[Federal Register Volume 85, Number 28 (Tuesday, February 11, 2020)]
[Notices]
[Pages 7724-7726]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-02696]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-122-868, C-560-834, C-552-826]
Utility Scale Wind Towers From Canada, Indonesia, and the
Socialist Republic of Vietnam; Countervailing Duty Investigations:
Preliminary Determinations of Critical Circumstances
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (Commerce) preliminarily determines
that in the countervailing duty investigations on utility scale wind
towers (wind towers), critical circumstances exist with respect to
imports of wind towers from Indonesia and do not exist with respect to
imports of wind towers from Canada or the Socialist Republic of Vietnam
(Vietnam).
DATES: Applicable February 11, 2020.
FOR FURTHER INFORMATION CONTACT: Tyler Weinhold at (202) 482-1121
(Canada), Alex Wood at (202) 482-1955 (Indonesia), or Julie Geiger at
(202) 482-2057 (Vietnam); AD/CVD Operations, Offices II and VI,
Enforcement and Compliance, International Trade Administration, U.S.
Department of Commerce, 1401 Constitution Avenue NW, Washington, DC
20230.
SUPPLEMENTARY INFORMATION:
Background
In response to petitions filed on July 9, 2019, the Commerce
initiated countervailing duty (CVD) investigations concerning wind
towers from Canada, Indonesia, and Vietnam.\1\ On December 13, 2019,
Commerce announced its preliminary CVD determinations \2\ and, on the
same day, received timely allegations, pursuant to section 703(e)(1) of
the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.206, that
critical circumstances exist with respect to imports of wind towers
from Canada, Indonesia, and Vietnam.\3\ In accordance with section
703(e)(1) of the Act and 19 CFR 351.206(c)(1), because the Wind Tower
Trade Coalition (the petitioner) submitted its 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.\4\
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\1\ See Utility Scale Wind Towers from Canada, Indonesia, and
the Socialist Republic of Vietnam: Initiation of Countervailing Duty
Investigations, 84 FR 38216 (August 6, 2019).
\2\ See Utility Scale Wind Towers from Canada: Preliminary
Affirmative Countervailing Duty Determination, and Alignment of
Final Determination with Final Antidumping Duty Determination, 84 FR
68126 (December 13, 2019) (Canada CVD Preliminary Determination);
see also Utility Scale Wind Towers from Indonesia: Preliminary
Affirmative Countervailing Duty Determination and Alignment of Final
Determination with Final Antidumping Duty Determination, 84 FR 68109
(December 13, 2019) (Indonesia CVD Preliminary Determination);
Utility Scale Wind Towers from the Socialist Republic of Vietnam:
Preliminary Affirmative Countervailing Duty Determination and
Alignment of Final Determination with Final Antidumping Duty
Determination, 84 FR 68104 (December 13, 2019) (Vietnam CVD
Preliminary Determination).
\3\ See Petitioner's Letter, ``Utility Scale Wind Towers from
Canada, Indonesia, the Republic of Korea, and the Socialist Republic
of Vietnam: Critical Circumstances Allegations,'' dated December 13,
2019 (Critical Circumstances Allegations).
\4\ Pursuant to section 703(e) of the Act and 19 CFR 351.206,
the petitioner requested that we make our determinations at the
earliest practicable time, but not later than the preliminary
determinations in the antidumping duty investigations. We
acknowledge that we have not made our preliminary critical
circumstances determinations within the timeframe specified in 19
CFR 351.206(c)(2)(ii), but we have made it by the date requested by
the petitioner. See Critical Circumstances Allegations at 4.
