[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Notices]
[Pages 46064-46067]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-11531]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-552-837]


Aluminum Extrusions From the Socialist Republic of Vietnam: 
Preliminary Affirmative Determination of Critical Circumstances, in 
Part, in the Less-Than-Fair Value Investigation

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.
SUMMARY: The U.S. Department of Commerce (Commerce) preliminarily 
determines that critical circumstances exist regarding certain imports 
of aluminum extrusions from the Socialist Republic of Vietnam 
(Vietnam).

DATES: Applicable May 28, 2024.

FOR FURTHER INFORMATION CONTACT: Rebecca Janz at (202) 482-2972; AD/CVD 
Operations, Office II, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

Background

    On October 24, 2023, Commerce initiated a less-than-fair value 
(LTFV) investigation concerning aluminum extrusions from Vietnam.\1\ On 
April 19, 2024, the U.S. Aluminum Extruders Coalition and the United 
Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied 
Industrial and Service Workers International Union (collectively, the 
petitioners) filed a timely critical circumstances allegation, pursuant 
to section 703(e)(1) of the Tariff Act of 1930, as amended, (the Act) 
and 19 CFR 351.206, alleging that critical circumstances exist with 
respect to aluminum extrusions from Vietnam.\2\ Commerce published its 
preliminary LTFV determination on May 7, 2024.\3\
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    \1\ See Aluminum Extrusions from the People's Republic of China, 
Colombia, the Dominican Republic, Ecuador, India, Indonesia, Italy, 
the Republic of Korea, Malaysia, Mexico, Taiwan, Thailand, the 
Republic of Turkey, the United Arab Emirates, and the Socialist 
Republic of Vietnam: Initiation of Less-Than-Fair-Value 
Investigations, 88 FR 74421 (October 31, 2023) (Initiation Notice).
    \2\ See Petitioners' Letter, ``Critical Circumstances 
Allegation,'' dated April 19, 2024 (Critical Circumstances 
Allegation).
    \3\ See Aluminum Extrusions from the Socialist Republic of 
Vietnam: Preliminary Affirmative Determination of Sales at Less Than 
Fair Value, Postponement of Final Determination, and Extension of 
Provisional Measures, 89 FR 38075 (May 7, 2024) (Preliminary 
Determination), and accompanying Preliminary Decision Memorandum 
(PDM).
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    In accordance with 19 CFR 351.206(c)(1) and (c)(2)(ii), when a 
critical circumstances allegation is filed

[[Page 46065]]

30 days or more before the scheduled date of the final determination, 
but later than 20 days before the scheduled date of the preliminary 
determination, Commerce will make a preliminary finding whether there 
is a reasonable basis to believe or suspect that critical circumstances 
exist and will issue a preliminary critical circumstances determination 
within 30 days after the allegation is filed.

Legal Framework

    Section 733(e)(1) of the Act provides that Commerce, upon receipt 
of a timely allegation of critical circumstances, will determine 
whether there is a reasonable basis to believe or suspect that: (A)(i) 
there is a history of dumping and material injury by reason of dumped 
imports in the United States or elsewhere of the subject merchandise, 
or (ii) the person by whom, or for whose account, the merchandise was 
imported knew or should have known that the exporter was selling the 
subject merchandise at less than its fair value and that there was 
likely to be material injury by reason of such sales; and (B) there 
have been massive imports of the subject merchandise over a relatively 
short period.
    Further, 19 CFR 351.206(h)(1) provides that, in determining whether 
imports of the subject merchandise have been ``massive,'' Commerce will 
normally examine: (i) the volume and value of the imports; (ii) 
seasonal trends; and (iii) the share of domestic consumption accounted 
for by the imports. In addition, 19 CFR 351.206(h)(2) provides that, 
``{i{time} n general, unless the imports during the `relatively short 
period' . . . have increased by at least 15 percent over the imports 
during an immediately preceding period of comparable duration, the 
Secretary will not consider the imports massive.'' Section 351.206(i) 
of Commerce's regulations defines ``relatively short period'' generally 
as the period starting on the date the proceeding begins (i.e., the 
date the petition is filed) and ending at least three months later. 
This section of the regulations further provides 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.

