Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 24575 

8See, 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. 

9See, e.g., Carbon Steel Pipe and SDGE. 

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. 

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 

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] 

BILLING CODE 3510–DS–P 

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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1Specifically, 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. 

(‘‘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

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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Federal Register / Vol. 75, No. 86 / Wednesday, May 5, 2010 / Notices 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 


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