Effective Date: December 24, 2012.
On August 2, 2012, the Department of Commerce (the “Department”) published its preliminary determination of sales at less than fair value (“LTFV”) and postponement of final determination in the antidumping investigation of utility scale wind towers (“wind towers”) from the People's Republic of China (“PRC”).
Based on an analysis of the comments received, the Department has made changes from the Preliminary Determination. The Department has determined that wind towers from the PRC are being, or are likely to be, sold in the United States at LTFV, as provided in section 735 of the Tariff Act of 1930, as amended (the “Act”). The final weighted-average dumping margins for this investigation are listed in the “Final Determination” section below.
FOR FURTHER INFORMATION CONTACT:
Lilit Astvatsatrian, Shawn Higgins, Thomas Martin, or Trisha Tran, AD/CVD Operations, Office 4, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-6412, (202) 482-0679, (202) 482-3936, or (202) 482-4852, respectively.
The Department published its Preliminary Determination on August 2, 2012.
Between August 13, 2012, and August 24, 2012, the Department conducted verifications of the mandatory respondents (i.e., Chengxi Shipyard Co., Ltd. (“CXS”) and Titan Wind Energy (Suzhou) Co., Ltd. (“Titan”)).
Between September 14, 2012, and September 24, 2012, CXS, Titan and the Wind Tower Trade Coalition (“Petitioner”)
submitted surrogate value (“SV”) and rebuttal SV comments.
On October 2, 2012, CXS, Titan and Petitioner submitted case briefs. On October 9, 2012, CXS, Titan, and Petitioner submitted rebuttal briefs.
On November 2, 2012, the Department held a hearing, which was requested by Petitioner on September 4, 2012.
Period of Investigation
The period of investigation (“POI”) is April 1, 2011, through September 30, 2011. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition, which was December 2012.
Extension of Final Determination Due to Government Closure During Hurricane Sandy
On October 31, 2012, the Department's Import Administration determined that the impact of the recent government closure during Hurricane Sandy would be best minimized by uniformly tolling all Import Administration deadlines for two days.
This determination applies to every proceeding before the Import Administration, including this investigation. The Department notes, however, that because the deadline of the final determination of this investigation was originally on December 15, 2012, which falls on a weekend, this deadline would have been automatically extended by two days until the following working day, Monday, December 17, 2012. Therefore, the two day extension of the deadlines due to government closure during Hurricane Sandy does not impact the deadline for the final determination of this investigation.
Analysis of Comments Received
All issues raised in the case briefs and rebuttal briefs by parties in this investigation are addressed in the Issues and Decision Memorandum.
A list of the issues which the parties raised and to which the Department responded in the Issues and Decision Memorandum is attached to this notice as Appendix I. The Issues and Decision Memorandum is a public document and is on file electronically via Import Administration's Antidumping and Countervailing Duty Centralized Electronic Service System (“IA ACCESS”). Access to IA ACCESS is available to registered users at http://iaaccess.trade.gov, and is available to all parties in the Central Records Unit, which is in room 7046 of the main Department of Commerce building. In addition, a complete version of the Issues and Decision Memorandum can be accessed directly on the internet at www.trade.gov/ia. The signed Issues and Decision Memorandum and the electronic versions of the Issues and Decision Memorandum are identical in content.
Changes Since the Preliminary Determination
Changes Applicable to Both Mandatory Respondents
- The Department recalculated SVs and surrogate financial ratios based on data from Thailand, which was selected as the surrogate country for the final determination.
- The Department used the unadjusted per-kg brokerage and handling rate for a 20-foot container to value brokerage and handling.
Changes Applicable to Only CXS
- The Department used Thai tariff sub-category 8544.60 to value CXS's bus bars.
- The Department used Ukrainian tariff sub-category 6306.12 to value CXS's tarpaulin.
- The Department excluded stainless steel round bars from CXS's normal value.
- The Department used the unadjusted per-kg international freight rate for a 40-foot container to value international freight.
- The Department has not valued CXS's river water using the SV for municipal water.
- The Department revised the distances reported by CXS to reflect the distances measured by the Department at verification.
