[Federal Register Volume 85, Number 78 (Wednesday, April 22, 2020)]
[Notices]
[Pages 22407-22410]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-08538]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-127]
Certain Non-Refillable Steel Cylinders From the People's Republic
of China: Initiation of Countervailing Duty Investigation
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
DATES: Applicable April 16, 2020.
FOR FURTHER INFORMATION CONTACT: Stephanie Moore, AD/CVD Operations,
Office III, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-3692.
SUPPLEMENTARY INFORMATION:
The Petition
On March 27, 2020, the U.S. Department of Commerce (Commerce)
received a countervailing duty (CVD) petition concerning imports of
certain non-refillable steel cylinders (non-refillable cylinders) from
the People's Republic of China (China) filed in proper form on behalf
of Worthington Industries (the petitioner).\1\ The Petition was
accompanied by an antidumping duty (AD) petition concerning imports of
non-refillable cylinders from China.
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\1\ See Petitioner's Letter, ``Certain Non-Refillable Steel
Cylinders from the People's Republic of China--Petition for the
Imposition of Antidumping and Countervailing Duties,'' dated March
27, 2020 (the Petition).
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On March 31, 2020, Commerce requested supplemental information
pertaining to certain aspects of the Petition,\2\ to which the
petitioner filed responses on April 3, 2020.\3\ On April 7, 2020,
Commerce held a phone call with the petitioner concerning the scope of
the investigations.\4\
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\2\ See Commerce's Letters, ``Petitions for the Imposition of
Antidumping and Countervailing Duties on Imports of Non-Refillable
Steel Cylinders from the People's Republic of China: Supplemental
Questions,'' and, ``Petition for the Imposition of Countervailing
Duties on Imports of Certain Non-Refillable Steel Cylinders from the
People's Republic of China: Supplemental Questions Concerning Volume
III,'' both dated March 31, 2020.
\3\ See Petitioner's Letter, ``Certain Non-Refillable Steel
Cylinders from the People's Republic of China--Petitioner's
Amendment to Volume I Relating to General and Injury Information,''
dated April 3, 2020 (General Issues Supplement); see also
Petitioner's Letter, ``Certain Non-Refillable Steel Cylinders from
the People's Republic of China--Petitioner's Amendment to Volume III
Relating to the People's Republic of China Countervailing Duties,''
dated April 3, 2020.
\4\ See Memorandum, ``Certain Non-Refillable Steel Cylinders
from the People's Republic of China--Petitions for the Imposition of
Antidumping and Countervailing Duties: Phone Call Regarding Scope of
the Petitions,'' dated April 10, 2020 (Scope Phone Call Memo).
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In accordance with section 702(b)(1) of the Tariff Act of 1930, as
amended (the Act), the petitioner alleges that the Government of China
(GOC) is providing countervailable subsidies, within the meaning of
sections 701 and 771(5) of the Act, to producers of non-refillable
cylinders in China, and that such imports are materially injuring, or
threatening material injury to, the domestic industry producing non-
refillable cylinders in the United States. Consistent with section
702(b)(1) of the Act and 19 CFR 351.202(b), for those alleged programs
on which we are initiating a CVD investigation, the Petition is
accompanied by information reasonably available to the petitioner
supporting its allegations.
Commerce finds that the petitioner filed the Petition on behalf of
the domestic industry because the petitioner is an interested party as
defined in section 771(9)(C) of the Act. Commerce also finds that the
petitioner demonstrated sufficient industry support with respect to the
initiation of the requested CVD investigation.\5\
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\5\ See Countervailing Duty Investigation Initiation Checklist:
Certain Non-Refillable Steel Cylinders (CVD Initiation Checklist),
dated concurrently with this notice and on file electronically via
ACCESS.
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Period of Investigation
Because the Petition was filed on March 27, 2020, the period of
investigation (POI) is January 1, 2019 through December 31, 2019.\6\
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\6\ See 19 CFR 351.204(b)(2).
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Scope of the Investigation
The merchandise covered by this investigation is non-refillable
cylinders from China. For a full description of the scope of this
investigation, see the appendix to this notice.
