On July 16, 2020, the Department of Commerce (Commerce) initiated its countervailing duty investigations on “Phosphate Fertilizers from the Kingdom of Morocco (Morocco) and the Russian Federation (Russia)” (Initiation Notices).  These investigations have been assigned the following case numbers: C-714-001 Morocco and C-821-825 (Russia).

The Scope of Merchandise covered by these investigations reads as follows:

The merchandise covered by these investigations is phosphate fertilizers in all physical forms (i.e., solid or liquid form), with or without coating or additives such as anti-caking agents.  Phosphate fertilizers in solid form are covered whether granular, prilled (i.e., pelletized), or in other solid form (e.g., powdered).

The covered merchandise includes phosphate fertilizers in the following forms:  ammonium dihydrogenorthophosphate or monoammonium phosphate (MAP), chemical formula NH4H2PO4; diammonium hydrogenorthophosphate or diammonium phosphate (DAP), chemical formula (NH4)2HPO4; normal superphosphate (NSP), also known as ordinary superphosphate or single superphosphate, chemical formula Ca(H2PO4)2ꞏCaSO4; concentrated superphosphate, also known as double, treble, or triple superphosphate (TSP), chemical formula Ca(H2PO4)2ꞏH2O; and proprietary formulations of MAP, DAP, NSP, and TSP. 

The covered merchandise also includes other fertilizer formulations incorporating phosphorous and non-phosphorous plant nutrient components, whether chemically-bonded, granulated (e.g., when multiple components are incorporated into granules through, e.g., a slurry process), or compounded (e.g., when multiple components are compacted together under high pressure), including nitrogen, phosphate, sulfur (NPS) fertilizers, nitrogen, phosphorous, potassium (NPK) fertilizers, nitric phosphate (also known as nitrophosphate) fertilizers, ammoniated superphosphate fertilizers, and proprietary formulations thereof that may or may not include other nonphosphorous plant nutrient components.  For phosphate fertilizers that contain non-phosphorous plant nutrient components, such as nitrogen, potassium, sulfur, zinc, or other non-phosphorous components, the entire article is covered, including the non-phosphorous content, provided that the phosphorous content (measured by available diphosphorous pentaoxide, chemical formula P2O5) is at least 5% by actual weight.

Phosphate fertilizers that are otherwise subject to these investigations are included when commingled (i.e., mixed or blended) with phosphate fertilizers from sources not subject to these investigations.  Phosphate fertilizers that are otherwise subject to these investigations are included when commingled with substances other than phosphate fertilizers subject to these investigations (e.g., granules containing only non-phosphate fertilizers such as potash or urea).  Only the subject component of such commingled products is covered by the scope of these investigations.  The following products are specifically excluded from the scope of these investigations:

(1) ABC dry chemical powder preparations for fire extinguishers containing MAP or DAP in powdered form;

(2) industrial or technical grade MAP in white crystalline form with available P2O5 content of at least 60% by actual weight;

(3) industrial or technical grade diammonium phosphate in white crystalline form with available P2O5 content of at least 50% by actual weight;

(4) liquid ammonium polyphosphate fertilizers;

(5) dicalcium phosphate, chemical formula CaHPO4;

(6) monocalcium phosphate, chemical formula CaH4P2O8;

(7) trisodium phosphate, chemical formula Na3PO4;

(8)  sodium tripolyphosphate, chemical formula Na5P3O10;

(9) prepared baking powders containing sodium bicarbonate and any form of phosphate;

(10) animal or vegetable fertilizers not containing phosphate fertilizers otherwise covered by the scope of these investigations;

(11)  phosphoric acid, chemical formula H3PO4.

The Chemical Abstracts Service (CAS) numbers for covered phosphate fertilizers include, but are not limited to:  7722-76-1 (MAP); 7783-28-0 (DAP); and 65996-95-4 (TSP).  The covered products may also be identified by Nitrogen-Phosphate-Potash composition, including but not limited to:  NP 11-52-0 (MAP); NP 18-46-0 (DAP); and NP 0-46-0 (TSP).

The covered merchandise is currently classified in the Harmonized Tariff Schedule of the United States (HTSUS) at subheadings 3103.11.0000; 3103.19.0000; 3105.20.0000; 3105.30.0000; 3105.40.0010; 3105.40.0050; 3105.51.0000; and 3105.59.0000.  Phosphate fertilizers subject to these investigations may also enter under subheadings 3103.90.0010, 3105.10.0000, 3105.60.0000, 3105.90.0010, and 3105.90.0050.  Although the HTSUS subheadings and CAS registry numbers are provided for convenience and customs purposes, the written description of the scope is dispositive.

Requirements For Submitting Comments On The Scope Of The Investigations:  Please be sure to comply with all three requirements established below. 

