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Phosphate Fertilizers from the Russian Federation C-821-825 Investigation POI: 01/01/2019 – 12/31/2019 Public Document E&C/OVIII: GA/WH February 8, 2021 MEMORANDUM TO: Christian Marsh Acting Assistant Secretary for Enforcement and Compliance FROM: James Maeder Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations SUBJECT: Issues and Decision Memorandum for the Final Affirmative Determination of the Countervailing Duty Investigation of Phosphate Fertilizers from the Russian Federation I. SUMMARY The Department of Commerce (Commerce) determines that countervailable subsidies are being provided to producers and exporters of phosphate fertilizers from the Russian Federation (Russia), as provided in section 705 of the Tariff Act of 1930, as amended (the Act). Below is the complete list of issues in this investigation for which we received comments from interested parties. General Issues Comment 1: Whether Commerce’s Rejection of PhosAgro’s Extension Request to Submit Case and Rebuttal Briefs Was Unreasonable Program-Specific Issues Comment 2: Whether the Mining Rights for Less than Adequate Remuneration (LTAR) Program Is Countervailable Comment 2a: Whether the Mining Rights for LTAR Program Constitutes a Financial Contribution Comment 2b: Whether the Mining Rights for LTAR Program Is Specific Comment 2c: Whether the Mining Rights for LTAR Program Confers a Benefit Comment 2d: Whether Mining Rights Provided Prior to the Non-Market Economy “Cut-off” Date Should Be Included in the Mining Rights for LTAR Calculation Comment 2e: Whether Commerce Should Include Freight, Value Added Taxes (VAT), and Import Duties in the Mining Rights Benchmark Comment 2f: Whether the Calculation Methodology of the Mining Rights for LTAR Program Was Appropriate Comment 3: Whether the Natural Gas for LTAR Program Is Countervailable Comment 3a: Whether PJSC Gazprom (Gazprom) Is a Government Authority that Provides a Financial Contribution Comment 3b: Whether Oil Company Rosneft, Public Joint Stock Company (Rosneft) Is a Government Authority that Provides a Financial Contribution Comment 3c: Whether the Saint Petersburg International Commodity Exchange (SPIMEX) Is a Government Authority that Provides a Financial Contribution Comment 3d: Whether the Provision of Natural Gas by Gazprom Is Specific Comment 3e: Whether the Provision of Natural Gas by SPIMEX Is Specific Comment 3f: Whether the Provision of Natural Gas for LTAR Confers a Benefit Comment 3g: Whether Commerce Should Adjust the Natural Gas Benchmark to “Tier One” Comment 3h: Whether Commerce Should Adjust the Natural Gas Benchmark to “Tier Two” Comment 3i: Whether Commerce Should Change the Data Relied Upon in its Natural Gas Benchmark “Tier Three” Analysis Comment 3j: Whether Commerce Should Adjust the Natural Gas Benchmark Data in its “Tier Three” Analysis. Comment 3k: Whether Commerce Should Use a VAT Inclusive Sales Denominator Comment 3l: Whether 19 CFR 351.525(b)(6) Applies to EuroChem’s Natural Gas for LTAR Comment 3m: Whether Commerce Should Consider the Relative Consumption of Natural Gas in the Production of Subject Merchandise for Purposes of Attribution Comment 3n: Whether Commerce Should Use EuroChem’s 2019 Audited Financials for Its Sales Denominators Comment 3o: Whether the Delivery Cost of SPIMEX Natural Gas from EuroChem-Energo LLC (Energo) to JSC Nevinnomyssky Azot (Nevinka) and EuroChem Northwest JSC (EuroChem NW) Should Be Considered in Any Natural Gas Subsidy Calculation Comment 4: Whether the Tax Incentives for Mining Operations – Income Tax Deduction for Exploration Expenses Program Is Specific Comment 5: Whether the Income Tax Deduction for Research and Development (R&D) Expenses Is Specific Comment 6: Whether the Regional Support of Industrial Development Programs, the Special Investment Contract (SPIC) with Perm Krai, and the Preferential Debt Financing of Projects Aimed at Introducing the Best Available Technologies Program Are Specific Company-Specific Issues Comment 7: Whether Commerce Used the Appropriate Denominator to Calculate PhosAgro’s Subsidy Rates 2 II. BACKGROUND A. Case History On November 30, 2020, Commerce published its Preliminary Determination.1 The selected mandatory respondents in this investigation are Industrial Group Phosphorite LLC (Phosphorite) (part of EuroChem Group (EuroChem))2 and Joint Stock Company Apatit (JSC Apatit) (part of PhosAgro PJSC (PhosAgro)).3 On December 21, 2020, Commerce released its Post-Preliminary Determination.4 During the course of this investigation, travel restrictions were imposed that prevented Commerce personnel from conducting on-site verification. In the Preliminary Determination, Commerce notified interested parties that it was unable to conduct verification.5 In lieu of on- site verification, Commerce sent ILOV