Comments on Scope of the Investigation
During our review of the Petition, Commerce issued questions to,
and received responses from, the petitioner pertaining to the proposed
scope to ensure that the scope language in the Petition would be an
accurate reflection of the products for which the domestic industry is
seeking relief.\7\ Specifically, the petitioner's proposed scope
included both unfilled/empty and filled cylinders. Filled cylinders are
properly classified under the Harmonized Tariff Schedule of the United
States (HTSUS) subheading for the contents of the cylinder, not the
HTSUS subheading for the cylinder itself. This could create challenges
related to administrability because: (1) There are many substances
these cylinders can contain; (2) the cylinders could be filled in a
third country before being exported to the United States, thereby
complicating the identification of the country of origin for these
cylinders; and (3) it could be difficult, without time-consuming
physical examination, to determine whether filled cylinders are subject
to duties. In addition, there are legal issues surrounding the
inclusion of imports of filled cylinders given that such cylinders are
non-refillable. For these reasons, Commerce is removing the following
substantive provisions which were in the scope the petitioner provided:
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\7\ See Supplemental General Issues Questionnaire and General
Issues Supplement; see also Scope Phone Call Memo.
. . . may be filled or . . .
Also excluded from the scope of this investigation are non-
refillable steel cylinders filled at the time of importation whose
content is subject to another antidumping and/or countervailing duty
order. At the time of filing this petition, there are existing
antidumping duty orders on Hydrofluorocarbon Blends from the
People's Republic of China and 1,1,1,2-Tetrafluoroethane (R-134A)
from the People's Republic of China. See Hydrofluorocarbon Blends
from the People's Republic of China: Antidumping Duty Order, 81 FR
55436 (August 19, 2016); 1,1,1,2 Tetrafluoroethane (R-134a) from the
People's Republic of China: Antidumping Duty Order, 82 FR 18422
(April 19, 2017). In the case of non-refillable steel cylinders
entering the United States filled with merchandise covered by the
scope of these investigations or future antidumping and/or
countervailing duty orders covering the gas or material content of
the non-refillable steel cylinders,
[[Page 22408]]
such other orders control. In the case of non-refillable steel
cylinders entering the United States filled with merchandise not
covered by the scope of any other antidumping and/or countervailing
duty order, the scope of this investigation controls.
Commerce has not adopted these provisions for purposes of
initiation. We are interested, however, in further comment on this
issue from parties to this proceeding.\8\ Consequently, Commerce is
initiating this investigation with respect to unfilled non-refillable
cylinders only, subject to further clarification, as warranted.
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\8\ Commerce is responsible for clarifying, where necessary, the
scope of an order. See Diversified Products Corp. v. United States,
572 F. Supp. 883, 887 (CIT 1983).
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As discussed in the Preamble to Commerce's regulations, we are
setting aside a period for interested parties to raise issues regarding
product coverage (i.e., scope).\9\ Commerce will consider all comments
received from interested parties and, if necessary, will consult with
interested parties prior to the issuance of the preliminary
determination. If scope comments include factual information,\10\ all
such factual information should be limited to public information. To
facilitate preparation of its questionnaires, Commerce requests that
all interested parties submit scope comments by 5:00 p.m. Eastern Time
(ET) on May 6, 2020, which is 20 calendar days from the signature date
of this notice. Any rebuttal comments, which may include factual
information, must be filed by 5:00 p.m. ET on May 18, 2020, which is 10
calendar days from the initial comment deadline.\11\
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\9\ See Antidumping Duties; Countervailing Duties, 62 FR 27296,
27323 (May 19, 1997) (Preamble).
\10\ See 19 CFR 351.102(b)(21) (defining ``factual
information'').
\11\ See 19 CFR 351.303(b).
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Commerce requests that any factual information the parties consider
relevant to the scope of the investigation be submitted during this
time period. However, if a party subsequently finds that additional
factual information pertaining to the scope of the investigation may be
relevant, the party may contact Commerce and request permission to
submit the additional information. All such comments must also be filed
on the record of the concurrent AD investigation.
