2020-16220. Silicon Metal From Bosnia and Herzegovina, Iceland, and Malaysia: Initiation of Less-Than-Fair-Value Investigations

AGENCY:

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

DATES:

Applicable July 20, 2020.

FOR FURTHER INFORMATION CONTACT:

Jerry Huang at [phone] (Bosnia and Herzegovina); or Kabir Archuletta at [phone] (Iceland and Malaysia); AD/CVD Operations, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

The Petitions

On June 30, 2020, the Department of Commerce (Commerce) received antidumping duty (AD) petitions concerning imports of silicon metal from Bosnia and Herzegovina (Bosnia), Iceland, and Malaysia filed in proper form on behalf of the petitioners,^[1] domestic producers of silicon metal.^[2] The Petitions were accompanied by a countervailing duty (CVD) petition concerning imports of silicon metal from the Republic of Kazakhstan.^[3]

Between July 6 and 14, 2020, Commerce requested supplemental information pertaining to certain aspects of the Petitions in separate supplemental questionnaires.^[4] The petitioners filed responses to the supplemental questionnaires between July 8 and July 15, 2020.^[5]

In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), the petitioners allege that imports of silicon metal from Bosnia, Iceland, and Malaysia are being, or are likely to be, sold in the United States at less than fair value (LTFV) within the meaning of section 731 of the Act, and that imports of such products are materially injuring, or threatening material injury to, the domestic silicon metal industry in the United States. Consistent with section 732(b)(1) of the Act, the Petitions are accompanied by information reasonably available to the petitioners supporting their allegations.

Commerce finds that the petitioners filed the Petitions on behalf of the domestic industry, because the petitioners are interested parties, as defined in section 771(9)(C) of the Act. Commerce also finds that the petitioners demonstrated sufficient industry support for the initiation of the requested AD investigations.^[6]

Period of Investigation

Because the Petitions were filed on June 30, 2020, the period of investigation (POI) for the Bosnia, Iceland, and Malaysia AD investigations is April 1, 2019 through March 31, 2020, pursuant to 19 CFR 351.204(b)(1).

Scope of the Investigations

The product covered by these investigations is silicon metal from Bosnia, Iceland, and Malaysia. For a full description of the scope of these investigations, see the appendix to this notice.

Scope Comments

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).^[7] Commerce will consider all comments received from interested parties and, if necessary, will consult with interested parties prior to the issuance of the preliminary determinations. If scope comments include factual information,^[8] all such factual information should be limited to public information. To facilitate preparation of its questionnaires, Commerce requests that all interested parties submit such comments by 5:00 p.m. Eastern Time (ET) on August 10, 2020, which is 21calendar 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 August 20, 2020, which is ten calendar days from the initial comment deadline.

Commerce requests that any factual information parties consider relevant to the scope of the investigations be submitted during this period. However, if a party subsequently finds that additional factual information pertaining to the scope of the investigations may be relevant, the party may contact Commerce and request permission to submit the additional information. All such submissions must be filed on the records of the concurrent AD and CVD investigations.

Filing Requirements

All submissions to Commerce must be filed electronically via Enforcement and Compliance's AD and CVD Centralized Electronic Service System (ACCESS), unless an exception applies.^[9] An electronically-filed document must be received successfully in its entirety by the time and date it is due.

Comments on Product Characteristics

Commerce is providing interested parties an opportunity to comment on the appropriate physical characteristics of silicon metal to be reported in response to Commerce's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report the relevant costs of production accurately, as well as to develop appropriate product-comparison criteria.

Interested parties may provide any information or comments that they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics; and (2) product comparison criteria. We note that it is not always appropriate to use all product characteristics as product comparison criteria. We base product comparison criteria on meaningful commercial differences among products. In other words, although there may be some physical product characteristics utilized by manufacturers to describe silicon metal, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, Commerce attempts to list the physical characteristics in order of importance, from most important to least important.

In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, all product characteristics comments must be filed by 5:00 p.m. ET on August 10, 2020. Any rebuttal comments must be filed by 5:00 p.m. ET on August 17, 2020. All comments and submissions to Commerce must be filed electronically using ACCESS, as explained above, on the record of each of the AD investigations.

