Ferrosilicon From the Russian Federation: Preliminary Affirmative Critical Circumstances Determinations

AGENCY:

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

SUMMARY:

The U.S. Department of Commerce (Commerce) preliminarily determines that that critical circumstances exist, with respect to imports of ferrosilicon in the antidumping duty (AD) and countervailing duty (CVD) investigations of ferrosilicon from the Russian Federation (Russia). The AD period of investigation is July 1, 2023, through December 31, 2023, and the CVD period of investigation is January 1, 2023, through December 31, 2023.

DATES:

Applicable August 28, 2024.

SUPPLEMENTARY INFORMATION:

Background

These preliminary determinations are made in accordance with sections 703(e) and 733(e) of the Tariff Act of 1930, as amended (the Act). Commerce published the notices of initiation of these AD and CVD investigations on April 24, 2024. On August 9, 2024, CC Metals and Alloys, LLC and Ferroglobe USA, INC. (collectively, the petitioners) filed timely allegations, pursuant to sections 703(e)(1) and 733(e)(1) of the Act and 19 CFR 351.206, that critical circumstances exist with respect to ferrosilicon from Russia. On August 19, 2024, the Government of Russia (GOR) submitted comments in response to the petitioners' CVD critical circumstances allegation. Commerce published its preliminary AD and CVD determinations on June 28, 2024. In the CVD Preliminary Determination, we applied adverse facts available (AFA) to the mandatory respondent, Russian Ferro Alloys Inc./RFA International LP (RFA) and determined an all-others rate based on the rate for RFA. In the AD Preliminary Determination, we assigned the Russia-wide entity an AFA rate as no individual producers/exporters participated in the investigation.

In accordance with sections 703(e)(1) and 733(e)(1) of the Act and 19 CFR 351.206(c)(1) and (2)(ii), because the petitioners submitted the critical circumstances allegations more than 30 days before the scheduled date of the final determinations, Commerce will make preliminary findings as to whether there is a reasonable basis to believe or suspect that critical circumstances exist and will issue preliminary critical circumstances determinations within 30 days after the allegations are filed.

Critical Circumstances Allegations

The petitioners allege that imports of ferrosilicon from Russia were massive over a relatively short period, and provided monthly import data comparing a base period of January 2024 through March 2024, to a comparison period of April 2024 through June 2024. The petitioners allegation of massive imports utilizes base and comparison periods established in accordance with 19 CFR 351.206(i) and reflects an increase from 0 to 5,744.922 metric tons, which is “massive” under 19 CFR 351.206(h)(2) and under sections 703(e)(1)(b) and 733(e)(1)(b) of the Act. For the CVD investigation, the petitioners also allege that there is a reasonable basis to believe that there are subsidies in this investigation which are inconsistent with the World Trade Organization Agreement on Subsidies and Countervailing Measures (SCM Agreement). For the AD investigation, the petitioners also allege that there is reason to believe there is history of dumping and material injury by reason of dumped imports in the United States or elsewhere of ferrosilicon and a reason to believe importers knew or should have known that Russian producers and/or exporters were selling ferrosilicon at less than fair value (LTFV) and that material injury was likely.

Analysis

CVD Allegation: Alleged Countervailable Subsidies Are Inconsistent With the SCM Agreement

Section 703(e)(1) of the Act provides that Commerce will determine that critical circumstances exist in CVD investigations if there is a reasonable basis to believe or suspect that the alleged countervailable subsidy is inconsistent with the SCM Agreement.

To determine whether an alleged countervailable subsidy is inconsistent with the SCM Agreement, in accordance with section 703(e)(1)(A) of the Act, Commerce considered the evidence currently on the record of this investigation. As determined in the CVD Preliminary Determination, we found, based on AFA, that the non-cooperating mandatory respondent RFA used the Import Substitution Loans program. Record evidence indicates that this program is contingent on the use of domestic over imported goods, rendering it inconsistent with Article 3 of the SCM Agreement. Therefore, Commerce preliminarily determines, for purposes of this critical circumstances' determination, that there are subsidies in this investigation that are inconsistent with the SCM Agreement.

AD Allegation: History of Dumping and Material Injury by Reason of Dumped Imports in the United States or Elsewhere of the Subject Merchandise

In determining whether there is a history of dumping pursuant to section 733(e)(1)(A)(i) of the Act, Commerce generally considers current or previous AD orders on subject merchandise from the country in question in the United States and current orders in any other country with regard to imports of subject merchandise. On May 4, 2021, Egypt imposed an antidumping duty order on imports of ferrosilicon from Russia. This third-country antidumping duty order remains in effect and constitutes evidence of a history of dumping and material injury by reason of LTFV sales.

