[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.

----------------------------------------------------------------------------------------------------------------
                                                             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