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Critical Circumstances Analysis
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: (A) The alleged
countervailable subsidy is inconsistent with the Agreement on Subsidies
and Countervailing Measures (SCM Agreement) of the World Trade
Organization; and (B) there have been massive imports of the subject
merchandise over a relatively short period.\5\ Pursuant to 19 CFR
351.206(h)(2), imports must increase by at least 15 percent during the
``relatively short period'' to be considered ``massive,'' and 19 CFR
351.206(i) defines a ``relatively short period'' as normally being the
period beginning on the date the proceeding begins (i.e., the date the
petition is filed) and ending at least three months later.\6\ 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.\7\
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\5\ Commerce limits its critical circumstances findings to those
subsidies contingent upon export performance or use of domestic over
imported goods (i.e., those prohibited under Article 3 of the SCM
Agreement). See, e.g., Final Affirmative Countervailing Duty
Determination and Final Negative Critical Circumstances
Determination: Carbon and Certain Alloy Steel Wire from Germany, 67
FR 55808, 55809-10 (August 30, 2002).
\6\ See 19 CFR 351.102 and 19 CFR 351.206.
\7\ See 19 CFR 351.206(i).
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Alleged Countervailable Subsidies Are 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 the Canada, Indonesia, and Vietnam CVD investigations. In
each of the three preliminary determinations, we examined a single
mandatory respondent and assigned the all-others
[[Page 7725]]
rate based upon the rate assigned to the mandatory respondent.
Specifically, as determined in our preliminary determinations, we found
the following subsidy programs to be export contingent, which would
render them inconsistent with the SCM Agreement: Indonesia's exemption
from import tax withholding for companies in bonded zones, and
Vietnam's income tax preferences, import duty exemptions on imports of
spare parts and accessories in industrial zones, and import duty
exemptions on imports of raw materials for exporting goods.\8\ With
respect to Canada, we preliminarily did not find any subsidies that are
inconsistent with the SCM Agreement.\9\
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\8\ See Indonesia CVD Preliminary Determination and accompanying
Preliminary Decision Memorandum (PDM) at 21-23; see also Vietnam CVD
Preliminary Determination and accompanying PDM at 6-8.
\9\ See Canada CVD Preliminary Determination and accompanying
PDM.
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Therefore, Commerce preliminarily determines, for purposes of these
critical circumstances determinations, that there are no subsidies in
the Canada investigation that are inconsistent with the SCM Agreement,
and that there are subsidies in the Indonesia and Vietnam
investigations that are inconsistent with the SCM Agreement.
Massive Imports
In determining whether there have been ``massive imports'' over a
``relatively short period,'' pursuant to section 703(e)(1)(B) of the
Act, 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''). In this case, Commerce compared the import
volumes of subject merchandise, as provided by each of the mandatory
respondents,\10\ for five months immediately preceding and following
the filing of the petition. 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.\11\
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\10\ In December 2019, the mandatory respondents to each of the
three investigations timely provided quantity and value shipment
data, pursuant to requests by Commerce.
\11\ See 19 CFR 351.206(h)(2). On December 31, 2019, the
mandatory respondent from Indonesia, PT Kenertec Power System, filed
comments objecting to the petitioner's critical circumstances
allegation. We considered these comments and find them to be
unavailing, as they do not pertain to the criteria listed in the
statute, or regulations, with respect to determining the existence
of critical circumstances. This is consistent with our findings in
other cases where parties have made similar arguments with respect
to criteria not explicitly listed in the statute or regulations with
respect to the determination of massive imports. See, e.g., Certain
Quartz Surface Products from the People's Republic of China: Final
Affirmative Determination of Sales at Less Than Fair Value, and
Final Affirmative Determination of Critical Circumstances, 84 FR
23767 (May 23, 2019), and accompanying Issues and Decision
Memorandum at Comment 2.
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Because the petitions were filed on July 9, 2019, in order to
determine whether there was a massive surge in imports for each
cooperating mandatory respondent, Commerce compared the total volume of
shipments during the period July 2019 through November 2019 with the
volume of shipments during the preceding five-month period of February
2019 through June 2019. With respect to Canada and Vietnam, we
preliminarily determine that there were no massive surges in imports
for the respective mandatory respondents. With respect to Indonesia, we
preliminarily determine there was a massive surge in imports for
Kenertec.\12\
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\12\ See respective preliminary critical circumstances memoranda
for each proceeding for a description of the methodology and results
of Commerce's critical circumstances analysis, dated concurrently
with this notice.