Determination of Industry Support for the Petitions

Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(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 732(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,^[10] 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.^[11]

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 petitioners do not offer a definition of the domestic like product distinct from the scope of the investigations.^[12] Based on our analysis of the information submitted on the record, we have determined that silicon metal, as defined in the scope, constitutes a single domestic like product, and we have analyzed industry support in terms of that domestic like product.^[13]

In determining whether the petitioners have standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the Petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in the appendix to this notice. To establish industry support, the petitioners provided their actual 2019 production of the domestic like product.^[14] To estimate the 2019 production for the entire U.S. silicon metal industry, the petitioners relied on their own 2019 production data and estimated production data reported for the non-petitioning producer (DC Alabama).^[15] We relied on data provided by the petitioners for purposes of measuring industry support.^[16]

Our review of the data provided in the Petitions, the General Issues Supplement, and other information readily available to Commerce indicates that the petitioners have established industry support for the Petitions.^[17] First, the Petitions 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).^[18] Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the Petitions account for at least 25 percent of the total production of the domestic like product.^[19] Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the Petitions 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 Petitions.^[20] Accordingly, Commerce determines that the Petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.^[21]

Allegations and Evidence of Material Injury and Causation

The petitioners allege 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 sold at LTFV. In addition, the petitioners allege that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act.^[22]

The petitioners contend that the industry's injured condition is illustrated by a significant and increasing volume of subject imports; declining market share; underselling; price depression and suppression; lost sales and revenues; declines in capacity, production, shipments, employment, prices, revenue, and profitability; and declining financial performance.^[23] We assessed the allegations and supporting evidence regarding material injury, threat of material injury, causation, as well as negligibility, and we have determined that these allegations are properly supported by adequate evidence, and meet the statutory requirements for initiation.^[24]

Allegations of Sales at LTFV

The following is a description of the allegations of sales at LTFV upon which Commerce based its decision to initiate AD investigations of imports of silicon metal from Bosnia, Iceland, and Malaysia. The sources of data for the deductions and adjustments relating to U.S. price and normal value (NV) are discussed in greater detail in the country-specific AD Initiation Checklists.

U.S. Price

For all countries, the petitioners based export price (EP) on the average unit value (AUV) of publicly-available import data.^[25] The petitioners made certain adjustments to U.S. price to calculate a net ex-factory U.S. price.^[26]

Normal Value ^[27]

For Bosnia and Iceland, the petitioners were unable to obtain home market prices for silicon metal produced and sold in the subject countries. Therefore, for Bosnia, the petitioners provided third country import AUVs for the POI, as well as price quotes to third countries.^[28] The petitioners also provided information for Bosnia indicating that the AUVs and price quotes were below the COP and, therefore, the petitioners calculated NV based on CV.^[29] For further discussion of CV, see the section “Normal Value Based on Constructed Value.”

For Iceland, the petitioners based NV on AUVs of publicly available data for imports of silicon metal from Iceland into Germany.^[30] The petitioners made certain adjustments to those prices to calculate an ex-factory third country price, in accordance with section 773 of the Act.^[31]

For Malaysia, the petitioners based NV on home market price quotes obtained through market research for silicon metal produced and sold in Malaysia.^[32] The petitioners made certain adjustments to those prices to calculate an ex-factory home market price, in accordance with section 773 of the Act.^[33]

Normal Value Based on Constructed Value

As noted above, the petitioners demonstrated that the third country import AUVs and price quotes for Bosnia were below COP. Accordingly, the petitioners based NV on CV.^[34] Pursuant to section 773(e) of the Act, the petitioners calculated CV as the sum of the cost of manufacturing, selling, general, and administrative expenses, financial expenses, and profit.^[35] We recalculated the financial ratios submitted by the petitioners but made no other changes to their calculation of CV.^[36]

Fair Value Comparisons

Based on the data provided by the petitioners, there is reason to believe that imports of silicon metal from Bosnia, Iceland, and Malaysia are being, or are likely to be, sold in the United States at LTFV. Based on comparisons of EP to NV in accordance with sections 772 and 773 of the Act, the estimated dumping margins for silicon metal for each of the countries covered by this initiation are as follows: (1) Bosnia, 21.41 percent; (2) Iceland, 28.12-47.54 percent; and (3) Malaysia, 11.49—16.92 percent.^[37]

Initiation of LTFV Investigations

Based upon the examination of the Petitions and supplemental responses, we find that they meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of silicon metal from Bosnia, Iceland, and Malaysia are being, or are likely to be, sold in the United States at LTFV. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will make our preliminary determinations no later than 140 days after the date of this initiation.

Respondent Selection

In the Petitions, the petitioners named five producers/exporters of silicon metal in Bosnia, four producers/exporters of silicon metal in Iceland, and six producers/exporters of silicon metal in Malaysia.^[38]

Following standard practice in AD investigations involving market economy countries, in the event Commerce determines that the number of companies is large and that Commerce cannot individually examine each company based upon Commerce's resources, where appropriate, Commerce intends to select mandatory respondents in Bosnia, Iceland, and Malaysia based on U.S. Customs and Border Protection (CBP) data for U.S. imports under the appropriate Harmonized Tariff Schedule of the United States numbers listed in the “Scope of the Investigations,” in the appendix.

