[Federal Register Volume 78, Number 236 (Monday, December 9, 2013)]
[Notices]
[Pages 73839-73842]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2013-29341]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-999]
1,1,1,2 Tetrafluoroethane From the People's Republic of China:
Initiation of Countervailing Duty Investigation
AGENCY: Enforcement & Compliance, formerly Import Administration,
International Trade Administration, Department of Commerce
DATES: Effective Date: December 9, 2013.
FOR FURTHER INFORMATION CONTACT: Katie Marksberry, Office V, AD/CVD
Operations, Enforcement & Compliance, International Trade
Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230; telephone: 202.482.7906.
SUPPLEMENTARY INFORMATION:
The Petition
On October 22, 2013, the Department of Commerce (the
``Department'') received a countervailing duty (``CVD'') petition
concerning imports of 1,1,1,2 Tetrafluoroethane (``tetrafluoroethane'')
from the People's Republic of China (``PRC''), filed in proper form by
Mexichem Fluor, Inc. (``Petitioner''), domestic producers of
tetrafluoroethane. The CVD petition was accompanied by an antidumping
duty (``AD'') petition concerning imports of tetrafluoroethane from the
PRC.\1\ On October 25 and November 6, 2013, the Department requested
additional information and clarification of certain areas of the
Petition, and on October 29 and November 8, 2013, respectively,
Petitioner filed a response to each request.\2\ Additionally, on
November 7, 2013, Petitioner filed a response to the Department's
November 6, 2013, request for additional information and clarification
of the scope of the Petition.\3\
---------------------------------------------------------------------------
\1\ See ``Petition for the Imposition of Antidumping and
Countervailing Duties on 1,1,1,2 Tetrafluoroethane from the People's
Republic of China, dated October 22, 2013 (hereafter referred to as
the ``Petition'').
\2\ See Petitioner's October 29, 2013, filing titled, ``1,1,1,2-
Tetrafluoroethane from the People's Republic of China: Response to
CVD Issues Deficiency Questionnaire,''; see also Petitioner's
October 29, 2013, filing titled, ``1,1,1,2-Tetrafluoroethane from
the People's Republic of China: Response to General Issues
Supplemental Questionnaire'' (``General Issues Supplement''), and
Petitioner's November 8, 2013, filing, titled ``1,1,1,2-
Tetrafluoroethane from the People's Republic of China: Response to
Second Antidumping Supplemental Questionnaire''.
\3\ See Petitioner's November 7, 2013, filing titled, ``1,1,1,2-
Tetrafluoroethane from the People's Republic of China: Response to
Scope Questionnaire,''.
---------------------------------------------------------------------------
In accordance with section 702(b)(1) of the Tariff Act of 1930, as
amended (the ``Act''), Petitioners allege that producers/exporters of
tetrafluoroethane in the PRC received countervailable subsidies within
the meaning of sections 701 and 771(5) of the Act, and that imports
from these producers/exporters materially injure, or threaten material
injury to, an industry in the United States.
The Department finds that Petitioners filed this Petition on behalf
of the domestic industry because it is an interested party as defined
in section 771(9)(C) of the Act, and Petitioners have demonstrated
sufficient industry support with respect to the CVD investigation that
it is requesting the Department to initiate (see ``Determination of
Industry Support for the Petition'' below).
Period of Investigation
The period of investigation (``POI'') is January 1, 2012 through
December 31, 2012, in accordance with 19 CFR 351.204(b)(2).
Scope of the Investigation
The product covered by this investigation is tetrafluoroethane from
the PRC. For a full description of the scope of the investigation,
please see the ``Scope of Investigation'' in the appendix to this
notice.
Comments on the Scope of the Investigation
During our review of the Petition, we solicited information from
Petitioners to ensure that the proposed scope language is an accurate
reflection of the products for which the domestic industry is seeking
relief. Moreover, as discussed in the preamble to the Department's
regulations \4\, we are setting aside a period for interested parties
to raise issues regarding product coverage. The Department encourages
all interested parties to submit such comments by December 22, 2013,
which is 20 calendar days from the signature date of this notice. All
comments must be filed on the record of the CVD investigation, as well
as the concurrent AD investigation.