- The Department made changes based on the minor corrections presented at verification.
Changes Applicable to Only Titan
- The Department applied Titan's reported market economy purchase price for winches.
- The Department accepted the allocated surcharge for shipping fixtures in Titan's gross unit price calculation.
- The Department made changes based on the minor corrections presented at verification.
Scope of the Investigation
The merchandise covered by this investigation are certain wind towers, whether or not tapered, and sections thereof. Certain wind towers are designed to support the nacelle and rotor blades in a wind turbine with a minimum rated electrical power generation capacity in excess of 100 kilowatts (“kW”) and with a minimum height of 50 meters measured from the base of the tower to the bottom of the nacelle (i.e., where the top of the tower and nacelle are joined) when fully assembled.
A wind tower section consists of, at a minimum, multiple steel plates rolled into cylindrical or conical shapes and welded together (or otherwise attached) to form a steel shell, regardless of coating, end-finish, painting, treatment, or method of manufacture, and with or without flanges, doors, or internal or external components (e.g., flooring/decking, ladders, lifts, electrical buss boxes, electrical cabling, conduit, cable harness for nacelle generator, interior lighting, tool and storage lockers) attached to the wind tower section. Several wind tower sections are normally required to form a completed wind tower.
Wind towers and sections thereof are included within the scope whether or not they are joined with nonsubject merchandise, such as nacelles or rotor blades, and whether or not they have internal or external components attached to the subject merchandise.
Specifically excluded from the scope are nacelles and rotor blades, regardless of whether they are attached to the wind tower. Also excluded are any internal or external components which are not attached to the wind towers or sections thereof.
Merchandise covered by the investigation is currently classified in the Harmonized Tariff System of the United States (“HTSUS”) under subheadings 7308.20.0020 
Prior to 2011, merchandise covered by the investigation was classified in the HTSUS under subheading 7308.20.0000 and may continue to be to some degree. While the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the investigation is dispositive.
The Department received comments regarding the scope of the investigation from Petitioner, CXS, and Titan. After analyzing the comments, the Department has made no changes to the scope of this investigation. For a complete discussion of this issue, see the Issues and Decision Memorandum at Comment 4.
As provided in section 782(i) of the Act, the Department verified the information submitted by CXS and Titan for use in the final determination.
The Department used standard verification procedures, including examination of relevant accounting and production records and original source documents provided by these respondents.
Non-Market Economy Country
The PRC has been treated as a non-market economy (“NME”) in every proceeding conducted by the Department. In accordance with section 771(18)(C)(i) of the Act, any determination that a foreign country is an NME shall remain in effect until revoked by the administering authority. The Department has not revoked the PRC's status as an NME and no party has challenged the designation of the PRC as an NME in this investigation. Therefore, the Department continues to treat the PRC as an NME for purposes of this final determination and, accordingly, applied the NME methodology.
In the Preliminary Determination, the Department found that Colombia, Indonesia, Peru, South Africa, Thailand, and Ukraine are (1) at a level of economic development comparable to that of the PRC and (2) significant producers of merchandise comparable to the merchandise under consideration.
From among these countries, the Department preliminarily selected Ukraine as the surrogate country because, in addition to being both economically comparable to the PRC and a significant producer of comparable merchandise, Ukraine provided SV information that was most specific to many factors of production (“FOPs”), including the most significant FOP reported by each respondent (i.e., steel plate).
After the Preliminary Determination, interested parties submitted financial statements from a Thai producer of identical merchandise as well as comprehensive, detailed SV information from Thailand. For the final determination, the Department has selected Thailand as the surrogate country because Thailand is: (1) At a level of economic development comparable to that of the PRC; (2) a significant producer of merchandise comparable to the merchandise under consideration; and (3) the country that provides the best available information to value FOPs using data that are specific, reliable, broad market averages, contemporaneous with the POI, and publicly available from a single surrogate country.
Specifically, the Department has found that Thai import data allows the Department to value each respondent's steel plate, which accounts for the largest portion of each company's normal value, more accurately than either the Ukrainian or South African data on the record of this investigation because the Thai data is most specific to the size and chemistry of the respondents' steel plate.