AD Allegation: The Importer Knew or Should Have Known That the Exporter Was Selling at Less Than Fair Value and That There Was Likely To Be Material Injury

In determining whether importers knew or should have known that exporters were selling subject merchandise at LTFV and that there was likely to be material injury by reason of such sales, pursuant to section 733(e)(1)(A)(ii), Commerce must rely on the facts before it at the time the determination is made. Commerce generally bases its decision with respect to knowledge on the margins calculated in the preliminary determination and the U.S. International Trade Commission's (ITC) preliminary injury determination.

Commerce normally considers margins of 25 percent or more for export price sales and 15 percent or more for constructed export price sales sufficient to impute importer knowledge of sales at LTFV. In this investigation, we preliminarily assigned a dumping margin of 283.27 percent to the Russia-wide entity, which exceeds the minimum margin required to impute knowledge of dumping to U.S. importers.

In assessing importers' knowledge of likely material injury, Commerce relies on a preliminary affirmative determination by the ITC to impute the requisite knowledge to U.S. importers. Thus, Commerce finds that U.S. importers knew or should have known that imports of ferrosilicon from Russia were being sold at LTFV and were likely to cause injury, which is sufficient to satisfy the first requirement for an affirmative critical circumstances determination.

Massive Imports

In determining whether there have been “massive imports” over a “relatively short period,” pursuant to sections 703(e)(1)(B) and 733(e)(1)(B) of the Act and 19 CFR 351.206(h), Commerce normally compares the import volumes of the subject merchandise for at least three months immediately preceding the filing of the petition ( i.e., the “base period”) to a comparable period of at least three months following the filing of the petition ( i.e., the “comparison period”). Imports normally will be considered massive when imports during the comparison period have increased by 15 percent or more compared to imports during the base period. The regulations also provide, however, that if Commerce finds that importers, or exporters or producers, had reason to believe, at some time prior to the beginning of the proceeding, that a proceeding was likely, Commerce may consider a period of not less than three months from that earlier time. In this case, Commerce compared the import volumes of subject merchandise, as provided by the petitioners, for the three months immediately preceding and three months following the filing of the petition, ending with the month prior to the AD Preliminary Determination and the CVD Preliminary Determination.

Because the petitions were filed on March 28, 2024, to determine whether there was a massive surge in imports for the cooperating mandatory respondent, Commerce compared the total volume of shipments during the period January 2024 through March 2024 with the volume of shipments during the following three-month period of April 2024 through June 2024. Based on this analysis, we preliminarily determine that there was a massive surge in imports from RFA and “all other” producers/exporters from Russia (for CVD) and for the Russia-wide entity (for AD).

Conclusion

For the CVD investigation, based on the criteria and findings discussed above, we preliminarily determine that critical circumstances exist with respect to imports of ferrosilicon from Russia produced or exported by RFA and all other producers/exporters. For the AD investigation, based on the criteria and findings discussed above, we preliminarily determine that critical circumstances exist with respect to all imports of ferrosilicon from Russia produced or exported by the Russia-wide entity.

Final Critical Circumstances Determinations

We will make final critical circumstances determinations concerning critical circumstances in the final AD and CVD determinations, which are currently due no later than September 11, 2024.

Public Comment

Interested parties are invited to comment on these preliminary critical circumstances determinations no later than five days after the date on which this notice is published in the Federal Register . Given that the final determinations for the AD and CVD investigations are due no later than September 11, 2024, Commerce will allow two days for parties to submit rebuttal comments.

We request that interested parties provide at the beginning of their briefs a public, executive summary for each issue raised in their briefs. Further, we request that interested parties limit their executive summary of each issue to no more than 450 words, not including citations. We intend to use the executive summaries as the basis of the comment summaries included in the issues and decision memoranda that will accompany the final determinations in these investigations. We request that interested parties include footnotes for relevant citations in the executive summary of each issue. Note that Commerce has amended certain of its requirements pertaining to the service of documents in 19 CFR 351.303(f).

Suspension of Liquidation

In accordance with section 703(e)(2)(A) of the Act, for all entries, we will direct U.S. Customs and Border Protection (CBP) to suspend liquidation of any unliquidated entries of subject merchandise from Russia entered, or withdrawn from warehouse for consumption, on or after March 30, 2024, which is 90 days prior to the date of publication of the AD Preliminary Determination and CVD Preliminary Determination in the Federal Register . For such entries, CBP shall require a cash deposit equal to the estimated weighted-average dumping margin established in the AD Preliminary Determination and CVD Preliminary Determination. This suspension of liquidation will remain in effect until further notice.

U.S. International Trade Commission Notification

In accordance with sections 703(f) and 733(f) of the Act, we will notify the ITC of these preliminary determinations of critical circumstances.

Notification to Interested Parties

This determination is issued and published pursuant to sections 703(f), 733(f), and 777(i) of the Act and 19 CFR 351.206.

[FR Doc. 2024-19393 Filed 8-26-24; 4:15 pm]

BILLING CODE 3510-DS-P