---------------------------------------------------------------------------
\4\ See Antidumping Duties; Countervailing Duties; Final Rule,
62 FR 27296, 27323 (May 19, 1997).
---------------------------------------------------------------------------
Filing Requirements
All submissions to the Department must be filed electronically
using Enforcement & Compliance's Antidumping and Countervailing Duty
Centralized Electronic Service System (``IA ACCESS''). An
electronically filed document must be received successfully in its
entirety by the Department's electronic records system, IA ACCESS, by 5
p.m. on the due date. Documents excepted from the electronic submission
requirements must be filed manually (i.e., in paper form) with the
Enforcement & Compliance's APO/Dockets Unit, Room 1870, U.S. Department
of Commerce, 14th Street and Constitution Avenue NW., Washington, DC
20230, and stamped with the date and time of receipt by the deadline
established by the Department.\5\
---------------------------------------------------------------------------
\5\ 19 CFR 351.303(b)(1). Information on help using IA ACCESS
can be found at https://iaaccess.trade.gov/help.aspx and a handbook
can be found at https://iaaccess.trade.gov/help/Handbook%20on%20Electronic%20Filing%20Procedures.pdf.
---------------------------------------------------------------------------
[[Page 73840]]
Consultations
Pursuant to section 702(b)(4)(A)(ii) of the Act, on October 22,
2013, we invited the Government of the PRC (``GOC'') for consultations
regarding the CVD petition. On November 28, 2013, the GOC filed written
comments with the Department with regard to the CVD petition.\6\
---------------------------------------------------------------------------
\6\ See Memorandum to The File, from Katie Marksberry, Case
Analyst, Re: Countervailing Duty Petition on 1,1,1,2
Tetrafluoroethane from the People's Republic of China: Comments from
the Government of the People's Republic of China Regarding the
Petition, dated December 2, 2013.
---------------------------------------------------------------------------
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, the Department
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 the Department to look to producers and workers who produce the
domestic like product. The U.S. 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 the
Department and the ITC must apply the same statutory definition
regarding the domestic like product,\7\ they do so for different
purposes and pursuant to a separate and distinct authority. In
addition, the Department'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.\8\
---------------------------------------------------------------------------
\7\ See section 771(10) of the Act.
\8\ 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)).
---------------------------------------------------------------------------
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, Petitioner does not offer
a definition of domestic like product distinct from the scope of the
investigation. Based on our analysis of the information submitted on
the record, we have determined that tetrafluoroethane, as defined in
the scope of the investigation, constitutes a single domestic like
product and we have analyzed industry support in terms of that domestic
like product.\9\
---------------------------------------------------------------------------
\9\ See Countervailing Duty Investigation Initiation Checklist:
1,1,1,2-Tetrafluoroethane from the People's Republic of China
(``Initiation Checklist''), at Attachment II, Analysis of Industry
Support for the Petitions Covering 1,1,1,2-Tetrafluoroethane from
the People's Republic of China (``Attachment II''). This checklist
is dated concurrently with this notice and on file electronically
via IA ACCESS. Access to documents filed via IA ACCESS is also
available in the Central Records Unit (``CRU''), Room 7046 of the
main Department of Commerce building.
---------------------------------------------------------------------------
On November 1, 2013, the Department extended the initiation
deadline by 20 days to poll the domestic industry in accordance with
section 702(c)(4)(D) of the Act, because it was ``not clear from the
Petitions whether the industry support criteria have been met. . . .''
\10\
---------------------------------------------------------------------------
\10\ See Notice of Extension of the Deadline for Determining the
Adequacy of the Antidumping Duty and Countervailing Duty Petitions:
1,1,1,2-Tetrafluoroethane From the People's Republic of China, 78 FR
66894, 66895 (November 7, 2013).
---------------------------------------------------------------------------
On November 7, 2013, we issued polling questionnaires to all known
producers of tetrafluoroethane identified in the Petition and by the
ITC. We requested that each company complete the polling questionnaire
and certify its response by the due date specified in the cover letter
to the questionnaire.\11\
---------------------------------------------------------------------------
\11\ For a detailed discussion of the responses received, see
Initiation Checklist, at Attachment II. The polling questionnaire
and questionnaire responses are on file electronically via IA ACCESS
and can also be accessed through the CRU.
---------------------------------------------------------------------------
Our analysis of the data we received in the polling questionnaire
responses indicates that the domestic producers of tetrafluoroethane
who support the Petition account for at least 25 percent of the total
production of the domestic like product and 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.\12\
Accordingly, the Department determines that the industry support
requirements of section 702(c)(4)(A) of the Act have been met.
Therefore, the Department determines that Petitioner filed this
Petition on behalf of the domestic industry because it is an interested
party as defined in section 771(9)(C) of the Act and it has
demonstrated sufficient industry support with respect to the
countervailing duty investigation that it is requesting the Department
initiate.\13\
---------------------------------------------------------------------------
\12\ See Initiation Checklist, at Attachment II.
\13\ Id.
---------------------------------------------------------------------------
Injury Test
Because the PRC 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 the PRC materially
injure, or threaten material injury to, a U.S. industry.
