Notice2022-00633
Utility Scale Wind Towers From Indonesia: Notice of Court Decision Not in Harmony With the Final Determination of Countervailing Duty Investigation; Notice of Amended Final Determination; Notice of Revocation of Countervailing Duty Order
Primary source
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Published
January 13, 2022
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
On December 28, 2021, the U.S. Court of International Trade (CIT) issued its final judgment in PT. Kenertec Power System v. United States, Consol. Ct. No. 20-03687, sustaining the Department of Commerce (Commerce)'s remand redetermination pertaining to the countervailing duty (CVD) investigation of utility scale wind towers (wind towers) from Indonesia covering the period of investigation, January 1, 2018, through December 31, 2018. Commerce is notifying the public that the CIT's final judgment is not in harmony with Commerce's final determination in that investigation and that Commerce is amending the final determination with respect to the countervailable subsidy rate determined for PT. Kenertec Power System (Kenertec). Because the amended countervailable subsidy rate determined for Kenertec, the only individually-examined respondent in the investigation, is now de minimis, Commerce is hereby revoking the CVD order.
Full Text
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<title>Federal Register, Volume 87 Issue 9 (Thursday, January 13, 2022)</title>
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[Federal Register Volume 87, Number 9 (Thursday, January 13, 2022)]
[Notices]
[Pages 2137-2138]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-00633]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-560-834]
Utility Scale Wind Towers From Indonesia: Notice of Court
Decision Not in Harmony With the Final Determination of Countervailing
Duty Investigation; Notice of Amended Final Determination; Notice of
Revocation of Countervailing Duty Order
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On December 28, 2021, the U.S. Court of International Trade
(CIT) issued its final judgment in PT. Kenertec Power System v. United
States, Consol. Ct. No. 20-03687, sustaining the Department of Commerce
(Commerce)'s remand redetermination pertaining to the countervailing
duty (CVD) investigation of utility scale wind towers (wind towers)
from Indonesia covering the period of investigation, January 1, 2018,
through December 31, 2018. Commerce is notifying the public that the
CIT's final judgment is not in harmony with Commerce's final
determination in that investigation and that Commerce is amending the
final determination with respect to the countervailable subsidy rate
determined for PT. Kenertec Power System (Kenertec). Because the
amended countervailable subsidy rate determined for Kenertec, the only
individually-examined respondent in the investigation, is now de
minimis, Commerce is hereby revoking the CVD order.
DATES: Applicable January 7, 2022.
FOR FURTHER INFORMATION CONTACT: Alex Wood or Melissa Kinter, AD/CVD
Operations, Office II, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-1959 or (202) 482-1413,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On July 6, 2020, Commerce published its final determination in the
CVD investigation of wind towers from Indonesia. Commerce reached an
affirmative determination that Kenertec received countervailable
subsidies at a net countervailable subsidy rate of 5.90 percent.\1\
Commerce subsequently published the CVD order on wind towers from
Indonesia.\2\
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\1\ See Utility Scale Wind Towers from Indonesia: Final
Affirmative Countervailing Duty Determination and Final Affirmative
Determination of Critical Circumstances, 85 FR 40241 (July 6, 2020)
(Final Determination).
\2\ See Utility Scale Wind Towers from Canada, Indonesia, and
the Socialist Republic of Vietnam: Amended Final Affirmative
Countervailing Duty Determination and Countervailing Duty Orders, 85
FR 52543 (August 26, 2020).
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Kenertec and the Wind Tower Trade Coalition, the petitioner in the
investigation, appealed Commerce's Final Determination. On July 20,
2021, the CIT remanded the Final Determination to Commerce, directing
Commerce to address whether it improperly included an export subsidy in
its upstream subsidy calculation.\3\ In the final remand
redetermination, issued in August 2021, Commerce: (1) Determined that
the Rediscount Loan Program is an export subsidy; (2) concluded that
the export subsidy was improperly included in the upstream subsidy
calculation for Kenertec in the Final Determination; and (3) excluded
the export subsidy from the calculation.\4\ The changes made in the
Final Redetermination resulted in a de minimis net countervailable
subsidy rate of 0.85 percent for Kenertec. The CIT sustained Commerce's
Final Redetermination.\5\
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\3\ See PT. Kenertec Power System v. United States, Consol. Ct.
No. 20-03687, CM/ECF Doc. No. 38 (CIT July 20, 2021).
\4\ See Final Results of Redetermination Pursuant to Court
Remand, PT. Kenertec Power System & Wind Tower Trade Coalition v.
United States, Consol. Ct. No. 20-03687, dated August 18, 2021
(Final Redetermination), available at <a href="https://access.trade.gov/resources/remands/20-03687.pdf">https://access.trade.gov/resources/remands/20-03687.pdf</a>.
\5\ See PT. Kenertec Power System v. United States, Consol. Ct.
No. 20-03687, Slip Op. 21-175 (CIT December 28, 2021).