Also, Thailand provides a complete set of SVs (with only minor exceptions), including financial ratios from a surrogate company that produces identical merchandise.
Therefore, the Department has determined that Thailand, in addition to being at a level of economic development comparable to that of the PRC and a significant producer of merchandise comparable to wind towers, offers the best available SV information on the record of this investigation.
In proceedings involving NMEs, the Department maintains a rebuttable presumption that all companies within the NME are subject to government control and, therefore, should be assessed a single weighted-average dumping margin.
The Department's policy is to assign all exporters of merchandise under consideration that are in an NME this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.
The Department analyzes whether each entity exporting the merchandise under consideration is sufficiently independent under a test established in Sparklers 
and further developed in
According to this separate rate test, the Department will assign a separate rate in NME proceedings if a respondent can demonstrate the absence of both de jure and de facto government control over its export activities. If, however, the Department determines that a company is wholly foreign owned, then a separate rate analysis is not necessary to determine whether that company is independent from government control and eligible for a separate rate.
Companies Receiving a Separate Rate
In the Preliminary Determination, the Department found that Sinovel Wind Group Co., Ltd. (“Sinovel”),
Guodian United Power Technology Baoding Co., Ltd. (“Guodian”), CS Wind China Co., Ltd. and CS Wind Corporation (collectively, “CS Wind”), and the mandatory respondents demonstrated their eligibility for separate-rate status.
For the final determination, the Department continues to find that the evidence placed on the record of this investigation by Sinovel, Guodian, and the mandatory respondents demonstrate both a de jure and de facto absence of government control and, therefore, are eligible for separate-rate status. For further discussion of the separate rate analysis for CXS, see the Issues and Decision Memorandum at Comment 6. The Department also continues to find that the evidence placed on the record of this investigation by CS Wind demonstrates that it is wholly-owned by individuals and companies located in market economy countries. Therefore, the Department has granted CS Wind a separate rate in the final determination.
Companies Not Receiving a Separate Rate
In the Preliminary Determination, the Department did not grant a separate rate to AVIC International Renewable Energy Co. Ltd. (“AVIC”) because the company failed to submit a timely response to the Department's supplemental separate rate questionnaire and withdrew its participation in this AD investigation.
Consistent with the Preliminary Determination, the Department did not grant AVIC a separate rate in this final determination.
Margin for the Separate Rate Companies
Normally, the Department's practice is to assign to separate rate entities that were not individually examined a rate equal to the average of the rates calculated for the individually examined respondents, excluding any rates that are zero, de minimis, or based entirely on adverse facts available (“AFA”).
Consistent with this practice, the Department has assigned Sinovel, Guodian, and CS Wind a rate of 46.38 percent, which is equal to an average of the rates calculated for the mandatory respondents.
The PRC-wide Entity
The record indicates that, in addition to AVIC, there are other PRC exporters and/or producers of the merchandise under consideration during the POI that did not respond to the Department's requests for information. Specifically, the Department did not receive responses to its quantity and value questionnaire from over 30 PRC exporters and/or producers of merchandise under consideration that were named in the petition and to whom the Department issued the questionnaire. Because AVIC and these non-responsive PRC companies have not demonstrated that they are eligible for separate rate status, the Department considers them part of the PRC-wide entity.
Application of Facts Available and AFA
Section 776(a)(2) of the Act provides that, if an interested party (A) withholds information that has been requested by the Department, (B) fails to provide such information in a timely manner or in the form or manner requested, subject to subsections 782(c)(1) and (e) of the Act, (C) significantly impedes a proceeding under the antidumping statute, or (D) provides such information but the information cannot be verified, the Department shall, subject to subsection 782(d) of the Act, use facts otherwise available in reaching the applicable determination.
The Department has found that the PRC-wide entity withheld information requested by the Department, failed to provide information in a timely manner, and significantly impeded this proceeding by not submitting the requested information. The PRC-wide entity neither filed documents indicating it was having difficulty providing the information nor requested that it be allowed to submit the information in an alternate form. As a result, the Department has determined, pursuant to sections 776(a)(2)(A)-(C) of the Act and consistent with the Preliminary Determination, that it may use facts otherwise available to determine the rate for the PRC-wide entity.