Critical Circumstances Allegation

    In their allegation, the petitioners state that based on the 
dumping margins calculated in the petition (i.e., 41.84 percent), 
importers knew or should have known that imports of aluminum extrusions 
from Vietnam were being sold at LTFV because this margin exceeds the 25 
and 15 percent thresholds established for export price (EP) and 
constructed export price (CEP), respectively.\4\ Additionally, the 
petitioners contend that the U.S. International Trade Commission's 
(ITC's) affirmative determination that there is a reasonable indication 
that an industry in the United States is materially injured by reason 
of imports of aluminum extrusions from Vietnam is sufficient to impute 
knowledge of the likelihood of material injury.\5\
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    \4\ See Initiation Notice, 88 FR at 77426.
    \5\ See Aluminum Extrusions from China, Colombia, Dominican 
Republic, Ecuador, India, Indonesia, Italy, Malaysia, Mexico, South 
Korea, Taiwan, Thailand, Turkey, United Arab Emirates, and Vietnam, 
88 FR 82913 (November 27, 2023) (ITC Preliminary Determination).
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    Finally, as part of their allegation and pursuant to 19 CFR 
351.206(h)(2), the petitioners provided monthly import data for the 
Harmonized Tariff Schedule of the United States (HTSUS) subheadings 
included in the scope of the investigation for the period between May 
2023 and February 2024 as evidence of massive imports of aluminum 
extrusions from Vietnam during a relatively short period.\6\
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    \6\ See Critical Circumstances Allegation at 7-8.
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    On April 29, 2024, GameChange Solar (GameChange), a U.S. importer 
of bearings that contain aluminum extrusions, responded to the Critical 
Circumstances Allegation, asserting lack of knowledge of injurious 
dumping and arguing that Commerce should make a critical circumstances 
determination specific to GameChange.\7\
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    \7\ See GameChange's Letter, ``GameChange's Response to 
Petitioners' Critical Circumstances Allegation,'' dated April 29, 
2024 (GameChange Response), at 2-5 (citing Zhejiang Native Produce & 
Animal By-Products Imp. & Exp. Corp. v. United States, 432 F.3d 
1363, 1367 (Fed. Cir. 2005) (Zhejiang Native Produce)); see also 
GameChange's Letter, ``Errata to GameChange's Response to 
Petitioners' Critical Circumstances Allegation,'' dated April 29, 
2024.
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Analysis

    Generally, when determining whether critical circumstances exist 
pursuant to the statutory criteria, Commerce examines record evidence, 
including: (1) the evidence presented in the petitioners' allegation; 
(2) import statistics released by the ITC; and (3) shipment information 
submitted to Commerce by the respondents selected for individual 
examination.\8\ Consistent with Commerce practice, here we examined 
record information obtained since the initiation of this investigation, 
as well as the ITC's preliminary injury determination.\9\
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    \8\ See, e.g., Notice of Final Determination of Sales at Less 
Than Fair Value and Affirmative Final Determination of Critical 
Circumstances: Circular Welded Carbon Quality Steel Pipe from the 
People's Republic of China, 73 FR 31970, 31972-73 (June 5, 2008); 
see also Final Determination of Sales at Less Than Fair Value and 
Affirmative Determination of Critical Circumstances: Small Diameter 
Graphite Electrodes from the People's Republic of China, 74 FR 2049, 
2052-53 (January 14, 2009).
    \9\ See, e.g., Critical Circumstances Allegation; GameChange 
Response; and ITC Preliminary Determination.
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Section 733(e)(1)(A)(i) of the Act: 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 antidumping duty (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.\10\ 
Currently, there are no AD orders on aluminum extrusions from Vietnam 
in the United States, and Commerce is not aware of the existence of any 
AD orders on aluminum extrusions from Vietnam in other countries. 
Therefore, we preliminarily find that there is no history of injurious 
dumping of aluminum extrusions from Vietnam; thus, this criterion is 
not met.
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    \10\ See, e.g., Certain Oil Country Tubular Goods from the 
People's Republic of China: Notice of Preliminary Determination of 
Sales at Less Than Fair Value, Affirmative Preliminary Determination 
of Critical Circumstances and Postponement of Final Determination, 
74 FR 59117, 59120 (November 17, 2009), unchanged in Certain Oil 
Country Tubular Goods from the People's Republic of China: Final 
Determination of Sales at Less Than Fair Value, Affirmative Final 
Determination of Critical Circumstances and Final Determination of 
Targeted Dumping, 75 FR 20335 (April 19, 2010).
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Section 733(e)(1)(A)(ii): 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, 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 ITC's 
preliminary injury determination.
    Commerce normally considers margins of 25 percent or more for EP 
sales and 15 percent or more for CEP