Filing Requirements
All submissions to Commerce must be filed electronically using
Enforcement and Compliance's (E&C's) Antidumping Duty and
Countervailing Duty Centralized Electronic Service System (ACCESS),
unless an exception applies.\12\ An electronically filed document must
be received successfully in its entirety by the time and date it is
due.
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\12\ See Antidumping and Countervailing Duty Proceedings:
Electronic Filing Procedures; Administrative Protective Order
Procedures, 76 FR 39263 (July 6, 2011); see also Enforcement and
Compliance; Change of Electronic Filing System Name, 79 FR 69046
(November 20, 2014), for details of Commerce's electronic filing
requirements, effective August 5, 2011. Information on using ACCESS
can be found at https://access.trade.gov/help.aspx and a handbook
can be found at https://access.trade.gov/help/Handbook_on_Electronic_Filing_Procedures.pdf.
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Consultations
Pursuant to sections 702(b)(4)(A)(i) and (ii) of the Act, Commerce
notified the GOC of the receipt of the Petition and provided it the
opportunity for consultations with respect to the CVD Petition.\13\ The
GOC did not request consultations.
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\13\ See Commerce's Letter, ``Certain Non-Refillable Steel
Cylinders the People's Republic of China: Invitation for
Consultation to Discuss the Countervailing Duty Petition,'' dated
April 2, 2020.
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Determination of Industry Support for the Petition
Section 702(b)(1) of the Act requires that a petition be filed on
behalf of the domestic industry. Section 702(c)(4)(A) of the Act
provides that a petition meets this requirement if the domestic
producers or workers who support the petition account for: (i) At least
25 percent of the total production of the domestic like product; and
(ii) more than 50 percent of the production of the domestic like
product produced by that portion of the industry expressing support
for, or opposition to, the petition. Moreover, section 702(c)(4)(D) of
the Act provides that, if the petition does not establish support of
domestic producers or workers accounting for more than 50 percent of
the total production of the domestic like product, Commerce shall: (i)
Poll the industry or rely on other information in order to determine if
there is support for the petition, as required by subparagraph (A); or
(ii) determine industry support using a statistically valid sampling
method to poll the ``industry.''
Section 771(4)(A) of the Act defines the ``industry'' as the
producers as a whole of a domestic like product. Thus, to determine
whether a petition has the requisite industry support, the statute
directs Commerce to look to producers and workers who produce the
domestic like product. The International Trade Commission (ITC), which
is responsible for determining whether ``the domestic industry'' has
been injured, must also determine what constitutes a domestic like
product in order to define the industry. While both Commerce and the
ITC must apply the same statutory definition regarding the domestic
like product,\14\ they do so for different purposes and pursuant to a
separate and distinct authority. In addition, Commerce's determination
is subject to limitations of time and information. Although this may
result in different definitions of the like product, such differences
do not render the decision of either agency contrary to law.\15\
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\14\ See section 771(10) of the Act.
\15\ See USEC, Inc. v. United States, 132 F. Supp. 2d 1, 8 (CIT
2001) (citing Algoma Steel Corp., Ltd. v. United States, 688 F.
Supp. 639, 644 (CIT 1988), aff'd 865 F. 2d 240 (Fed. Cir. 1989)).
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Section 771(10) of the Act defines the domestic like product as ``a
product which is like, or in the absence of like, most similar in
characteristics and uses with, the article subject to an investigation
under this title.'' Thus, the reference point from which the domestic
like product analysis begins is ``the article subject to an
investigation'' (i.e., the class or kind of merchandise to be
investigated, which normally will be the scope as defined in the
petition).
With regard to the domestic like product, the petitioner does not
offer a definition of the domestic like product distinct from the scope
of the investigation.\16\ Based on our analysis of the information
submitted on the record, we have determined that non-refillable
cylinders, as defined in the scope, constitute a single domestic like
product, and we have analyzed industry support in terms of that
domestic like product.\17\
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\16\ See Volume I of the Petition at 12-15; see also General
Issues Supplement at 8.
