2024-18009. Certain Tungsten Shot From the People's Republic of China: Initiation of Countervailing Duty Investigation

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Department of Commerce

International Trade Administration

1. [C-570-179]

AGENCY:

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

DATES:

Applicable August 6, 2024.

FOR FURTHER INFORMATION CONTACT:

Samuel Evans, AD/CVD Operations, Office IX, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

The Petition

On July 10, 2024, the U.S. Department of Commerce (Commerce) received a countervailing duty (CVD) petition concerning imports of certain tungsten shot (tungsten shot) from the People's Republic of China (China) filed in proper form on behalf of Tungsten Parts Wyoming, Inc. (the petitioner), a domestic producer of tungsten shot.^[1] The Petition was accompanied by an antidumping duty (AD) petition concerning imports of tungsten shot from China.^[2]

On July 22, 2024, Commerce tolled the deadline for this administrative proceeding by seven days.^[3] The deadline for the initiation is now August 6, 2024.

Between July 12 and 30, 2024, Commerce requested supplemental information from the petitioner regarding the Petition in supplemental questionnaires.^[4] The petitioner responded to Commerce's supplemental questionnaires between July 18 and August 1, 2024.^[5]

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 Chinese producers of tungsten shot, and that such imports are materially injuring, or threatening material injury to, the industry producing tungsten shot in the United States. Consistent with section 702(b)(1) of the Act and 19 CFR 351.202(b), the alleged programs for which we are initiating this CVD investigation are supported by information in the Petition that is reasonably available to the petitioner.

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.^[6]

Period of Investigation

Because the Petition was filed on July 10, 2024, the period of investigation (POI) is January 1, 2023, through December 31, 2023.^[7]

Scope of the Investigation

The merchandise covered by this investigation is tungsten shot from China. For a full description of the scope of this investigation, see the appendix to this notice.

Comments on Scope of the Investigation

Between July 12 and July 22, 2024, Commerce requested information and clarification from the petitioner regarding the proposed scope to ensure that the scope language in the Petition is an accurate reflection of the products for which the domestic industry is seeking relief.^[8] Between July 18 and July 24, 2024, the petitioner provided clarifications and revised the scope.^[9] The description of merchandise covered by this investigation, as described in the appendix to this notice, reflects these clarifications.

As discussed in the Preamble to Commerce's regulations, we are setting aside a period for parties to raise issues regarding product coverage ( i.e., scope).^[10] Commerce will consider all scope comments received from interested parties and, if necessary, will consult with interested parties prior to the issuance of the preliminary ( print page 65853) determination. If scope comments include factual information, all such factual information should be limited to public information.^[11] To facilitate preparation of its questionnaires, Commerce requests that scope comments be submitted by 5 p.m. Eastern Time (ET) on August 26, 2024, which is 20 calendar days from the signature date of this notice. Any rebuttal scope comments, which may include factual information, must be filed by 5 p.m. ET on September 5, 2024, which is 10 calendar days from the initial comment deadline.

Commerce requests that any factual information that the parties consider relevant to the scope of the investigation be submitted during the time period identified above. 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 scope comments must also 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 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.

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 an opportunity for consultations with respect to the Petition.^[13] While the GOC provided comments on the Petition, it did not request consultations.^[14]

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 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 Commerce and the ITC must apply the same statutory definition regarding the domestic like product,^[15] 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.^[16]

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.^[17] Based on our analysis of the information submitted on the record, we have determined that tungsten shot, as defined in the scope, constitutes a single domestic like product, and we have analyzed industry support in terms of that domestic like product.^[18]

In determining whether the petitioner has standing under section 732(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 2023.^[19] The petitioner stated that there are no other known producers of tungsten shot in the United States; therefore, the Petition is supported by 100 percent of the U.S. industry.^[20] We relied on data provided by the petitioner for purposes of measuring industry support.^[21]

Our review of the data provided in the Petition, the First General Issues Supplement, the Second General Issues Supplement, the Third General Issues Supplement, and other information readily available to Commerce indicates that the petitioner has established ( print page 65854) industry support for the Petition.^[22] 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).^[23] 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.^[24] 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.^[25] 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.^[26]

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, or whether the establishment of a U.S. industry is materially retarded, by reason of imports of the subject merchandise from China.