[[Page 46066]]

sales sufficient to impute importer knowledge of sales at LTFV.\11\ In 
this investigation, we preliminarily calculated a weighted-average 
dumping margin of 2.85 percent for East Asia Aluminum Company Limited 
(East Asia), the only respondent for which we calculated an individual 
rate, and we preliminarily assigned this same rate, i.e., 2.85 percent, 
to the non-individually investigated separate rate companies.\12\ 
Additionally, we preliminarily assigned a dumping margin of 41.84 
percent to the Vietnam-wide entity based on total adverse facts 
available (AFA).\13\
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    \11\ See, e.g., Carbon and Alloy Steel Wire Rod from Germany, 
Mexico, Moldova, Trinidad and Tobago, and Ukraine: Preliminary 
Determination of Critical Circumstances, 67 FR 6224, 6225 (February 
11, 2002) (Steel Wire Rod Preliminary), unchanged in Notice of Final 
Determination of Sales at Less Than Fair Value: Carbon and Certain 
Alloy Steel Wire Rod from Moldova, 67 FR 55790 (August 30, 2002) 
(Steel Wire Rod Final).
    \12\ See Preliminary Determination, 89 FR at 38076.
    \13\ Id.; see also Preliminary Determination PDM at 6.
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    Based on the foregoing margins, we preliminarily find no reasonable 
basis to believe or suspect that importers of subject merchandise from 
East Asia or the non-individually investigated separate rate companies 
knew, or should have known, that their exporters were selling subject 
merchandise at LTFV. Because this criterion is not met for East Asia or 
the non-examined separate rate companies, we preliminarily determine 
that critical circumstances do not exist for these companies.
    However, given the preliminary dumping margin for the Vietnam-wide 
entity (i.e., 41.84 percent) exceeds the threshold sufficient to impute 
knowledge of dumping, we preliminarily find that there is a reasonable 
basis to believe or suspect that producers/importers of subject 
merchandise from the Vietnam-wide entity knew, or should have known, 
that the exporters were selling subject merchandise at LTFV.
    In determining whether an importer knew or should have known that 
there was likely to be material injury caused by reason of such 
imports, Commerce normally will look to the preliminary injury 
determination of the ITC.\14\ If the ITC finds a reasonable indication 
of present material injury to the relevant U.S. industry, Commerce will 
determine that a reasonable basis exists to impute importer knowledge 
that material injury is likely by reason of such imports.\15\ Here, the 
ITC preliminarily found that there is ``reasonable indication'' of 
material injury to the domestic industry because of the imported 
subject merchandise from Vietnam.\16\ Therefore, the ITC's 
preliminarily injury determination is sufficient to impute knowledge to 
imports of the likelihood of material injury. Thus, Commerce determines 
that importers knew, or should have known, that there was likely to be 
material injury by reason of sales of aluminum extrusions by the 
Vietnam-wide entity.
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    \14\ See, e.g., Certain Potassium Phosphate Salts from the 
People's Republic of China: Preliminary Affirmative Determination of 
Critical Circumstances in the Antidumping Duty Investigation, 75 FR 
24572, 24573 (May 5, 2010).
    \15\ See, e.g., Steel Wire Rod Preliminary, 67 FR at 6225, 
unchanged in Steel Wire Rod Final.
    \16\ See ITC Preliminary Determination.
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    GameChange argues that it did not, and could not, know that its 
exporters were selling bearings at LTFV because the company did not 
notice any change in prices or other indicia of unfair trade after the 
filing of the petition, and, because the ITC's preliminary injury 
determination focused on aluminum extrusions, GameChange did not, or 
have reason to, know that imports of subject merchandise might be 
materially injuring the domestic industry.\17\ We preliminarily find 
that GameChange's claims about its individual experience are 
insufficient to rebut the objective evidence on the record indicating 
that importers of merchandise from the Vietnam-wide entity knew, or 
should have known, that there was likely to be material injury by 
reason of these sales of aluminum extrusions.\18\ Additionally, we note 
that GameChange claims that its bearing imports are not subject 
merchandise, and, arguendo, if that is correct, its experiences are 
irrelevant to our determination with respect to sales of subject 
merchandise.
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    \17\ See GameChange Response at 4.
    \18\ We preliminarily find GameChange's arguments regarding 
imputed knowledge moot with respect to East Asia and the non-
individually investigated separate rate companies.
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Section 733(e)(1)(B): Whether There Have Been Massive Imports of the 
Subject Merchandise Over a Relatively Short Period

