[Federal Register Volume 87, Number 9 (Thursday, January 13, 2022)]
[Notices]
[Pages 2137-2138]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[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 https://access.trade.gov/resources/remands/20-03687.pdf.
    \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

[[Page 2138]]

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