For each country, on July 10, 2020, Commerce released CBP data on imports of silicon metal to all parties with access to information protected by Administrative Protective Order (APO) and indicated that interested parties wishing to comment on the CBP data must do so within three business days of the publication date of the notice of initiation of these investigations.^[39] Commerce will not accept rebuttal comments regarding the CBP data or respondent selection.

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 Commerce's website at http://enforcement.trade.gove/​apo.

Distribution of Copies of the AD Petitions

In accordance with section 732(b)(3)(A) of the Act and 19 CFR 351.202(f), copies of the public version of the AD Petitions have been provided to the governments of Bosnia, Iceland, and Malaysia via ACCESS. To the extent practicable, we will attempt to provide a copy of the public version of the AD Petitions to each exporter named in the AD Petitions, as provided under 19 CFR 351.203(c)(2).

ITC Notification

We will notify the ITC of our initiation, as required by section 732(d) of the Act.

Preliminary Determinations by the ITC

The ITC will preliminarily determine, within 45 days after the date on which the AD Petitions were filed, whether there is a reasonable indication that imports of silicon metal from Bosnia, Iceland, and Malaysia are materially injuring, or threatening material injury to, a U.S. industry.^[40] A negative ITC determination for any country will result in the investigation being terminated with respect to that country.^[41] Otherwise, these AD investigations will proceed according to statutory and regulatory time limits.

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) 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 Commerce; and (v) evidence other than factual information described in (i)-(iv). Section 351.301(b) of Commerce's regulations requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted ^[42] 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.^[43] 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. Interested parties should review the regulations prior to submitting factual information in these investigations.

Particular Market Situation Allegation

Section 773(e) of the Act addresses the concept of a particular market situation (PMS) for CV, stating that “if a particular market situation exists such that the cost of materials and fabrication or other processing of any kind does not accurately reflect the cost of production in the ordinary course of trade, the administering authority may use another calculation methodology under this subtitle or any other calculation methodology.” When an interested party submits a PMS allegation pursuant to section 773(e) of the Act, Commerce will respond to such a submission consistent with 19 CFR 351.301(c)(2)(v). If Commerce finds that a PMS exists under section 773(e) of the Act, then it will modify its dumping calculations appropriately.

Neither section 773(e) of the Act, nor 19 CFR 351.301(c)(2)(v), sets a deadline for the submission of PMS allegations and supporting factual information. However, in order to administer section 773(e) of the Act, Commerce must receive PMS allegations and supporting factual information with enough time to consider the submission. Thus, should an interested party wish to submit a PMS allegation and supporting new factual information pursuant to section 773(e) of the Act, it must do so no later than 20 days after submission of a respondent's initial section D questionnaire response.

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. 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, we 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, we 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, stand-alone submission; under limited circumstances we 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 factual information in these investigations.

Certification Requirements

Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.^[44] Parties must use the certification formats provided in 19 CFR 351.303(g).^[45] Commerce intends to reject factual submissions if the submitting party does not comply with the applicable certification requirements.

Notification to Interested Parties

Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. 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 these investigations 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 further notice.^[46]

This notice is issued and published pursuant to sections 732(c)(2) and 777(i) of the Act, and 19 CFR 351.203(c).

Dated: July 20, 2020.

Jeffrey I. Kessler,

Assistant Secretary for Enforcement and Compliance.

Appendix—Scope of the Investigations

The scope of these investigations covers all forms and sizes of silicon metal, including silicon metal powder. Silicon metal contains at least 85.00 percent but less than 99.99 percent silicon, and less than 4.00 percent iron, by actual weight. Semiconductor grade silicon (merchandise containing at least 99.99 percent silicon by actual weight and classifiable under Harmonized Tariff Schedule of the United States (HTSUS) subheading 2804.61.0000) is excluded from the scope of these investigations.

Silicon metal is currently classifiable under subheadings 2804.69.1000 and 2804.69.5000 of the HTSUS. While the HTSUS numbers are provided for convenience and customs purposes, the written description of the scope remains dispositive.

Footnotes

1.  The petitioners are Globe Specialty Metals, Inc. and Mississippi Silicon LLC.

2.  See Petitioners' Letter, “Petitions for the Imposition of Antidumping and Countervailing Duties: Silicon Metal from Bosnia and Herzegovina, Iceland, the Republic of Kazakhstan, and Malaysia,” dated June 30, 2020 (the Petitions).

