[Federal Register Volume 86, Number 37 (Friday, February 26, 2021)]
[Notices]
[Pages 11725-11727]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-04032]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-834-811]


Silicon Metal From the Republic of Kazakhstan: Final Affirmative 
Countervailing Duty Determination

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

SUMMARY: The Department of Commerce (Commerce) determines that 
countervailable subsidies are being provided to producers and exporters 
of silicon metal from the Republic of Kazakhstan (Kazakhstan).

DATES: Applicable February 26, 2021.

FOR FURTHER INFORMATION CONTACT: Justin Neuman, AD/CVD Operations, 
Office V, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-0486.

SUPPLEMENTARY INFORMATION:

Background

    On December 3, 2020, Commerce published the Preliminary 
Determination of this countervailing duty (CVD) investigation, which 
also aligned the final determination of this CVD investigation with the 
final determinations in the companion antidumping duty investigations 
of silicon metal from Bosnia and Herzegovina and Iceland.\1\ A summary 
of the events that occurred since Commerce published the Preliminary 
Determination, as well as a full discussion of the issues raised by 
parties for this final determination, may be found in the Issues and 
Decision Memorandum.\2\ The Issues and Decision Memorandum is a public 
document and is on file electronically via Enforcement and Compliance's 
Antidumping and Countervailing Duty Centralized Electronic Service 
System (ACCESS). ACCESS is available to registered users at http://access.trade.gov. In addition, a complete version of the Issues and 
Decision Memorandum can be accessed directly at http://enforcement.trade.gov/frn/. The signed and electronic versions of the 
Issues and Decision Memorandum are identical in content.
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    \1\ See Silicon Metal from the Republic of Kazakhstan: 
Preliminary Affirmative Countervailing Duty Determination, and 
Alignment of Final Determination with Final Antidumping Duty 
Determination, 85 FR 78122 (December 3, 2020) (Preliminary 
Determination), and accompanying Preliminary Decision Memorandum.
    \2\ See Memorandum, ``Issues and Decision Memorandum for the 
Final Determination of the Countervailing Duty Investigation of 
Silicon Metal from the Republic of Kazakhstan,'' dated concurrently 
with, and hereby adopted by, this notice (Issues and Decision 
Memorandum).
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Period of Investigation

    The period of investigation is January 1, 2019, through December 
31, 2019.

[[Page 11726]]

Scope of the Investigation

    The product covered by this investigation is silicon metal from 
Kazakhstan. For a full description of the scope of this investigation, 
see the ``Scope of the Investigation'' in Appendix I.

Scope Comments

    As stated in the Preliminary Determination, no interested parties 
commented on the scope of the investigation as it appeared in the 
Initiation Notice.\3\ Accordingly, the scope of the investigation 
remains the same as it appeared in the Initiation Notice. See Appendix 
I of this notice.
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    \3\ See Silicon Metal from the Republic of Kazakhstan: 
Initiation of Countervailing Duty Investigation, 85 FR 45173 (July 
27, 2020) (Initiation Notice); see also Preliminary Determination, 
85 FR at 78122.
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Analysis of Subsidy Programs and Comments Received

    The subsidy programs under investigation and the issues raised in 
the case and rebuttal briefs by parties in this investigation are 
discussed in the Issues and Decision Memorandum. A list of the issues 
raised by parties is attached to this notice at Appendix II.

Methodology

    Commerce conducted this investigation in accordance with section 
701 of the Tariff Act of 1930, as amended (the Act). For each of the 
subsidy programs found countervailable, Commerce determines that there 
is a subsidy, i.e., a financial contribution by an ``authority'' that 
gives rise to a benefit to the recipient, and that the subsidy is 
specific.\4\ For a full description of the methodology underlying our 
final determination, see the Issues and Decision Memorandum.
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    \4\ See sections 771(5)(B) and (D) of the Act regarding 
financial contribution; section 771(5)(E) of the Act regarding 
benefit; and section 771(5A) of the Act regarding specificity.
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    Commerce notes that, in making these findings, it relied on facts 
available and, because it finds that one or more respondents did not 
act to the best of their ability to respond to Commerce's requests for 
information, it drew an adverse inference where appropriate in 
selecting from among the facts otherwise available.\5\ For further 
information, see ``Use of Facts Otherwise Available and Adverse 
Inferences'' in the Issues and Decision Memorandum.
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    \5\ See sections 776(a) and (b) of the Act.
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Verification

