[Federal Register Volume 75, Number 104 (Tuesday, June 1, 2010)]
[Notices]
[Pages 30375-30377]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-13070]
[[Page 30375]]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-963]
Certain Potassium Phosphate Salts From the People's Republic of
China: Final Affirmative Countervailing Duty Determination and
Termination of Critical Circumstances Inquiry
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
DATES: Effective Date: June 1, 2010.
SUMMARY: On March 8, 2010, the Department of Commerce (Department)
published its preliminary affirmative determination in the
countervailing duty investigation of certain potassium phosphate salts
from the People's Republic of China (PRC).\1\ The period of
investigation (POI) is January 1, 2008 through December 31, 2008. We
invited interested parties to comment on our Preliminary Determination,
and received comments from the domestic industry. We have made no
changes for the final determination. We determine that countervailable
subsidies are being provided to producers and exporters of certain
potassium phosphate salts from the PRC. For information on the
estimated countervailing duty rates, please see the ``Suspension of
Liquidation'' section, below.
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\1\ 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).
FOR FURTHER INFORMATION CONTACT: Mark Hoadley, AD/CVD Operations,
Office 6, Import Administration, International Trade Administration,
U.S. Department of Commerce, 14th Street, and Constitution Avenue, NW.,
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Washington, DC 20230; telephone: (202) 482-3148.
SUPPLEMENTARY INFORMATION:
Case History
The following events have occurred since the announcement of the
Preliminary Determination, which was published in the Federal Register
on March 8, 2010. ICL Performance Products LP and Prayon, Inc.
(Petitioners) filed a critical circumstances allegation on April 6,
2010. Subsequently, on April 29, 2010, the Department issued a
preliminary affirmative critical circumstances determination. See
Certain Potassium Phosphate Salts from the People's Republic of China:
Preliminary Affirmative Determination of Critical Circumstances in the
Countervailing Duty Investigation, 75 FR 24575, 24577 (May 5, 2010).
On April 27, 2010, we received a case brief from Petitioners. We
received no other case briefs and no rebuttal briefs. Petitioners'
brief simply notes its agreement with the Department's preliminary
countervailing duty determination, and reiterates its arguments in
favor of an affirmative critical circumstances determination.\2\
Petitioners put forth no arguments for revisions to our adverse facts
available (AFA) methodology or to any other aspect of our
determinations. On May 18, 2010, Petitioners withdrew their critical
circumstances allegation.
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\2\ Because the critical circumstances allegation was not filed
until April 6, 2010, we were not able to issue our determination
before the due date for case briefs. We did not receive any requests
to extend the due date.
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Injury Test
Because the PRC is a ``Subsidies Agreement Country'' within the
meaning of section 701(b) of the Tariff Act of 1930, as amended (the
Act), the U.S. International Trade Commission (ITC) is required to
determine pursuant to section 701(a)(2) of the Act whether imports of
the subject merchandise from the PRC materially injure, or threaten
material injury to, a United States industry. On November 23, 2009, the
ITC published its preliminary determination that there is a reasonable
indication that an industry in the United States producing
monopotassium phosphate (MKP) is materially injured or threatened with
material injury, and industries in the United States producing
dipotassium phospate (DKP) and tetrapotassium pyrophosphate (TKPP) are
threatened with material injury by reason of allegedly subsidized
imports from the PRC of subject merchandise. See Investigations Nos.
701-TA-473 and 731-TA-1173 (Preliminary), Certain Sodium and Potassium
Phosphate Salts from China, 74 FR 61173 (November 23, 2009). The ITC
found that there is no reasonable indication that an industry producing
sodium tripolyphosphate (STPP) is materially injured by reason of
imports alleged to be subsidized by the PRC. Id.
Scope of the Investigation
The phosphate salts covered by this investigation include anhydrous
monopotassium phosphate (MKP), anhydrous dipotassium phospate (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.
Period of Investigation
The period for which we are measuring subsidies, i.e., the period
of investigation, is January 1, 2008 through December 31, 2008.
Comments on the Preliminary Determination
As noted above, the Department received a case brief from
Petitioners only, and no rebuttal briefs. Petitioners' brief simply
states their agreement with the Department's preliminary AFA
determination, and reiterates their arguments for finding critical
circumstances, but does not offer any arguments or suggestions for
modifying our determinations or methodologies in any manner. Moreover,
Petitioners' affirmative statements regarding critical circumstances
have become moot now
[[Page 30376]]
that they have withdrawn their allegation (see below). Therefore, given
Petitioners' complete concurrence with the Department's positions, we
have not addressed their comments specifically.
Use of Facts Available and Adverse Facts Available
For purposes of this final determination, we relied on AFA in
accordance with sections 776(a) and (b) of the Act to determine the
total countervailable subsidy rates. The government of the PRC and the
three mandatory company respondents did not respond to the Department's
questionnaire. Because of the failure to provide requested information,
we determine that the use of facts otherwise available is required,
pursuant to section 776(a)(2)(C), and that, because of this lack of
cooperation, the application of an adverse inference is also warranted,
pursuant to section 776(b) of the Act. In determining appropriate AFA
rates for the programs under investigation, we applied the methodology
developed in prior CVD investigations. A full discussion of our
decision to apply AFA, and the methodology we followed, is presented in
the Preliminary Determination in the section ``Application of Facts
Otherwise Available,'' and a detailed explanation of the AFA rates
determined for each program can be found in Memorandum to the File,
``Application of Adverse Facts Available Rates for Preliminary
Determination,'' March 1, 2010. There is no new information or more
recently calculated rates in final CVD determinations involving the PRC
which warrant any revisions to the rates assigned in the Preliminary
Determination.