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For ``all others,'' in each of the three countries, we also
attempted to analyze monthly shipment data for the same time periods,
using import data from Global Trade Atlas (GTA),\13\ adjusted to remove
the mandatory respondents' shipment data. However, this analysis was
not possible in this case, because the quantity of shipments reported
by the mandatory respondents was greater than the quantity of imports
recorded in the GTA statistics for the U.S. Harmonized Tariff Schedule
categories included in the Petition. Therefore, we find that necessary
information is not available on the records for each of the three
investigations, pursuant to section 776(a)(1) of the Act, as to whether
imports were massive for ``all other'' producers. Thus, as facts
available, we based our analysis for ``all other'' producers and
exporters on the results of the massive determination for the mandatory
respondents in the respective countries. Consequently, as facts
available, we find that there were no massive imports for ``all other''
producers from Canada and Vietnam, but that there were massive imports
for ``all other'' producers from Indonesia.
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\13\ Commerce gathered GTA data under the following harmonized
tariff schedule numbers: 7308.20.0020 and 8502.31.0000.
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Conclusion
Based on the criteria and findings discussed above, we
preliminarily determine that critical circumstances exist with respect
to imports of wind towers by certain producers/exporters. Our findings
are summarized as follows.
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Affirmative preliminary Negative preliminary
Country Case No. critical circumstances critical circumstances
determinations determinations
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Canada................................. C-122-868 ......................... Marmen Inc., Marmen
[Eacute]nergie Inc.,
Gestion Marmen Inc.; all
other producers/
exporters.
Indonesia.............................. C-560-834 PT Kenertec Power System; .........................
all other producers/
exporters..
Vietnam................................ C-552-826 ......................... CS Wind Tower Co., Ltd.;
all other producers/
exporters.
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Final Critical Circumstances Determinations
We will issue critical circumstances determinations when we issue
our final countervailing duty determinations.
Public Comment
Case briefs or other written comments may be submitted no later
than seven days after the date on which the last verification report is
issued in each respective investigation. Rebuttal briefs, limited to
issues raised in case briefs, may be submitted no later than five days
after the deadline date for case briefs.\14\ Pursuant to 19 CFR
351.309(c)(2) and (d)(2), parties who submit case briefs or rebuttal
briefs in this investigation are encouraged to submit with each
argument: (1) A statement of the issue; (2) a brief summary of the
argument; and (3) a table of authorities.\15\
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\14\ See 19 CFR 351.309(d)(1).
\15\ See 19 CFR 351.309(c)(2) and (d)(2).
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Electronically filed documents must be received successfully in
their entirety
[[Page 7726]]
by 5:00 p.m. Eastern Time on the due dates established above.\16\
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\16\ See 19 CFR 351.303(b)(1).
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ITC Notification
In accordance with section 703(f) of the Act, we will notify the
ITC of our determinations.
Suspension of Liquidation
In accordance with section 703(e)(2)(A) of the Act, for PT Kenertec
Power System and all other exporters/producers in Indonesia, we will
direct U.S. Customs and Border Protection (CBP) to suspend liquidation
of any unliquidated entries of subject merchandise from Indonesia
entered, or withdrawn from warehouse for consumption, on or after
September 14, 2019, which is 90 days prior to the date of publication
of the Indonesia CVD Preliminary Determination in the Federal Register.
For such entries, CBP shall require a cash deposit equal to the
estimated preliminary countervailable subsidy rates established in the
Indonesia CVD Preliminary Determination. This suspension of liquidation
will remain in effect until further notice.
This determination is issued and published pursuant to section
777(i) of the Act and 19 CFR 351.206.
Dated: February 4, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2020-02696 Filed 2-10-20; 8:45 am]
BILLING CODE 3510-DS-P