    In determining whether there have been ``massive imports'' over a 
``relatively short period,'' pursuant to section 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''). 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.\19\ 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.''
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    \19\ See 19 CFR 351.206(i).
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    As discussed above, we preliminarily find critical circumstances do 
not exist for East Asia or the non-individually investigated separate 
rate companies; thus, whether there was a massive increase in imports 
from these companies between the base and comparison periods is moot.
    However, as explained in the Preliminary Determination, we 
preliminarily applied total AFA to the Vietnam-wide entity.\20\ 
Specifically, we determined that the use of facts available is 
warranted, pursuant to sections 776(a)(1) and (a)(2)(A)-(C) of the Act 
``{b{time} ecause necessary information is not available on the record 
and the Vietnam-wide entity, which includes the Vietnamese exporters 
and/or producers that did not respond to our {quantity and value{time}  
Questionnaire, withheld information requested by Commerce, failed to 
provide information in a timely manner, and significantly impeded this 
proceeding by not submitting the requested information.'' \21\ We also 
determined that an adverse inference is warranted pursuant to section 
776(b) of the Act because the Vietnam-wide entity was not cooperative. 
Thus, for the Vietnam-wide entity, we preliminarily determine, as AFA 
in accordance with section 776 of the Act, that there was a massive 
surge in imports between the base and comparison periods.\22\
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    \20\ See Preliminary Determination PDM at 6.
    \21\ Id.
    \22\ See Countervailing Duty Investigation of Tin Mill Products 
from the People's Republic of China: Preliminary Determination of 
Critical Circumstances, in Part, 88 FR 46738 (July 20, 2023).
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    Regarding whether imports were massive within a relatively short 
period of time, GameChange argues that we should analyze the volume of 
its imports of bearings that contain aluminum extrusions because 
GameChange did not import its bearings under the HTSUS subheadings for 
which the petitioners provided import data and, according to 
GameChange, its imports compete with finished products in the United 
States, not aluminum extrusions.
    GameChange also relies on Zhejiang Native Produce as support for 
its argument that Commerce is required to