\17\ For a discussion of the domestic like product analysis as
applied to this case and information regarding industry support, see
CVD Initiation Checklist at Attachment II, Analysis of Industry
Support for the Antidumping and Countervailing Duty Petitions
Covering Certain Non-Refillable Steel Cylinders from the People's
Republic of China (Attachment II).
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In determining whether the petitioner has standing under section
702(c)(4)(A) of the Act, we considered the industry support data
contained in the Petition with reference to the domestic like product
as defined in the ``Scope of the Investigation,'' in the appendix to
this notice. To establish industry support, the petitioner provided its
own production of the domestic like product in 2019.\18\ The petitioner
states that there are no other known producers of non-refillable
cylinders in the United States; therefore, the Petition is supported by
100 percent of the U.S. industry.\19\ We relied on data provided
[[Page 22409]]
by the petitioner for purposes of measuring industry support.\20\
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\18\ See Volume I of the Petition at 2-3 and Exhibit GEN-2.
\19\ Id.
\20\ Id.
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Our review of the data provided in the Petition, the General Issues
Supplement, and other information readily available to Commerce
indicates that the petitioner has established industry support for the
Petition.\21\ First, the Petition established support from domestic
producers (or workers) accounting for more than 50 percent of the total
production of the domestic like product and, as such, Commerce is not
required to take further action in order to evaluate industry support
(e.g., polling).\22\ Second, the domestic producers (or workers) have
met the statutory criteria for industry support under section
702(c)(4)(A)(i) of the Act because the domestic producers (or workers)
who support the Petition account for at least 25 percent of the total
production of the domestic like product.\23\ Finally, the domestic
producers (or workers) have met the statutory criteria for industry
support under section 702(c)(4)(A)(ii) of the Act because the domestic
producers (or workers) who support the Petition account for more than
50 percent of the production of the domestic like product produced by
that portion of the industry expressing support for, or opposition to,
the Petition.\24\ Accordingly, Commerce determines that the Petition
was filed on behalf of the domestic industry within the meaning of
section 702(b)(1) of the Act.\25\
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\21\ See CVD Initiation Checklist at Attachment II.
\22\ See section 702(c)(4)(D) of the Act; see also CVD
Initiation Checklist at Attachment II.
\23\ See CVD Initiation Checklist at Attachment II.
\24\ Id.
\25\ Id.
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Injury Test
Because China is a ``Subsidies Agreement Country'' within the
meaning of section 701(b) of the Act, section 701(a)(2) of the Act
applies to this investigation. Accordingly, the ITC must determine
whether imports of the subject merchandise from China materially
injure, or threaten material injury to, a U.S. industry.
Allegations and Evidence of Material Injury and Causation
The petitioner alleges that the U.S. industry producing the
domestic like product is being materially injured, or is threatened
with material injury, by reason of the imports of the subject
merchandise that are benefitting from countervailable subsidies. In
addition, the petitioner alleges that subject imports exceed the
negligibility threshold provided for under section 771(24)(A) of the
Act.\26\
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\26\ See Volume I of the Petition at 16-17.
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The petitioner contends that the industry's injured condition is
illustrated by a significant and increasing volume of subject imports;
reduced market share; underselling and price depression or suppression;
lost sales and revenues; decreased U.S. production and capacity
utilization rates; and a decline in the domestic industry's financial
performance and profitability.\27\ We have assessed the allegations and
supporting evidence regarding material injury, threat of material
injury, causation, as well as cumulation, and we have determined that
these allegations are properly supported by adequate evidence, and meet
the statutory requirements for initiation.\28\
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\27\ See Volume I of the Petition at 17-26 and Exhibits GEN-8,
and GEN-10 through GEN-13; see also General Issues Supplement at
Exhibits GEN-SUPP-3 and GEN-SUPP-5.
\28\ See CVD Initiation Checklist at Attachment III.