questionnaires to Phosphorite and JSC Apatit to collect additional or supporting documentation related to information that the parties had already submitted to the record.6 On December 28 and 29, 2020, we received an ILOV questionnaire response from Phosphorite and JSC Apatit, respectively.7 We used the ILOV responses to verify the information relied upon in making this final determination, in accordance with section 782(i) of the Act. On December 29, 2020, we invited parties to comment on the Preliminary Determination, Post- Preliminary Determination, and the ILOV questionnaire responses.8 On January 5, 2021, we received case briefs from the petitioner,9 the Government of Russia (GOR), EuroChem, and 1 See Phosphate Fertilizers from the Russian Federation: Preliminary Affirmative Countervailing Duty Determination, 85 FR 76524 (November 30, 2020) (Preliminary Determination), and accompanying Preliminary Decision Memorandum (PDM). 2 Commerce has found the following companies to be cross-owned with Phosphorite: Mineral and Chemical Company EuroChem, JSC; NAK Azot, JSC (NAK Azot); EuroChem Northwest, JSC; Joint Stock Company Kovdorksy GOK (KGOK); Energo; EuroChem-Usolsky Potash Complex, LLC; EuroChem-BMU, LLC (BMU); Nevinka; and EuroChem Trading Rus, LLC. 3 Commerce has found the following companies to be cross-owned with JSC Apatit: PhosAgro; PhosAgro‐Belgorod LLC; PhosAgro‐Don LLC; PhosAgro‐Kuban LLC; PhosAgro‐Kursk LLC; PhosAgro‐Lipetsk LLC; PhosAgro‐Orel LLC; PhosAgro‐Stavropol LLC; PhosAgro‐Volga LLC; PhosAgro‐SeveroZapad LLC; PhosAgro‐Tambov LLC; and Martynovsk AgrokhimSnab LLC. 4 See Memorandum, “Decision Memorandum for the Post-Preliminary Analysis of Countervailing Duty Investigation of Phosphate Fertilizers from the Russian Federation,” dated December 21, 2020 (Post-Preliminary Determination). 5 See Preliminary Determination, 85 FR at 76525. 6 See Commerce’s Letters, “Countervailing Duty Investigation of Phosphate Fertilizers from the Russian Federation: Supplemental Questionnaire in Lieu of On-Site Verification,” dated December 18, 2020 (ILOV Questionnaire). 7 See EuroChem’s Letter, “Phosphate Fertilizers from Russia,” dated December 28, 2020 (EuroChem ILOV Response); and PhosAgro’s Letter, “Countervailing Duty Investigation of Phosphate Fertilizers from Russia: PhosAgro PJSC In Lieu-of Verification Questionnaire Response,” dated December 29, 2020 (PhosAgro ILOV Response). 8 See Commerce’s Letter, dated December 29, 2020. 9 The petitioner is the Mosaic Company. 3 PhosAgro.10 On January 12, 2021, we received rebuttal briefs from the petitioner, the GOR, EuroChem, and PhosAgro.11 On December 30, 2020, pursuant to 19 CFR 351.310(c), the petitioner, the GOR, EuroChem, and PhosAgro requested that Commerce hold a public hearing.12 On January 15 and 19, 2021, the petitioner, the GOR, EuroChem, and PhosAgro, respectively, withdrew their hearing requests.13 On January 26, 2021, we held an ex-parte meeting with EuroChem at its request.14 B. Period of Investigation (POI) The POI is January 1, 2019, through December 31, 2019. III. USE OF FACTS OTHERWISE AVAILABLE AND ADVERSE INFERENCES A. Legal Standard Section 776(a) of the Act provides that Commerce shall, subject to section 782(d) of the Act, rely on “facts otherwise available” if: (1) necessary information is not on the record; or (2) an interested party or any other person (A) withholds information that has been requested, (B) fails to provide information within the established deadlines or in the form and manner requested by Commerce, subject to subsections (c)(1) and (e) of section 782 of the Act, (C) significantly impedes a proceeding, or (D) provides information that cannot be verified, as provided by section 782(i) of the Act. Where Commerce determines that a response to a request for information does not comply with the request, section 782(d) of the Act provides that Commerce will so inform the party submitting the response and will, to the extent practicable, provide that party an opportunity to 10 See Petitioner’s Letter, “Phosphate Fertilizers from Russia: Petitioner’s Case Brief,” dated January 5, 2021 (Petitioner Case Brief); the GOR’s Letter, “Phosphate Fertilizers from the Russian Federation: GOR Case Brief,” dated January 5, 2021 (GOR Case Brief); EuroChem’s Letter, “Phosphate Fertilizers from Russia,” dated January 5, 2021 (EuroChem Case Brief); and PhosAgro’s Letter, “Countervailing Duty Investigation of Phosphate Fertilizers from Russia: PhosAgro PJSC Case Brief,” dated January 5, 2021 (PhosAgro Case Brief). 11 See Petitioner’s Letter, “Phosphate Fertilizers from Russia: Petitioner’s Rebuttal Brief,” dated January 12, 2021 (Petitioner Rebuttal Brief); the GOR’s Letter, “Phosphate Fertilizers from the Russian Federation: GOR Rebuttal Brief,” dated January 12, 2021
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