3.  Id.

4.  See Commerce's Letters, “Petition for the Imposition of Antidumping Duties on Imports of Silicon Metal from Bosnia and Herzegovina, Iceland, and Malaysia and Countervailing Duties on Imports from Kazakhstan: Supplemental Questions,” dated July 6, 2020; and country-specific supplemental questionnaires: Bosnia Supplemental, Iceland Supplemental, Malaysia Supplemental, dated July 6, 2020; and Iceland Second Supplemental, Malaysia Second Supplemental, dated July 14, 2020.

5.  See Petitioners' First Country-Specific Supplemental Responses, dated July 8, 2020; and Petitioners' Letter, “Silicon Metal from Bosnia and Herzegovina, Iceland, and Malaysia and Kazakhstan: General Volume Petition Supplement,” dated July 8, 2020 (General Issues Supplement); see also Petitioners' Second Iceland Supplemental Response, Second Malaysia Supplemental Response, dated July 15, 2020.

6.  See infra, section on “Determination of Industry Support for the Petitions.”

7.  See Antidumping Duties; Countervailing Duties, Final Rule, 62 FR 27296, 27323 (May 19, 1997) (Preamble).

8.  See 19 CFR 351.102(b)(21) (defining “factual information”).

9.  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 help 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%20on%20Electronic%20Filling%20Procedures.pdf.

10.  See section 771(10) of the Act.

11.  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)).

12.  See Volume I of the Petitions at 25-28.

13.  For a discussion of the domestic like product analysis as applied to these cases and information regarding industry support, see the country-specific AD Initiation Checklists at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Silicon Metal from Bosnia and Herzegovina, Iceland, Malaysia, and Kazakhstan (Attachment II). These checklists are dated concurrently with, and hereby adopted by, this notice and on file electronically via ACCESS.

14.  See Volume I of the Petitions at 3-4 and Exhibits I-2 and I-3; see also General Issues Supplement at 2.

15.  See Volume I of the Petitions at 3-4 and Exhibit I-5; see also General Issues Supplement at 2.

16.  Id. For further discussion, see Attachment II of the country-specific AD Initiation Checklists.

17.  See Volume I of the Petitions at 3-4 and Exhibits I-2, I-3, and I-5; see also General Issues Supplement at 2. For further discussion, see Attachment II of the country-specific AD Initiation Checklists.

18.  See Attachment II of the country-specific AD Initiation Checklists; see also section 732(c)(4)(D) of the Act.

19.  See Attachment II of the country-specific AD Initiation Checklists.

20.  Id.

21.  Id.

22.  See Volume I of the Petitions at 31 and Exhibit I-31.

23.  Id. at 41-68 and Exhibits I-1, I-5 through I-7, I-10, I-13, I-15, I-16, I-18, I-20, I-23, I-24, I-32, I-34, and I-37 through I-59.

24.  See country-specific AD Initiation Checklists at Attachment III, Analysis of Allegations and Evidence of Material Injury and Causation for the Antidumping and Countervailing Duty Petitions Covering Silicon Metal from Bosnia and Herzegovina, Iceland, Kazakhstan, and Malaysia (Attachment III).

25.  See country-specific AD Initiation Checklists.

26.  Id.

27.  In accordance with section 773(b)(2) of the Act, for these investigations, Commerce will request information necessary to calculate the constructed value (CV) and cost of production (COP) to determine whether there are reasonable grounds to believe or suspect that sales of the foreign like product have been made at prices that represent less than the COP of the product. Commerce no longer requires a COP allegation to conduct this analysis.

28.  See AD Initiation Checklist for Bosnia.

29.  Id.

30.  See AD Initiation Checklist for Iceland.

31.  Id.

32.  See AD Initiation Checklist for Malaysia.

33.  Id.

34.  See AD Initiation Checklist for Bosnia, Iceland, and Malaysia.

35.  Id.

36.  Id.

37.  Id.

38.  See Volume I of the Petitions at pages 14-20 and Exhibit I-9.

39.  See country-specific memoranda, “Release of Customs Data from U.S. Customs and Border Protection,” dated July 10, 2020.

40.  See section 733(a) of the Act.

41.  Id.

42.  See 19 CFR 351.301(b).

43.  See 19 CFR 351.301(b)(2).

44.  See section 782(b) of the Act.

45.  See Certification of Factual Information to Import Administration During Antidumping and Countervailing Duty Proceedings, 78 FR 42678 (July 17, 2013) (Final Rule). Answers to frequently asked questions regarding the Final Rule are available at http://enforcement.trade.gov/​tlei/​notices/​factual_​info_​final_​rule_​FAQ_​07172013.pdf.

46.  See Temporary Rule Modifying AD/CVD Service Requirements Due to COVID-19; Extension of Effective Period, 85 FR 41363 (July 10, 2020).