Deadline for Submitting Comments:

As announced in the Initiation Notices, Commerce is setting aside a period for interested parties to raise issues regarding product coverage (scope).  The period for scope comments is intended to provide Commerce with ample opportunity to consider all comments and to consult with parties prior to the issuance of the preliminary determinations, as appropriate.  If scope comments include factual information (see 19 CFR 351.102(b)(21)), all such factual information should be limited to public information.  Commerce requests that all such comments be filed by 5:00 p.m. Eastern Time (ET) on August 5, 2020, which is 20 calendar days from the signature date of this notice.  Any rebuttal comments, which may include factual information, must be filed by 5:00 p.m. ET on August 17, 2020, which is the next business day¹ after 10 calendar days from the initial comment deadline.² Commerce requests that any factual information the parties consider relevant to the scope of the investigations be submitted during this time 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.

Required Entry of Appearance:

Parties wishing to participate in this segment and be included on the public service list must file a letter of appearance.  Section 351.103(d)(1) of Commerce’s regulations states that “with the exception of a petitioner filing a petition in an investigation, to be included on the public service list for a particular segment, each interested party must file a letter of appearance.” The letter of appearance must be filed separately from any other document (with the exception of an application for APO access).  Note, the letter of appearance must state how the party qualifies as an interested party (e.g., an exporter, producer, importer of the subject merchandise) and must include a point of contact, including address, telephone/fax number and email address.

All submissions to Commerce must be filed electronically using Enforcement and Compliance’s Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).  An electronically-filed document must be received successfully in its entirety by the time, typically 5 p.m., and date when it is due.  Note that Commerce has temporarily modified certain of its requirements for serving documents containing business proprietary information until further notice.3

For your convenience, Commerce has the following resources available online to assist you in complying with these electronic filing procedures:

ACCESS:  Help Link 

https://access.trade.gov/help.aspx

ACCESS:  External User Guide

https://access.trade.gov/help/ACCESS_User_Guide.pdf

ACCESS:  Handbook on Electronic Filing Procedures

https://access.trade.gov/help/Handbook_on_Electronic_Filing_Procedures.pdf

Federal Register notice:  Antidumping and Countervailing Duty Proceedings:  Electronic Filing Procedures; Administrative Protective Order Procedures, 76 FR 39263 (July 6, 2011)

http://www.gpo.gov/fdsys/pkg/FR-2011-07-06/pdf/2011-16352.pdf

Enforcement and Compliance:  Change of Electronic Filing System Name, 79 FR 69046 (November 20, 2014)

http://www.gpo.gov/fdsys/pkg/FR-2014-11-20/pdf/2014-27530.pdf

Enforcement and Compliance:  General Filing Requirements

http://enforcement.trade.gov/filing/index.html

Required Certifications

Understanding Critical Circumstances for Antidumping and Countervailing Duties

Critical circumstances is a provision in both the antidumping and countervailing Duty (AD/CVD) laws that allows for the limited retroactive imposition of duties if certain conditions are met.  Importers should be aware that entries of subject merchandise made after the initiation of an AD/CVD investigation may retroactively be subject to AD/CVD.  

A finding of critical circumstances is an important tool for Commerce and the U.S. International Trade Commission (ITC) to offset possible import surges during the early period of an AD/CVD investigation.  The petitioner in an AD/CVD investigation may allege critical circumstances during an investigation up to 21 days before the date of Commerce’s final determination.  If Commerce makes a determination that critical circumstances exist, it has the statutory authority to order the retroactive suspension of liquidation and posting of a cash deposit for entries made before the issuance of a Preliminary and/or Final AD/CVD determination. 

Commerce’s authority to suspend entries retroactively for AD/CVD is limited to those entries made on or after the later of: (1) 90 days before the effective date the suspension of liquidation was first ordered, or (2) the date on which the determination to initiate the investigation is published in the Federal Register.  In either case, AD/CVD cash deposits are due on entries subject to critical circumstances determinations.

If, following a preliminary determination by Commerce that critical circumstances exist, both Commerce and the ITC reach a final affirmative determination of dumping or subsidization, but either agency makes a negative final determination of critical circumstances, Commerce will instruct U.S. Customs and Border Protection (CBP) to lift suspension from the entries made during the 90-day critical circumstances period and refund cash deposits made with respect to those entries.  Interest is not payable on refunds of cash deposits at this stage in the AD/CVD case. 

AD/CVD Operations, Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230: 

Robert Palmer at (202) 482-9068 (Countervailing Duty Investigation from Morocco); and George Ayache at (202) 482-2623 (Countervailing Duty Investigation from Russia).

Determinations related to these proceedings, issued by Commerce and the ITC, will be published in the Federal Register.  Parties may also view Commerce’s public AD/CVD instructions to CBP in ACE and “ADD CVD Search” at https://aceservices.cbp.dhs.gov/adcvdweb.

[1] In this case, 10 days after the initial comment deadline falls on August 15, 2020, a Saturday.  Where a deadline falls on a weekend or federal holiday, the appropriate deadline is the next business day.  See Notice of Clarification:  Application of “Next Business Day” Rule for Administrative Determination Deadlines Pursuant to the Tariff Act of 1930, As Amended, 70 FR 24533 (May 10, 2005).

[2] See 19 CFR 351.303(b).

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