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Timken Notice
In its decision in Timken,\6\ as clarified by Diamond Sawblades,\7\
the Court of Appeals for the Federal Circuit held that, pursuant to
section 516A(c) and (e) of the Tariff Act of 1930, as amended (the
Act), Commerce must publish a notice of court decision that is not ``in
harmony'' with a Commerce determination and must suspend liquidation of
entries pending a ``conclusive'' court decision. The CIT's December 28,
2021, judgment constitutes a final decision of the CIT that is not in
harmony with Commerce's Final Determination. Thus, this notice is
published in fulfillment of the publication requirements of Timken.
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\6\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\7\ See Diamond Sawblades Manufacturers Coalition v. United
States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Determination
Because there is now a final court judgment, Commerce is amending
its Final Determination with respect to Kenertec as follows:
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Producer/exporter Percent ad valorem
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PT Kenertec Power System.................. 0.85 (de minimis).
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Revocation of Countervailing Duty Order
Pursuant to section 705(a)(3) of the Act, Commerce ``shall
disregard any countervailable subsidy that is de minimis as defined in
section 703(b)(4)'' of the Act. Furthermore, and pursuant to section
705(c)(2) of the Act, ``the investigation shall be terminated upon
publication of that negative determination'' and Commerce shall
``terminate the suspension of liquidation'' and ``release any bond or
other security and refund any cash deposit.'' As a result of this
amended final determination, Commerce is hereby revoking the CVD order
on wind towers from Indonesia because the revised CVD rate determined
for Kenertec, the only mandatory respondent, is now de minimis.\8\
Because the revised net countervailable subsidy rate determined for the
sole mandatory respondent, Kenertec, is de minimis, Commerce did not
determine an all-others rate in the Final Redetermination. Accordingly,
Commerce intends to issue instructions to U.S. Customs and Border
Protection (CBP) to release any bonds or other security and refund cash
deposits pertaining to any suspended entries pursuant to the order. As
a result of this revocation, Commerce will not initiate administrative
reviews of this order.
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\8\ See Final Redetermination.
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Cash Deposit Requirements and Liquidation of Suspended Entries
As a result of this amended final determination, Commerce is
revoking the CVD order on wind towers from Indonesia. Accordingly,
Commerce will instruct CBP to cease any collection of cash deposits of
estimated CVD duties
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on entries of wind towers from Indonesia and to release any bonds or
other security and refund cash deposits pertaining to any suspended
entries of wind towers from Indonesia. Although section 705(c)(2)(A) of
the Act instructs Commerce to terminate suspension of liquidation, we
note that, pursuant to Timken, the suspension of liquidation must
continue during the pendency of the appeals process. Thus, we will
instruct CBP at this time to: (1) Release any bond or other security
and refund any cash deposit made pursuant to the order as discussed
above; and (2) continue to suspend liquidation of all unliquidated
entries of wind towers from Indonesia at a cash deposit rate of 0.00
percent which are entered, or withdrawn from warehouse, for consumption
on or after January 7, 2022, which is ten days after the court's
decision, in accordance with section 516A of the Act.\9\ In the event
that the CIT's judgment affirming the Final Redetermination is not
appealed, or is appealed and upheld by the U.S. Court of Appeals for
the Federal Circuit, Commerce will instruct CBP to terminate the
suspension of liquidation and to liquidate those entries of subject
merchandise without regard to countervailing duties. Notwithstanding
the continued suspension pursuant to Timken described above, the CVD
order on wind towers from Indonesia is hereby revoked.
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\9\ See, e.g., Drill Pipe from the People's Republic of China:
Notice of Court Decision Not in Harmony with International Trade
Commission's Injury Determination, Revocation of Antidumping and
Countervailing Duty Orders Pursuant to Court Decision, and
Discontinuation of Countervailing Duty Administrative Review, 79 FR
78037, 78038 (December 29, 2014); and High Pressure Steel Cylinders
from the People's Republic of China: Notice of Court Decision Not in
Harmony With Final Determination in Less Than Fair Value
Investigation, Notice of Amended Final Determination Pursuant to
Court Decision, Notice of Revocation of Antidumping Duty Order in
Part, and Discontinuation of Fifth Antidumping Duty Administrative
Review, 82 FR 46758, 46760 (October 6, 2017).
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At this time, Commerce remains enjoined by CIT order during the
pendency of litigation, including any appeals, from liquidating entries
of wind towers from Indonesia that were produced and/or exported by
Kenertec and that were entered, or withdrawn from warehouse, during the
period December 13, 2019, through December 31, 2020, excluding entries
on or after April 11, 2020, through August 24, 2020. Pursuant to the
terms of the injunction, the enjoined entries of subject merchandise
will be liquidated in accordance with the final court decision in this
action, including all appeals, as provided in section 516A(e) of the
Act.
Notification to Interested Parties
This notice is issued and published in accordance with sections
516A(c) and (e) and 777(i)(1) of the Act.
Dated: January 7, 2022.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations.
[FR Doc. 2022-00633 Filed 1-12-22; 8:45 am]
BILLING CODE 3510-DS-P
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