[[Page 46067]]

make a critical circumstances determination specific to GameChange.\23\ 
However, in Zhejiang Native Produce, the U.S. Court of Appeals for the 
Federal Circuit's holding was limited to whether Commerce could impute 
knowledge of dumping when the price of imports complied with a 
suspension agreement that existed prior to the filing of the petition; 
there is no such suspension agreement at issue here nor any information 
that detracts from the record evidence that supports our usual 
practice.\24\
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    \23\ See GameChange Allegation at 5 (citing Zhejiang Native 
Produce, 432 F.3d at 1367).
    \24\ See Zhejiang Native Produce, 432 F.3d at 1367-68. We also 
note that, in Zhejiang Native Produce, there was no finding that a 
case-by-case basis needed to be company-specific rather than 
specific to the instant investigation.
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    Additionally, for the separate rate companies and East Asia, we 
preliminary determine that critical circumstances do not exist because 
section 733(e)(1)(A) is not met, as discussed above, and, thus, we do 
not reach the issue of whether imports were massive for these 
companies. Regarding the Vietnam-wide entity, as discussed above, we 
preliminarily find that imports are massive based on total AFA. Lastly, 
GameChange's argument again relies on its contention that its imported 
bearings are not subject merchandise. As noted above, if we were to 
assume arguendo, that GameChange's merchandise is not subject to the 
investigation, then its arguments are inapposite to the issue of 
whether imports of subject merchandise were massive during a relatively 
short period of time.

Preliminary Affirmative Determination of Critical Circumstances, in 
Part

    Based on the criteria and findings discussed above, we 
preliminarily determine that critical circumstances do not exist with 
respect to imports of aluminum extrusions from Vietnam produced or 
exported by East Asia and the non-individually examined separate rate 
companies that we preliminarily found qualified for a separate rate, 
and we preliminarily determine that critical circumstances do exist 
with respect to imports of aluminum extrusions from Vietnam with 
respect to the Vietnam-wide entity.

Final Critical Circumstances Determination

    We will make a final determination concerning critical 
circumstances in the final LTFV determination, which is currently 
scheduled for September 19, 2024.

Public Comment

    In the Preliminary Determination, Commerce stated that case briefs 
or other written comments may be submitted to the Assistant Secretary 
for Enforcement and Compliance and set a deadline for case briefs or 
other written comments on non-scope issues as no later than seven days 
after the date on which the final verification report is issued.\25\ 
Rebuttal briefs, limited to issues raised in case briefs, may be 
submitted no later than five days after the deadline for case 
briefs.\26\ All comments regarding this preliminary critical 
circumstances determination are subject to the same request for public, 
executive summaries in case and rebuttal briefs, as noted in the 
Preliminary Determination.\27\
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    \25\ See Preliminary Determination, 89 FR at 38076-77.
    \26\ Id.; see also 19 CFR 351.309(d)(1).
    \27\ See Preliminary Determination, 89 FR at 38076-77
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Suspension of Liquidation

    In accordance with section 733(e)(2)(A) of the Act, for the 
Vietnam-wide entity, we will direct U.S. Customs and Border Protection 
(CBP) to suspend liquidation of any unliquidated entries of subject 
merchandise from Vietnam entered, or withdrawn from warehouse for 
consumption, on or after February 7, 2024, which is 90 days prior to 
the date of publication of the 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 
Preliminary Determination. This suspension of liquidation will remain 
in effect until further notice.

U.S. International Trade Commission (ITC) Notification

    In accordance with section 733(f) of the Act, we will notify the 
ITC of this preliminary determination of critical circumstances.
    This determination is issued and published pursuant to sections 
733(f) and 777(i) of the Act and 19 CFR 351.206(c)(2)(ii).

    Dated: May 20, 2024.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations, performing the 
non-exclusive functions and duties of the Assistant Secretary for 
Enforcement and Compliance.
[FR Doc. 2024-11531 Filed 5-24-24; 8:45 am]
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