Allegations and Evidence of Material Retardation, Material Injury, and Causation

Section 703(a)(1)(B) of the Act states that the ITC “shall determine . . . whether there is a reasonable indication that the establishment of an industry in the United States is materially retarded by reason of imports of the subject merchandise.” The petitioner alleges that imports of subject merchandise are benefiting from countervailable subsidies and that such imports are materially retarding the establishment of the U.S. industry producing tungsten shot.^[27] The petitioner argues that that its production has been “modest” and has not stabilized and, therefore, the U.S. industry producing tungsten shot has not been established.^[28] To support its argument, the petitioner examined the five factors ^[29] the ITC considers to determine if an industry is established,^[30] as set forth in the ITC's AD/CVD Handbook.^[31] If the ITC determines that an industry is not established, it then considers whether the performance of the industry reflects normal start-up difficulties or whether the imports of the subject merchandise have materially retarded the establishment of the industry.^[32] The petitioner contends that the domestic industry has performed substantially worse than what could reasonably be expected during normal start-up conditions, thereby demonstrating that the establishment of the domestic industry has been materially retarded by subject imports.^[33] The petitioner also alleges that, in the alternative, 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 benefitting from countervailable subsidies.^[34] In addition, the petitioner alleges that subject imports exceed the negligibility threshold provided under section 771(24)(A) of the Act.^[35]

The petitioner contends that the industry's materially retarded, or in the alternative, injured condition is illustrated by a significant volume of subject imports; significant market share of subject imports; lost sales and revenues; underselling and price depression and/or suppression; and negative impact on income and financial performance.^[36] We assessed the allegations and supporting evidence regarding material retardation, 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.^[37]

Initiation of CVD Investigation

Based upon our examination of the Petition and supplemental responses, we find that they meet the requirements of section 702 of the Act. Therefore, we are initiating a CVD investigation to determine whether imports of tungsten shot from China benefit from countervailable subsidies conferred by the GOC. 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.

Based on our review of the Petition, we find that there is sufficient information to initiate a CVD investigation on 37 of the 38 programs alleged by the petitioner. For a full discussion of the basis for our decision to initiate an investigation of each program, see the China CVD Initiation Checklist. A public version of the initiation checklist for this investigation is available in ACCESS.

Respondent Selection

In the Petition, the petitioner identified 10 companies in China as producers and/or exporters of tungsten shot.^[38] Commerce intends to follow its standard practice in CVD investigations and calculate company-specific subsidy rates in this investigation. In the event that Commerce determines that the number of companies is large, and it cannot individually examine each company based upon Commerce's resources, 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 ( print page 65855) Border Protection (CBP) entry data for U.S. imports under the appropriate Harmonized Tariff Schedule of the United States (HTSUS) subheadings listed in the scope of the investigation. However, for this investigation, the main HTSUS subheading under which the subject merchandise would enter (9306.29.0000) is a basket category under which non-subject merchandise may enter. Therefore, we cannot rely on CBP entry data in selecting respondents. Instead, we intend to issue Q&V questionnaires to each potential respondent for which the petitioner has provided a complete address.

Exporters/producers of tungsten shot 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 Enforcement and Compliance's website at https://access.trade.gov/​resources/​questionnaires/​questionnaires-ad.html. Responses to the Q&V questionnaire must be submitted by the relevant Chinese producers/exporters no later than 5:00 p.m. ET on August 20, 2024, which is two weeks from the signature date of this notice. 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 decision 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)(i) 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 tungsten shot from China materially retard the establishment of a U.S. industry, or that subject imports are materially injuring, or threatening material injury to, a U.S. industry.^[39] A negative ITC determination will result in the investigation being terminated.^[40] Otherwise, this CVD investigation 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 of production 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 ^[41] 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.^[42] 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 this investigation.