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Initiation of CVD Investigation
Based upon our examination of the Petition on non-refillable
cylinders from China and supplemental responses, we find that the
Petition meets the requirements of section 702 of the Act. Therefore,
we are initiating a CVD investigation to determine whether imports of
non-refillable cylinders from China benefit from countervailable
subsidies conferred by the GOC. Based on our review of the Petition, we
find that there is sufficient information to initiate a CVD
investigation on all the alleged programs. For a full discussion of the
basis for our decision to initiate on each program, see CVD Initiation
Checklist. A public version of the initiation checklist for this
investigation is available on ACCESS. In accordance with section
703(b)(1) of the Act and 19 CFR 351.205(b)(1), unless postponed, we
will make our preliminary determination no later than 65 days after the
date of this initiation.
Respondent Selection
The petitioner named 15 companies in China as producers/exporters
of non-refillable cylinders.\29\ Commerce intends to follow its
standard practice in CVD investigations and calculate company-specific
subsidy rates in this investigation. In the event Commerce determines
that the number of companies is large and it cannot individually
examine each company based upon Commerce's resources, where
appropriate, Commerce intends to select mandatory respondents based on
quantity and value (Q&V) questionnaires issued to the potential
respondents. Commerce normally selects mandatory respondents in CVD
investigations using U.S. Customs and Border Protection (CBP) entry
data for U.S. imports under the appropriate Harmonized Tariff Schedule
of the United States (HTSUS) numbers listed in the scope of the
investigation. However, for this investigation, the HTSUS numbers under
which the subject merchandise would enter (i.e., 7311.00.0060 and
7311.00.0090, 7310.29.0025 and 7310.29.0050) are basket categories
under which non-subject merchandise may enter. Therefore, we cannot
rely on CBP entry data in selecting respondents. We intend instead to
issue Q&V questionnaires to each potential respondent for which the
petitioner has provided a complete address.
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\29\ See Volume I of the Petition at Exhibit GEN-7.
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Producers/exporters of non-refillable cylinders from China that do
not receive Q&V questionnaires by mail may still submit a response to
the Q&V questionnaire and can obtain the Q&V questionnaire from E&C's
website at http://trade.gov/enforcement/news.asp. Responses to the Q&V
questionnaire must be submitted by the relevant Chinese producers/
exporters no later than 5:00 p.m. ET on May 4, 2020. All Q&V responses
must be filed electronically via ACCESS. An electronically filed
document must be received successfully, in its entirety, by ACCESS no
later than 5:00 p.m. ET on the deadline noted above. Commerce intends
to finalize its decisions regarding respondent selection within 20 days
of publication of this notice.
Distribution of Copies of the Petition
In accordance with section 702(b)(4)(A) of the Act and 19 CFR
351.202(f), a copy of the public version of the Petition has been
provided to the GOC via ACCESS.
Furthermore, to the extent practicable, Commerce will attempt to
provide a copy of the public version of the Petition to each exporter
named in the Petition, as provided under 19 CFR 351.203(c)(2).
ITC Notification
Commerce will notify the ITC of its initiation, as required by
section 702(d) of the Act.
Preliminary Determination by the ITC
The ITC will preliminarily determine, within 45 days after the date
on which the Petition was filed, whether there is a reasonable
indication that imports of non-refillable cylinders from China are
[[Page 22410]]
materially injuring, or threatening material injury to, a U.S.
industry.\30\ A negative ITC determination will result in the
investigation being terminated.\31\ Otherwise, this investigation will
proceed according to statutory and regulatory time limits.
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\30\ See section 703(a)(1) of the Act.
\31\ Id.
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Submission of Factual Information
Factual information is defined in 19 CFR 351.102(b)(21) as: (i)
Evidence submitted in response to questionnaires; (ii) evidence
submitted in support of allegations; (iii) information to measure the
adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence
placed on the record by Commerce; and (v) evidence other than factual
information described in (i)-(iv). Any party, when submitting factual
information, must specify under which subsection of 19 CFR
351.102(b)(21) the information is being submitted \32\ and, if the
information is submitted to rebut, clarify, or correct factual
information already on the record, to provide an explanation
identifying the information already on the record that the factual
information seeks to rebut, clarify, or correct.\33\ Time limits for
the submission of factual information are addressed in 19 CFR 351.301,
which provides specific time limits based on the type of factual
information being submitted. Please review the regulations prior to
submitting factual information in this investigation.