Allegations and Evidence of Material Injury and Causation
Petitioner alleges that imports of the subject merchandise are
benefitting from countervailable subsidies and that such imports are
causing, or threaten to cause, material injury to the U.S. industry
producing the domestic like product. Petitioner alleges that subject
imports exceed the negligibility threshold provided for under section
771(24)(A) of the Act.\14\
---------------------------------------------------------------------------
\14\ See General Issues Supplement, at 5-6 and Exhibit 5.
---------------------------------------------------------------------------
Petitioner contends that the industry's injured condition is
illustrated by reduced market share; underselling and price depression
or suppression; lost sales and revenues; decline in U.S. sales; and
decline in financial performance.\15\ We have assessed the allegations
and supporting evidence regarding material injury, threat of material
injury, and causation, and we have determined that these allegations
are properly supported by adequate evidence and meet the statutory
requirements for initiation.\16\
---------------------------------------------------------------------------
\15\ See Volume I of the Petition, at 4-13 and Exhibits I-5 and
I-8 through I-10; see also General Issues Supplement, at 5-6 and
Exhibits 4 and 5.
\16\ See Initiation Checklist, at Attachment III, Analysis of
Allegations and Evidence of Material Injury and Causation for the
Petitions Covering 1,1,1,2-Tetrafluoroethane from the People's
Republic of China.
---------------------------------------------------------------------------
[[Page 73841]]
Initiation of Countervailing Duty Investigation
Section 702(b)(1) of the Act requires the Department to initiate a
CVD proceeding whenever an interested party files a CVD petition on
behalf of an industry that: (1) alleges the elements necessary for an
imposition of a duty under section 701(a) of the Act; and (2) is
accompanied by information reasonably available to the petitioners
supporting the allegations.
The Department has examined the Petition on tetrafluoroethane from
the PRC and finds that it complies with the requirements of section
702(b)(1) of the Act. Therefore, in accordance with section 702(b)(1)
of the Act, we are initiating a CVD investigation to determine whether
producers/exporters of tetrafluoroethane in the PRC receive
countervailable subsidies. For a discussion of evidence supporting our
initiation determination, see the CVD Initiation Checklist which
accompanies this notice.
Based on our review of the Petition, we find that there is
sufficient information to initiate a CVD investigation of six alleged
programs. For the other three programs alleged by Petitioners, we have
determined that the requirements for initiation have not been met. For
a full discussion of the basis for our decision to initiate or not
initiate on each program, see the CVD Initiation Checklist.
Respondent Selection
For this investigation, the Department intends to select
respondents based on U.S. Customs and Border Protection (``CBP'') data
for U.S. imports during the POI (i.e., calendar year 2012) under the
following Harmonized Tariff Schedule of the United States numbers:
2903.39.2020. We intend to release the CBP data under Administrative
Protective Order (``APO'') to all parties with access to information
protected by APO within five days of the announcement of the initiation
of this investigation. Interested parties may submit comments regarding
the CBP data and respondent selection within seven calendar days of
release of this data. We intend to make our decision regarding
respondent selection within 20 days of publication of this Federal
Register notice.
Notification to Interested Parties
Interested parties must submit applications for disclosure under
APO in accordance with 19 CFR 351.305(b). Instructions for filing such
applications may be found on the Department's Web site at http://enforcement.trade.gov/apo/index.html.
Distribution of Copies of the CVD Petition
In accordance with section 702(b)(4)(A)(i) of the Act and 19 CFR
351.202(f), a copy of the public version of the Petition has been
provided to the representatives of the GOC. Because of the particularly
large number of producers/exporters identified in the Petition, the
Department considers the service of the public version of the petition
to the foreign producers/exporters satisfied by the delivery of the
public version to the GOC, consistent with 19 CFR 351.203(c)(2).
ITC Notification
We have notified the ITC of our 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 subsidized tetrafluoroethane from the PRC
materially injure, or threaten material injury to, a U.S. industry.\17\
A negative ITC determination will result in the investigation being
terminated.\18\ Otherwise, the investigation will proceed according to
statutory and regulatory time limits.
---------------------------------------------------------------------------
\17\ See section 703(a)(2) of the Act.
\18\ See section 703(a)(1) of the Act.
---------------------------------------------------------------------------
Submission of Factual Information
On April 10, 2013, the Department published Definition of Factual
Information and Time Limits for Submission of Factual Information:
Final Rule, 78 FR 21246 (April 10, 2013), which modified two
regulations related to AD and CVD proceedings: the definition of
factual information (19 CFR 351.102(b)(21)), and the time limits for
the submission of factual information (19 CFR 351.301). The final rule
identifies five categories of factual information in 19 CFR
351.102(b)(21), which are summarized as follows: (i) evidence submitted
in response to questionnaires; (ii) evidence submitted in support of
allegations; (iii) publicly available information to value factors
under 19 CFR 351.408(c) or to measure the adequacy of remuneration
under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the
Department; and (v) evidence other than factual information described
in (i)-(iv). The final rule requires any party, when submitting factual
information, to specify under which subsection of 19 CFR 351.102(b)(21)
the information is being submitted 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. The final rule also modified 19 CFR 351.301 so that, rather
than providing general time limits, there are specific time limits
based on the type of factual information being submitted. These
modifications are effective for all proceeding segments initiated on or
after May 10, 2013, and thus are applicable to this investigation.