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(c), 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.^[43] 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; Commerce will grant untimely filed requests for the extension of time limits only in limited cases where we determine, based on 19 CFR 351.302(c), that extraordinary circumstances exist. Parties should review Commerce's regulations concerning time limits for submission of factual information prior to submitting factual information in this investigation.^[44]

Certification Requirements

Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information.^[45] Parties must use the certification formats provided in 19 CFR 351.303(g).^[46] 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 administrative protective order in accordance with 19 CFR 351.305. Parties wishing to participate in this investigation should ensure that they meet the requirements of 19 CFR 351.103(d) ( e.g., by filing the required letters of appearance). Note that Commerce has amended certain of its requirements pertaining to the service of documents in 19 CFR 351.303(f).^[47]

This notice is issued and published pursuant to sections 702 and 777(i) of the Act, and 19 CFR 351.203(c).

Dated: August 6, 2024.

Scott Fullerton,

Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.

Appendix—Scope of the Investigation

The merchandise covered by the investigation is certain tungsten spheres or ( print page 65856) balls, also known as shot, that are 92.6 percent or greater tungsten by weight, not including the weight of any additional coating. In scope shot have a diameter ranging from 1.5 millimeters (mm) to 10.0 mm. Subject shot can be referred to as “Tungsten Super Shot.” Merchandise is covered regardless of the combination of compounds that comprise the non-tungsten material and whether or not the tungsten shot is additionally coated with another material, including but not limited to copper, nickel, iron, or metallic alloys.

Tungsten shot subject to the investigation may be classified under the following Harmonized Tariff Schedule of the United States (HTSUS) subheading: 9306.29.0000. Merchandise may also be entered under HTSUS subheading 8101.99.8000. The HTSUS subheadings are provided for convenience and customs purposes only. The written description of the scope of the investigation is dispositive.

Footnotes

1.   See Petitioner's Letter, “Petitions for the Imposition of Antidumping and Countervailing Duties” dated July 10, 2024 (Petition).

2.   Id.

3.   See Memorandum, “Tolling of Deadlines for Antidumping and Countervailing Duty Proceedings,” dated July 22, 2024.

4.   See Commerce's Letters, “Supplemental Questions,” dated July 12, 2024 (General Issues Questionnaire); “Supplemental Questions,” dated July 15, 2024; and “Supplemental Questions,” dated July 25, 2024; see also Memorandum, “Phone Call with Counsel to the Petitioner,” dated July 22, 2024 (July 22 Memorandum).

5.   See Petitioner's Letters, “Petitioner's Response to Supplemental Questions Regarding Common Issues and Injury Volume I of the Petitions,” dated July 18, 2024 (First General Issues Supplement); “Petitioner's Response to Supplemental Questions Regarding Volume II of the Petitions,” dated July 18, 2024; “Petitioner's Response to Supplemental Questions Regarding Volume III of the Petitions,” dated July 22, 2024; “Petitioner's Response to Second Supplemental Questions Regarding Volume I of the Petitions,” dated July 24, 2024 (Second General Issues Supplement); “Petitioner's Response to Third Supplemental Questions Regarding Volume I of the Petitions,” dated July 26, 2024 (Third General Issues Supplement); and “Response to Supplemental Questions Regarding Volume III of the Petition,” dated August 1, 2024.

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

7.   See19 CFR 351.204(b)(2).

8.   See General Issues Questionnaire; see also July 22 Memorandum.

9.   See First General Issues Supplement at 1; see also Second General Issues Supplement at 1-2.

10.   See Antidumping Duties; Countervailing Duties,62 FR 27296, 27323 (May 19, 1997) ( Preamble); see also19 CFR 351.312.

11.   See19 CFR 351.102(b)(21) (defining “factual information”).

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 https://access.trade.gov/​help/​Handbook_​on_​Electronic_​Filing_​Procedures.pdf.

13.   See Commerce's Letter, Invitation for Consultations, dated July 15, 2024.

14.   See GOC's Letter, “Comments on Countervailing Duty Petition on Certain Tungsten Shot from the People's Republic of China (C-570-179),” dated July 28, 2024.

15.   See section 771(10) of the Act.

16.   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 Algoma Steel Corp., Ltd. v. United States, 865 F.2d 240 (Fed. Cir. 1989)).

17.   See Petition at Volume I (pages 8-11 and Exhibit I-9); see also First General Issues Supplement at 3-4 and Exhibit I-SUPP-5.

