Notice2024-11531
Aluminum Extrusions From the Socialist Republic of Vietnam: Preliminary Affirmative Determination of Critical Circumstances, in Part, in the Less-Than-Fair Value Investigation
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Published
May 28, 2024
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
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).
Full Text
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<title>Federal Register, Volume 89 Issue 103 (Tuesday, May 28, 2024)</title>
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[Federal Register Volume 89, Number 103 (Tuesday, May 28, 2024)]
[Notices]
[Pages 46064-46067]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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]
BILLING CODE 3510-DS-P
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