    Commerce was unable to conduct on-site verification of the 
information relied upon in making its final determination in this 
investigation. However, we attempted to take additional steps in lieu 
of an on-site verification to verify the information relied upon in 
making this final determination, in accordance with section 782(i) of 
the Act.\6\
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    \6\ See Commerce's Letter, ``Countervailing Duty Investigation 
of Silicon Metal from the Republic of Kazakhstan: Supplemental 
Questionnaire in Lieu of Verification,'' dated December 7, 2020.
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    Pursuant to section 776(a)(2)(D) of the Act, in situations where 
information has been provided but the information cannot be verified in 
accordance with section 782(i) of the Act, Commerce may use ``facts 
otherwise available'' on the record in reaching the applicable 
determination. Accordingly, because Commerce was unable to verify 
certain information, and because that inability to verify information, 
or gather information in lieu of an on-site verification, was a result 
of a respondent failing to act to the best of its ability, in 
accordance with section 776(b) of the Act, we have applied an adverse 
inference in using facts otherwise available. in making our final 
determination.\7\
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    \7\ See Issues and Decision Memorandum at Comments 8 and 11.
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Changes Since the Preliminary Determination

    Based on our review and analysis of the comments received from 
parties and the results of verification, we made certain changes to the 
subsidy rate calculations. For a discussion of these changes, see the 
Issues and Decision Memorandum.

All-Others Rate

    As discussed in the Preliminary Determination, Commerce based the 
selection of the all-others rate on the countervailable subsidy rate 
established for the mandatory respondents in accordance with section 
705(c)(5)(A)(ii) of the Act.\8\ Because we are adjusting the final 
subsidy rate applicable to the mandatory respondents, we are making 
similar changes to the all-others rate as well.\9\
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    \8\ See Preliminary Determination, 85 FR at 78122-23.
    \9\ See Issues and Decision Memorandum at Comment 11.
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Final Determination

    In accordance with section 705(c)(1)(B)(i)(I) of the Act, Commerce 
determines that the following estimated countervailable subsidy rates 
exist:
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    \10\ As discussed in the Preliminary Decision Memorandum, 
Commerce has found the following companies to be cross-owned with 
Tau-Ken Temir LLP and JSC NMC Tau-Ken Samruk: Silicon Metal LLP, 
Metallurgical Combine KazSilicon LLP, National Welfare Fund 
``Samruk-Kazyna'' JSC, ``Ekibastuz GRES-2 station'' JSC, and JSC 
KEGOC.

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                                                           Subsidy rate
                         Company                             (percent)
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Tau-Ken Temir LLP and JSC NMC Tau-Ken Samruk \10\.......          160.00
All Others..............................................          160.00
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Disclosure

    Normally, Commerce discloses to interested parties the calculations 
performed in connection with a final determination within five days of 
the public announcement or, where there is no public announcement, 
within five days of the date of publication of the notice of final 
determination in the Federal Register, in accordance with 19 CFR 
351.224(b). However, because Commerce applied adverse facts available 
(AFA) to the individually-examined company Tau-Ken Temir LLP/JSC NMC 
Tau-Ken Samruk in this investigation, in accordance with section 776 of 
the Act, and the applied AFA rate is based solely on information 
provided by the Government of Kazakhstan, there are no calculations to 
disclose.