Critical Circumstances
As noted above, Petitioners withdrew their critical circumstances
allegation on May 18, 2010. Pursuant to this withdrawal, and because
the Department has not ``expended significant resources'' in examining
the allegation,\3\ the Department determines there is no need to make a
critical circumstances determination in this investigation and is
terminating the critical circumstances inquiry. We will, therefore,
instruct U.S. Customs and Border Protection (CBP) to terminate the
suspension of liquidation, refund any cash deposits, and release any
bond or other security previously posted, for entries from December 8,
2009 until March 8, 2010, the publication date of the Preliminary
Determination, effectively rescinding our instructions to CBP pursuant
to the preliminary affirmative critical circumstances determination.
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\3\ See e.g., Notice of Final Determination of Sales at Less
Than Fair Value and Termination of Critical-Circumstances
Investigation: Electrolytic Manganese Dioxide from Australia, 73 FR
47586, 47586-87 (August 14, 2008), granting a post-preliminary
determination request to withdraw a critical circumstances
allegation.
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Continuation of Suspension of Liquidation
In accordance with section 705(c)(1)(B)(i)(I) of the Act, we have
assigned a subsidy rate to each of the three producers/exporters of the
subject merchandise that were selected as mandatory company respondents
in this CVD investigation. With respect to the all-others rate, section
705(c)(5)(A)(ii) of the Act provides that if the countervailable
subsidy rates established for all exporters and producers individually
investigated are determined entirely in accordance with section 776 of
the Act, the Department may use any reasonable method to establish an
all-others rate for exporters and producers not individually
investigated. In this case, the rate calculated for the three
investigated companies is based entirely on facts available under
section 776 of the Act. There is no other information on the record
upon which to determine an all-others rate. As a result, we have used
the AFA rate assigned to the three mandatory respondents as the all-
others rate. This method is consistent with the Department's past
practice. See, e.g., Final Affirmative Countervailing Duty
Determination: Certain Hot-Rolled Carbon Steel Flat Products From
Argentina, 66 FR 37007, 37008 (July 16, 2001); see also, Final
Affirmative Countervailing Duty Determination: Prestressed Concrete
Steel Wire Strand From India, 68 FR 68356 (December 8, 2003); Sodium
Nitrite from the People's Republic of China: Final Affirmative
Countervailing Duty Determination, 73 FR 38981 (July 8, 2008).
As a result, we have determined the following subsidy rates.
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Producer/Exporter Subsidy rate
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Lianyungang Mupro Import Export Co Ltd. 109.11 percent ad valorem.
Mianyang Aostar Phosphate Chemical 109.11 percent ad valorem.
Industry Co. Ltd.
Shifang Anda Chemicals Co. Ltd......... 109.11 percent ad valorem.
All-Others............................. 109.11 percent ad valorem.
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In accordance with section 703(d)(1)(A)(i) of the Act, we directed
CBP to suspend liquidation of all entries of the subject merchandise
from the PRC, which are entered or withdrawn from warehouse, for
consumption on or after March 8, 2010, the date of publication of the
Preliminary Determination. After the preliminary affirmative critical
circumstances determination, we directed CBP to suspend liquidation of
all entries on or after December 8, 2009 (encompassing the retroactive
90-day period) pursuant to section 703(e)(2) of the Act. As noted
above, however, we will now instruct CBP to remove the suspension of
liquidation for the 90-day pre-preliminary determination period, to
refund any cash deposits and release any bond or other security
previously posted within the 90-day period, but to continue collecting
bonds or cash deposits on all entries, entered or withdrawn from
warehouse, for consumption on or after March 8, 2010.
If the ITC issues a final affirmative injury determination, we will
issue a countervailing duty order under section 706(a) of the Act, and
instruct CBP to require cash deposits of the estimated countervailing
duties. If the ITC determines that material injury to, threat of
material injury to, or material retardation of, the domestic industry
does not exist, this proceeding will be terminated and all estimated
duties deposited or securities posted as a result of the suspension of
liquidation will be refunded or canceled.
ITC Notification
In accordance with section 705(d) of the Act, we will notify the
ITC of our determination. In addition, we are making available to the
ITC all non-privileged and non-proprietary information related to this
investigation. We will allow the ITC access to all privileged and
business proprietary information in our files, provided the ITC
confirms that it will not disclose
[[Page 30377]]
such information, either publicly or under an Administrative Protective
Order (APO), without the written consent of the Assistant Secretary for
Import Administration.
Return or Destruction of Proprietary Information
In the event that the ITC issues a final negative injury
determination, this notice will serve as the only reminder to parties
subject to an APO of their responsibility concerning the destruction of
proprietary information disclosed under APO in accordance with 19 CFR
351.305(a)(3). Timely written notification of the return/destruction of
APO materials or conversion to judicial protective order is hereby
requested. Failure to comply with the regulations and terms of an APO
is a violation which is subject to sanction.
This determination is issued and published pursuant to sections
705(d) and 777(i) of the Act.
Dated: May 24, 2010.
Ronald K. Lorentzen,
Deputy Assistant Secretary for Import Administration.
[FR Doc. 2010-13070 Filed 5-28-10; 8:45 am]
BILLING CODE 3510-DS-P