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\32\ See 19 CFR 351.301(b).
\33\ See 19 CFR 351.301(b)(2).
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Extensions of Time Limits
Parties may request an extension of time limits before the
expiration of a time limit established under 19 CFR 351.301, or as
otherwise specified by Commerce. In general, an extension request will
be considered untimely if it is filed after the expiration of the time
limit established under 19 CFR 351.301.\34\ For submissions that are
due from multiple parties simultaneously, an extension request will be
considered untimely if it is filed after 10:00 a.m. ET on the due date.
Under certain circumstances, Commerce may elect to specify a different
time limit by which extension requests will be considered untimely for
submissions which are due from multiple parties simultaneously. In such
a case, Commerce will inform parties in a letter or memorandum of the
deadline (including a specified time) by which extension requests must
be filed to be considered timely. An extension request must be made in
a separate, standalone submission; under limited circumstances Commerce
will grant untimely filed requests for the extension of time limits.
Parties should review Extension of Time Limits; Final Rule, 78 FR 57790
(September 20, 2013), available at http://www.gpo.gov/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to submitting extension requests
or factual information in this investigation.
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\34\ See 19 CFR 351.302.
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Certification Requirements
Any party submitting factual information in an AD or CVD proceeding
must certify to the accuracy and completeness of that information.\35\
Parties must use the certification formats provided in 19 CFR
351.303(g).\36\ Commerce intends to reject factual submissions if the
submitting party does not comply with the applicable certification
requirements.
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\35\ See section 782(b) of the Act.
\36\ See Certification of Factual Information to Import
Administration During Antidumping and Countervailing Duty
Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule); see also
frequently asked questions regarding the Final Rule, available at
http://enforcement.trade.gov/tlei/notices/factual_info_final_rule_FAQ_07172013.pdf.
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Notification to Interested Parties
Interested parties must submit applications for disclosure under
administrative protective order (APO) in accordance with 19 CFR
351.305. Instructions for filing such applications may be found on
E&C's website at http://enforcement.trade.gov/apo.
On January 22, 2008, Commerce published Antidumping and
Countervailing Duty Proceedings: Documents Submission Procedures; APO
Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to
participate in this investigation should ensure that they meet the
requirements of these procedures (e.g., the filing of letters of
appearance as discussed at 19 CFR 351.103(d)). Note that Commerce has
temporarily modified certain of its requirements for serving documents
containing business proprietary information, until May 19, 2020, unless
extended.\37\
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\37\ See Temporary Rule Modifying AD/CVD Service Requirements
Due to COVID-19, 85 FR 17006 (March 26, 2020).
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This notice is issued and published pursuant to sections 702 and
777(i) of the Act, and 19 CFR 351.203(c).
Dated: April 16, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
Appendix
Scope of the Investigation
The merchandise covered by this investigation is certain seamed
(welded or brazed), non-refillable steel cylinders meeting the
requirements of, or produced to meet the requirements of, U.S.
Department of Transportation (USDOT) Specification 39,
TransportCanada Specification 39M, or United Nations pressure
receptacle standard ISO 11118 and otherwise meeting the description
provided below (non-refillable steel cylinders). The subject non-
refillable steel cylinders are portable and range from 300-cubic
inch (4.9 liter) water capacity to 1,526-cubic inch (25 liter) water
capacity. Subject non-refillable steel cylinders may be imported
with or without a valve and/or pressure release device and unfilled
at the time of importation.
Specifically excluded are seamless non-refillable steel
cylinders.
The merchandise subject to this investigation is properly
classified under statistical reporting numbers 7311.00.0060 and
7311.00.0090 of the Harmonized Tariff Schedule of the United States
(HTSUS). The merchandise may also enter under HTSUS statistical
reporting numbers 7310.29.0025 and 7310.29.0050. Although the HTSUS
statistical reporting numbers are provided for convenience and
customs purposes, the written description of the merchandise is
dispositive.
[FR Doc. 2020-08538 Filed 4-21-20; 8:45 am]
BILLING CODE 3510-DS-P