Please review the final rule, available at http://enforcement.trade.gov/frn/2013/1304frn/2013-08227.txt, prior to
submitting factual information in these investigations.
Revised Extension of Time Limits Regulation
On September 20, 2013, the Department modified its regulation
concerning the extension of time limits for submissions in AD and CVD
proceedings.\19\ The modification clarifies that parties may request an
extension of time limits before a time limit established under Part 351
expires, or as otherwise specified by the Secretary. In general, an
extension request will be considered untimely if it is filed after the
time limit established under Part 351 expires. For submissions which
are due from multiple parties simultaneously, an extension request will
be considered untimely if it is filed after 10:00 a.m. on the due date.
Examples include, but are not limited to: (1) Case and rebuttal briefs,
filed pursuant to 19 CFR 351.309; (2) factual information to value
factors under section 19 CFR 351.408(c), or to measure the adequacy of
remuneration under section 19 CFR 351.511(a)(2), filed pursuant to 19
CFR 351.301(c)(3) and rebuttal, clarification and correction filed
pursuant to 19 CFR 351.301(c)(3)(iv); (3) comments concerning the
selection of a surrogate country and surrogate values and rebuttal; (4)
comments concerning CBP data; and (5) quantity and value
questionnaires. Under certain circumstances, the Department 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, the Department will inform parties in
the
[[Page 73842]]
letter or memorandum setting forth the deadline (including a specified
time) by which extension requests must be filed to be considered
timely. This modification also requires that an extension request must
be made in a separate, stand-alone submission, and clarifies the
circumstances under which the Department will grant untimely-filed
requests for the extension of time limits. These modifications are
effective for all segments initiated on or after October 21, 2013.
Review Extension of Time Limits; Final Rule, available at http://www.gpo.gov/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm, prior to
submitting factual information in this segment.
---------------------------------------------------------------------------
\19\ See Extension of Time Limits; Final Rule, 78 FR 57790
(September 20, 2013).
---------------------------------------------------------------------------
Certification Requirements
Any party submitting factual information in an AD or CVD proceeding
must certify to the accuracy and completeness of that information.\20\
Parties are hereby reminded that revised certification requirements are
in effect for company/government officials as well as their
representatives in all AD or CVD investigations or proceedings
initiated on or after August 16, 2013, including this
investigation.\21\ The formats for the revised certifications are
provided at the end of the Final Rule. The Department intends to reject
factual submissions if the submitting party does not comply with the
revised certification requirements.
---------------------------------------------------------------------------
\20\ See section 782(b) of the Act.
\21\ See Certification of Factual Information To Import
Administration During Antidumping and Countervailing Duty
Proceedings, 78 FR 42678 (July 17, 2013) (``Final Rule'').
---------------------------------------------------------------------------
This notice is issued and published pursuant to section 777(i) of
the Act.
Dated: December 2, 2013.
Paul Piquado,
Assistant Secretary for Enforcement & Compliance.
Appendix
Appendix I
Scope of the Investigation
The product subject to this investigation is 1,1,1,2-
Tetrafluoroethane, R-134a, or its chemical equivalent, regardless of
form, type, or purity level. The chemical formula for 1,1,1,2-
tetrafluoroethane is CF3-CH2F, and the
Chemical Abstracts Service (``CAS'') registry number is CAS 811-97-
2.
1,1,1,2-Tetrafluoroethane is sold under a number of trade names
including Klea 134a and Zephex 134a (Mexichem Fluor); Genetron 134a
(Honeywell); Suva 134a, Dymel 134a, and Dymel P134a (DuPont);
Solkane 134a (Solvay); and Forane 134a (Arkema). Generically,
1,1,1,2-tetrafluoroethane has been sold as Fluorocarbon 134a, R-
134a, HFC-134a, HF A-134a, Refrigerant 134a, and UN3159.
Merchandise covered by the scope of this investigation is
currently classified in the Harmonized Tariff Schedule of the United
States (``HTSUS'') at subheading 2903.39.2020. Although the HTSUS
subheading and CAS registry number are provided for convenience and
customs purposes, the written description of the scope is
dispositive.
[FR Doc. 2013-29341 Filed 12-6-13; 8:45 am]
BILLING CODE 3510-DS-P