
the Act have been satisfied, and that
critical circumstances exist for all other
PRC producers/exporters of subject
merchandise.
Conclusion
Given the analysis above, we
preliminarily determine that critical
circumstances exist for imports of
certain potassium phosphate salts from
the PRC, pursuant to section 703(e)(1) of
the Act. We will make our final
determination concerning critical
circumstances for imports of certain
potassium salts from the PRC when we
make our final countervailing duty
determination, currently scheduled for
no later than May 24, 2010.
Suspension of Liquidation
In accordance with section
703(e)(2)(A) of the Act, we are directing
CBP to suspend liquidation of any
unliquidated entries of subject
merchandise from the PRC entered, or
withdrawn from warehouse for
consumption, on or after December 8,
2009, which is 90 days prior to the date
of publication of the Preliminary
Determination in the Federal Register.
International Trade Commission
Notification
In accordance with section 703(f) of
the Act, we will notify the ITC of this
preliminary determination.
Public Comment
Because this preliminary
determination is being made subsequent
to the deadline for public comment as
set forth in the Preliminary
Determination, we will accept written
comments limited to this preliminary
determination of critical circumstances
if they are submitted to the Assistant
Secretary for Import Administration no
later than five days after the publication
of this notice in accordance with the
filing requirements set forth in 19 CFR
351.303.
This preliminary determination is
issued and published pursuant to
sections 703(f) and 777(i) of the Act.
Dated: April 29, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import
Administration.
[FR Doc. 2010–10302 Filed 5–4–10; 8:45 am]
BILLING CODE 3510–DS–P
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Agencies
[Federal Register Volume 75, Number 86 (Wednesday, May 5, 2010)]
[Notices]
[Pages 24575-24577]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2010-10302]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-963]
Certain Potassium Phosphate Salts from the People's Republic of
China: Preliminary Affirmative Determination of Critical Circumstances
in the Countervailing Duty Investigation
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (``the Department'') has
preliminarily determined that critical circumstances exist with respect
to imports of certain potassium phosphate salts (``phosphate salts'' or
``subject merchandise'') from the People's Republic of China (``PRC'').
DATES: Effective Date: May 5, 2010
FOR FURTHER INFORMATION CONTACT: Andrew Huston or Gene Calvert, AD/CVD
Operations, Office 6, Import Administration, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue, NW, Washington, DC 20230; telephone: (202) 482-
4261 and (202) 482-3586, respectively.
SUPPLEMENTARY INFORMATION:
Background
This investigation was initiated on October 14, 2009. See Certain
Sodium and Potassium Phosphate Salts From the People's Republic of
China: Initiation of Countervailing Duty Investigation, 74 FR 54778
(October 23, 2009). The products covered by this investigation and the
title of this investigation were modified from ``Certain Sodium and
Potassium Phosphate Salts from the People's Republic of China'' to
``Certain Potassium Phosphate Salts from the People's Republic of
China'' as a result of the U.S. International Trade Commission's
(``ITC'') preliminary determination of no material injury or threat of
material injury with regard to imports of sodium tripolyphosphate from
the PRC. See Certain Potassium Phosphate Salts from the People's
Republic of China: Preliminary Affirmative Countervailing Duty
Determination and Alignment of Final Countervailing Duty Determination
with Final Antidumping Duty Determination, 75 FR 10466 (March 8, 2010)
(Preliminary Determination), at the section ``Case History.'' As
mandatory company respondents in this investigation, the Department
selected Lianyungang Mupro Import Export Co., Ltd. (``Mupro'');
Mianyang Aostar Phosphate Chemical Industry Co., Ltd.
[[Page 24576]]
(``Aostar''); and Shifang Anda Chemicals Co., Ltd. (``Anda'')
(collectively, ``the mandatory company respondents''). On December 4,
2009, the Department issued countervailing duty (``CVD'') investigation
questionnaires to the Government of the People's Republic of China
(``GOC'') and to the mandatory company respondents. Neither the GOC nor
the three mandatory company respondents submitted any responses to the
Department's questionnaires. As such, our preliminary determination was
based on the application of adverse facts available (``AFA'') in
accordance with sections 776(a) and (b) of the Tariff Act of 1930, as
amended (``the Act''). See Preliminary Determination.