Continuation of Suspension of Liquidation

    As a result of our Preliminary Determination and pursuant to 
sections 703(d)(1)(B) and (d)(2) of the Act, Commerce instructed U.S. 
Customs and Border Protection to suspend liquidation of entries of 
subject merchandise from Kazakhstan that were entered, or withdrawn 
from warehouse, for consumption on or after December 3, 2020, the date 
of publication of the Preliminary Determination in the Federal 
Register.
    If the U.S. International Trade Commission (ITC) issues a final 
affirmative injury determination, we will issue a CVD order and require 
a cash deposit of estimated countervailing duties for entries of 
subject merchandise in the amounts indicated above, in accordance with 
section 706(a) of the Act. If the ITC determines that material injury, 
or threat of material injury, 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, Commerce will notify 
the ITC of its final affirmative determination that countervailable 
subsidies are being provided to producers and exporters of

[[Page 11727]]

silicon metal from Kazakhstan. As Commerce's final determination is 
affirmative, in accordance with section 705(b) of the Act, the ITC will 
determine, within 45 days, whether the domestic industry in the United 
States is materially injured or threatened with material injury. In 
addition, we are making available to the ITC all non-privileged and 
nonproprietary 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 such 
information, either publicly or under an administrative protective 
order (APO), without the written consent of the Assistant Secretary for 
Enforcement and Compliance.

Notification Regarding Administrative Protective Orders

    In the event that the ITC issues a final negative injury 
determination, this notice will serve as the only reminder to parties 
subject to the 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.

Notification to Interested Parties

    This determination is issued and published pursuant to sections 
705(d) and 777(i) of the Act, and 19 CFR 351.210(c).

    Dated: February 22, 2021.
James Maeder,
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations.

Appendix I

Scope of the Investigation

    The scope of this investigation covers all forms and sizes of 
silicon metal, including silicon metal powder. Silicon metal 
contains at least 85.00 percent but less than 99.99 percent silicon, 
and less than 4.00 percent iron, by actual weight. Semiconductor 
grade silicon (merchandise containing at least 99.99 percent silicon 
by actual weight and classifiable under Harmonized Tariff Schedule 
of the United States (HTSUS) subheading 2804.61.0000) is excluded 
from the scope of this investigation.
    Silicon metal is currently classifiable under subheadings 
2804.69.1000 and 2804.69.5000 of the HTSUS. While the HTSUS numbers 
are provided for convenience and customs purposes, the written 
description of the scope remains dispositive.

Appendix II

List of Topics Discussed in the Issues and Decision Memorandum

I. Summary
II. Background
III. Period of Investigation
IV. Use of Facts Otherwise Available and Adverse Inferences
V. Subsidies Valuation
VI. Analysis of Programs
VII. Analysis of Comments
    Comment 1: Whether the Company Respondents' Initial 
Questionnaire Response Should be Accepted
    Comment 2: Whether the Administrative Procedures Act (APA) 
Supports Accepting the Company Respondents' Questionnaire Response
    Comment 3: Whether Commerce Should Apply Facts Available (FA) 
Rather Than Adverse Facts Available (AFA) in Establishing the 
Countervailing Duty (CVD) Rate
    Comment 4: Whether the Petitioners' Allegations of a Conflict-
of-Interest Warrant the Application of FA Rather Than AFA
    Comment 5: Whether Petitioners' Allegations of a Conflict-of-
Interest Create an Actionable Violation of Antitrust Laws
    Comment 6: Whether the Petitioners' Alleged Violation of a 
Confidentiality Agreement Warrants the Application of FA Rather Than 
AFA
    Comment 7: Whether the AFA Rate Applied in the Preliminary 
Determination Is Warranted
    Comment 8: Whether Commerce Should Rely on Information Provided 
by the Government of Kazakhstan in Determining the 
Countervailability of Programs
    Comment 9: Whether Commerce Is Required To Exhaust 
Administrative Remedies
    Comment 10: Whether Commerce Imposed Provisional Measures 
Without Adequate Consideration
    Comment 11: Whether Commerce Should Find That Two Additional 
Programs Are Countervailable
VIII. Recommendation

[FR Doc. 2021-04032 Filed 2-25-21; 8:45 am]
BILLING CODE 3510-DS-P