18.  For a discussion of the domestic like product analysis as applied to this case and information regarding industry support, see Checklist, “Certain Tungsten Shot from the People's Republic of China,” dated concurrently with, and hereby adopted by, this notice (China CVD Initiation Checklist), at Attachment II, Analysis of Industry Support for the Antidumping and Countervailing Duty Petitions Covering Certain Tungsten Shot from the People's Republic of China (Attachment II). This checklist is on file electronically via ACCESS.

19.   See Petition at Volume I (page 2 and Exhibits I-3 and I-10); see also Third General Issues Supplement at 2 and Exhibit I-SUPP3-1.

20.   See Petition at Volume I (page 2 and Exhibit I-3); see also First General Issues Supplement at 2-3 and Exhibits I-SUPP-1 through I-SUPP-4; and Second General Issues Supplement at 2 and Exhibits I-SUPP-3 and I-SUPP-4.

21.   See Petition at Volume I (page 2 and Exhibit I-3); see also First General Issues Supplement at 2-3 and Exhibits I-SUPP-1 through I-SUPP-4; Second General Issues Supplement at 2 and Exhibits I-SUPP-3 and I-SUPP-4; and Third General Issues Supplement at 1 and Exhibit I-SUPP3-1. For further discussion, see Attachment II of the China CVD Initiation Checklist.

22.   See Attachment II of the China CVD Initiation Checklist.

23.   Id.; see also section 702(c)(4)(D) of the Act.

24.   See Attachment II of the China CVD Initiation Checklist.

25.   Id.

26.   Id.

27.   See Petition at Volume I (pages 11-25 and Exhibits I-3, I-7, and I-10 through I-14); see also Second General Issues Supplement at 3 and Exhibit I-SUPP2-3; and Third General Issues Supplement at 1 and Exhibit I-SUPP3-1.

28.   See Petition at Volume I (pages 13-18 and Exhibits I-3 and I-10); see also Second General Issues Supplement at 3 and Exhibit I-SUPP2-3; and Third General Issues Supplement at 1 and Exhibit I-SUPP3-1.

29.  For a discussion of the factors related to whether an industry is established, see China CVD Initiation Checklist at Attachment III, Analysis of Allegations and Evidence of Material Retardation, Material Injury, and Causation for the Antidumping and Countervailing Duty Petitions Covering Certain Tungsten Shot from the People's Republic of China (Attachment III).

30.   See Petition at Volume I (pages 13-18 and Exhibits I-3 and I-10); see also Third General Issues Supplement at 1 and Exhibit I-SUPP3-1.

31.   See Antidumping and Countervailing Duty Handbook (14th Ed.), USITC Pub. 4540 (June 2015) ( AD/CVD Handbook), at II-33.

32.   Id.

33.   See Petition at Volume I (Exhibit I-13); see also Second General Issues Supplement at 3.

34.   See Petition at Volume I (page 25).

35.   Id. at 21-22 and Exhibit I-12; see also First General Issues Supplement at 4; and Second General Issues Supplement at 2-3 and Exhibit I-SUPP2-4.

36.   See Petition at Volume I (pages 11-30 and Exhibits I-3, I-7, and I-10 through I-18); see also First General Issues Supplement at 4-5 and Exhibit I-SUPP-6; Second General Issues Supplement at 2-3 and Exhibits I-SUPP2-2 through I-SUPP2-3; and Third General Issues Supplement at 1 and Exhibit I-SUPP3-1.

37.   See Attachment III of the China CVD Initiation Checklist.

38.   See Petition at Volume I (Exhibit GEN-8).

39.   See section 703(a)(1) of the Act.

40.   Id.

41.   See19 CFR 351.301(b).

42.   See19 CFR 351.301(b)(2).

43.   See19 CFR 351.302.

44.   See19 CFR 351.301; see also Extension of Time Limits; Final Rule,78 FR 57790 (September 20, 2013), and Regulations Improving and Strengthening the Enforcement of Trade Remedies Through the Administration of the Antidumping and Countervailing Duty Laws,89 FR 20766 (March 25, 2024).

45.   See section 782(b) of the Act.

46.   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: https://enforcement.trade.gov/​tlei/​notices/​factual_​info_​final_​rule_​FAQ_​07172013.pdf.

47.   See Administrative Protective Order, Service, and Other Procedures in Antidumping and Countervailing Duty Proceedings,88 FR 67069 (September 29, 2023).