On April 6, 2010, ICL Performance Products LP and Prayon, Inc.
(collectively, ``Petitioners''), alleged that critical circumstances
exist with respect to imports of certain potassium phosphate salts from
the PRC. See Petitioners' April 6, 2010 submission (``Allegation of
Critical Circumstances''). In accordance with 19 CFR 351.206(c)(2)(ii),
when a critical circumstances allegation is filed later than 20 days
before the scheduled date of the preliminary determination (as was done
in this case), the Department must issue its preliminary determination
of critical circumstances not later than 30 days after the petitioner
submits the allegation.
Period of Investigation
The period covered by this investigation (i.e., ``the POI'') is
calendar year 2008 (January 1, 2008 through December 31, 2008).
Scope of the Investigation
The phosphate salts covered by this investigation include anhydrous
Monopotassium Phosphate (MKP), anhydrous Dipotassium Phosphate (DKP)
and Tetrapotassium Pyrophosphate (TKPP), whether anhydrous or in
solution (collectively ``phosphate salts'').
TKPP, also known as normal potassium pyrophosphate, diphosphoric
acid or tetrapotassium salt, is a potassium salt with the formula
K4P2O7. The CAS registry number for
TKPP is 7320-34-5. TKPP is typically 18.7% phosphorus and 47.3%
potassium. It is generally greater than or equal to 43.0%
P2O5 content. TKPP is classified under heading
2835.39.1000, Harmonized Tariff Schedule of the United States
(``HTSUS'').
MKP, also known as potassium dihydrogen phosphate, KDP, or
monobasic potassium phosphate, is a potassium salt with the formula
KH2PO4. The CAS registry number for MKP is 7778-
77-0. MKP is typically 22.7% phosphorus, 28.7% potassium and 52%
P2O5. MKP is classified under heading
2835.24.0000, HTSUS.
DKP, also known as dipotassium salt, dipotassium hydrogen
orthophosphate or potassium phosphate, dibasic, has a chemical formula
of K2HPO4. The CAS registry number for DKP is
7758-11-4. DKP is typically 17.8% phosphorus, 44.8% potassium and 40%
P2O5 content. DKP is classified under heading
2835.24.0000, HTSUS.
The products covered by this investigation include the foregoing
phosphate salts in all grades, whether food grade or technical grade.
The products covered by this investigation include anhydrous MKP and
DKP without regard to the physical form, whether crushed, granule,
powder or fines. Also covered are all forms of TKPP, whether crushed,
granule, powder, fines or solution.
For purposes of the investigation, the narrative description is
dispositive, not the tariff heading, American Chemical Society, CAS
registry number or CAS name, or the specific percentage chemical
composition identified above.
Allegation of Critical Circumstances
In their Allegation of Critical Circumstances, Petitioners contend
that there have been massive imports over a relatively short period of
certain potassium phosphate salts from the PRC since the filing of the
petition. Petitioners have provided import statistics released by the
U.S. International Trade Commission (``ITC'') and shipment information
for the merchandise under investigation. See Allegation of Critical
Circumstances, at 6-7. Petitioners argue that these data demonstrate
that imports of subject merchandise from the PRC have increased more
than the fifteen percent required to be considered ``massive'' under 19
CFR 351.206(h)(2).
In addition, Petitioners allege that the phosphate salts industry
in the PRC has benefitted from subsidies that are inconsistent with the
World Trade Organization's Agreement on Subsidies and Countervailing
Measures (``Subsidies Agreement''). See Allegation of Critical
Circumstances at 2-3.\1\
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\1\ Specifically, Petitioners cite export subsidies and import
substitution subsidies which the Department preliminarily determined
to be countervailable in the instant investigation, such as Income
Tax Exemption Programs for Export Oriented Industries; Income Tax
Credit on Purchases of Domestically Produced Equipment; Value Added
Tax Refund for FIEs Purchasing Domestically Produced Equipment; and
Discount Loans for Export Oriented Industries. See Preliminary
Determination, 75 FR at 10469.
