[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 
K<INF>4</INF>P<INF>2</INF>O<INF>7</INF>. 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% 
P<INF>2</INF>O<INF>5</INF> 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 
KH<INF>2</INF>PO<INF>4</INF>. The CAS registry number for MKP is 7778-
77-0. MKP is typically 22.7% phosphorus, 28.7% potassium and 52% 
P<INF>2</INF>O<INF>5</INF>. 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 K<INF>2</INF>HPO<INF>4</INF>. The CAS registry number for DKP is 
7758-11-4. DKP is typically 17.8% phosphorus, 44.8% potassium and 40% 
P<INF>2</INF>O<INF>5</INF> 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.

------------------------------------------------------------------------
           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

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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