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In accordance with 19 CFR 351.206(c)(2)(ii), because the
petitioners submitted a critical circumstances allegation later than 20
days before the scheduled date of the preliminary determination, the
Department must issue a preliminary critical circumstances
determination within 30 days after the petitioner submits the
allegation. See, e.g., Change in Policy Regarding Timing of Issuance of
Critical Circumstances Determinations, 63 FR 55364 (October 15, 1998).
Critical Circumstances Analysis
Section 703(e)(1) of the Act provides that the Department will
preliminarily determine that critical circumstances exist if there is a
reasonable basis to believe or suspect that: (A) The alleged
countervailable subsidy is inconsistent with the Subsidies Agreement,
and (B) there have been massive imports of the subject merchandise over
a relatively short period.
In determining whether an alleged countervailable subsidy is
inconsistent with the Subsidies Agreement, the Department 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 Subsidies Agreement). See, e.g.,
Final Affirmative Countervailing Duty Determination and Final Negative
Critical Circumstances Determination Carbon and Certain Alloy Steel
Wire Rod from Germany, 67 FR 55808, 55809 (August 30, 2002).
Section 351.206(h)(1) of the Department's regulations provides
that, in determining whether imports of the subject merchandise have
been ``massive,'' the Department normally will examine: (i) The volume
and value of the imports; (ii) seasonal trends; and (iii) the share of
domestic consumption accounted for by the imports. In addition, the
Department will not consider imports to be massive unless imports
during the ``relatively short period'' (``comparison period'') have
increased by at least fifteen percent compared to imports during an
``immediately preceding period of comparable duration'' (``base
period''). See 19 CFR 351.206(h)(2).
Section 351.206(i) of the Department's regulations defines
``relatively short period'' as normally being the period beginning on
the date the proceeding commences (i.e., the date the petition is
filed) and ending at least three months later. However, if the
Department finds that importers, exporters, or producers had reason to
believe, at some time prior to the beginning of the proceeding, that a
proceeding was likely, then the Department may consider a period of
[[Page 24577]]
not less than three months from that earlier time. See 19 CFR
351.206(i).
Application of Facts Available to the Critical Circumstances Analysis
for the Mandatory Company Respondents
Sections 776(a)(1) and (2) of the Act provide that the Department
shall apply ``facts otherwise available'' if, inter alia, necessary
information is not on the record or an interested party or any other
person: (A) Withholds information that has been requested; (B) fails to
provide information within the deadlines established, or in the form
and manner requested by the Department, subject to subsections (c)(1)
and (e) of section 782 of the Act; (C) significantly impedes a
proceeding; or (D) provides information that cannot be verified as
provided by section 782(i) of the Act. In the instant case, as
referenced above, the GOC did not respond to the Department's November
10, 2009 CVD investigation questionnaire, and the three mandatory
respondent companies, Mupro, Aostar, and Anda, did not respond to the
Department's December 4, 2009 CVD investigation questionnaire. Because
the GOC and the mandatory company respondents have decided to not
participate in this investigation, we have made this preliminary
determination with respect to critical circumstances on facts otherwise
available, pursuant to section 776(a)(2)(C) of the Act.
Section 776(b) of the Act further provides that the Department may
use an adverse inference in applying the facts otherwise available when
a party has failed to cooperate by not acting to the best of its
ability to comply with a request for information. Section 776(b) of the
Act also authorizes the Department to use as adverse facts available
information derived from the petition, the final determination, a
previous administrative review, or other information placed on the
record. Because the GOC and the mandatory company respondents chose not
to respond to the Department's CVD investigation questionnaire, we have
determined that the GOC and the mandatory company respondents did not
cooperate to the best of their ability in this investigation and that,
in selecting from among the facts available, with respect to critical
circumstances, an adverse inference is warranted, pursuant to section
776(b) of the Act. As such, we are making an adverse inference that
Mupro, Aostar, and Anda each benefitted from import substitution and
export subsidies, which are inconsistent with the Subsidies Agreement,
and that these companies have had ``massive imports'' over a
``relatively short period.'' Given the nature of these allegations, and
the lack of cooperation from the GOC and the mandatory company
respondents, we preliminarily determine that critical circumstances
exist for Mupro, Aostar, and Anda, pursuant to sections 703(e) and
776(a) and (b) of the Act, and 19 CFR 351.206(c)(2)(ii).
Critical Circumstances Analyses for All Other Producers/Exporters
To determine whether all other PRC producers/exporters of the
subject merchandise under investigation have benefitted from
countervailable subsidies that are inconsistent with the Subsidies
Agreement, we are basing our finding on the decision applied to Mupro,
Aostar, and Anda, and, therefore, find that all other producers/
exporters have benefitted from import substitution and export
subsidies. See, e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Affirmative Final Determination of Critical
Circumstances: Glycine from Japan, 72 FR 67271, 67274 (November 28,
2007) (Glycine from Japan). In the Preliminary Determination, the
subsidies determined to be countervailable included subsidy programs
that are inconsistent with the Subsidies Agreement, such as export
subsidy programs (e.g., Income Tax Exemption Programs for Export
Oriented Industries and Discount Loans for Export Oriented Industries),
and import substitution subsidy programs (e.g., Income Tax Credit on
Purchases of Domestically Produced Equipment and Refund for FIEs
Purchasing Domestically Produced Equipment). See Preliminary
Determination, 75 FR at 10469.
To determine whether there are ``massive imports'' over a
``relatively short period,'' for all other producers/exporters, we have
relied on U.S. import statistics. In their Allegation of Critical
Circumstances, Petitioners have provided ITC monthly import statistics
for the merchandise under investigation for the period June 2009
through January 2010. Consistent with Glycine from Japan, we are using
the ITC monthly import statistics to determine whether there are
``massive imports'' with respect to all other producers/exporters.
Based on our analyses of these import data, we preliminarily find that
imports of subject merchandise from the PRC did increase by more than
fifteen percent during the ``relatively short period'' (i.e., between
June 2009 through September 2009, and October 2009 through January
2010). Therefore, we preliminarily determine that the requirements of
section 703(e)(1)(B) of the Act have been satisfied, and that critical
circumstances exist for all other PRC producers/exporters of subject
merchandise.
Conclusion
Given the analysis above, we preliminarily determine that critical
circumstances exist for imports of certain potassium phosphate salts
from the PRC, pursuant to section 703(e)(1) of the Act. We will make
our final determination concerning critical circumstances for imports
of certain potassium salts from the PRC when we make our final
countervailing duty determination, currently scheduled for no later
than May 24, 2010.
Suspension of Liquidation
In accordance with section 703(e)(2)(A) of the Act, we are
directing CBP to suspend liquidation of any unliquidated entries of
subject merchandise from the PRC entered, or withdrawn from warehouse
for consumption, on or after December 8, 2009, which is 90 days prior
to the date of publication of the Preliminary Determination in the
Federal Register.
International Trade Commission Notification
In accordance with section 703(f) of the Act, we will notify the
ITC of this preliminary determination.
Public Comment
Because this preliminary determination is being made subsequent to
the deadline for public comment as set forth in the Preliminary
Determination, we will accept written comments limited to this
preliminary determination of critical circumstances if they are
submitted to the Assistant Secretary for Import Administration no later
than five days after the publication of this notice in accordance with
the filing requirements set forth in 19 CFR 351.303.
This preliminary determination is issued and published pursuant to
sections 703(f) and 777(i) of the Act.
Dated: April 29, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-10302 Filed 5-4-10; 8:45 am]
BILLING CODE 3510-DS-P