Section 776(b) of the Act provides that the Department, in selecting from among the facts otherwise available, may use an inference that is adverse to the interests of a party if that party has failed to cooperate by not acting to the best of its ability to comply with a request for information. The Department has found that the PRC-wide entity's failure to provide the requested information constitutes circumstances under which it is reasonable to conclude that less than full cooperation has been shown.
Therefore, the Department has found, consistent with the Preliminary Determination, that the PRC-wide entity has failed to cooperate to the best of its ability to comply with requests for information and, consequently, the Department may employ an inference that is adverse to the PRC-wide entity in selecting from among the facts otherwise available.
Section 776(b) of the Act states that the Department, when employing an adverse inference, may rely upon information derived from the petition, the final determination from the LTFV investigation, a previous administrative review, or any other information placed on the record. In selecting a rate based on AFA, the Department selects a rate that is sufficiently adverse to ensure that the uncooperative party does not obtain a more favorable result by failing to cooperate than if it had fully cooperated. The Department's practice is to select, as an AFA rate, the higher of: (1) The highest dumping margin alleged in the petition, or (2) the highest calculated weighted-average dumping margin of any respondent in the investigation.
In this investigation, the petition dumping margin is 213.54 percent. This rate is higher than any of the weighted-average dumping margins calculated for the companies individually examined.
Corroboration of Information
Section 776(c) of the Act requires the Department to corroborate, to the extent practicable, secondary information used as facts available. Secondary information is defined as “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 of the Act concerning the subject merchandise.” 
The SAA clarifies that “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value.
The SAA also states that independent sources used to corroborate such evidence may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation.
To corroborate secondary information, the Department will, to the extent practicable, determine whether the information used has probative value by examining the reliability and relevance of the information.
In order to determine the probative value of the dumping margins in the petition for use as AFA for purposes of this final determination, the Department examined information on the record and found that it was unable to corroborate the margin contained in the petition. Therefore, for the final determination, the Department has assigned to the PRC-wide entity the rate of 70.63 percent, which is the highest transaction-specific dumping margin for a mandatory respondent.
It is unnecessary to corroborate this rate because it was obtained in the course of this investigation and, therefore, is not secondary information.
As announced in the Initiation Notice,
the Department has calculated combination rates for the respondents that are eligible for a separate rate in this investigation. This practice is described in Policy Bulletin 05.1.
The Department has determined that the following weighted-average dumping margins exist for the period April 1, 2011, through September 30, 2011:
|Chengxi Shipyard Co., Ltd.||Chengxi Shipyard Co., Ltd.||47.59|
|Titan Wind Energy (Suzhou) Co., Ltd||Titan (Lianyungang) Metal Product Co., Ltd.||44.99|
|Titan Wind Energy (Suzhou) Co., Ltd.||Titan Wind Energy (Suzhou) Co., Ltd.||44.99|
|CS Wind Corporation||CS Wind China Co., Ltd.||46.38|
|Guodian United Power Technology Baoding Co., Ltd||Guodian United Power Technology Baoding Co., Ltd||46.38|
|Sinovel Wind Group Co., Ltd.||Qiangsheng Wind Equipment Co., Ltd.||46.38|
In accordance with 19 CFR 351.224(b), the Department will disclose the calculations performed in this investigation to parties within five days of the date of publication of this notice in the Federal Register.
Continuation of Suspension of Liquidation
In accordance with section 735(c)(1)(B) of the Act, the Department will instruct U.S. Customs and Border Protection (“CBP”) to continue to suspend liquidation of all entries of wind towers from the PRC, as described in the “Scope of the Investigation” section, entered or withdrawn from warehouse for consumption on or after the date of publication of this notice in the Federal Register.
Further, the Department will instruct CBP to require a cash deposit equal to the weighted-average amount by which normal value exceeds U.S. price, adjusted where appropriate for export subsidies, as follows: (1) The separate rate for the exporter/producer combinations listed in the table above will be the rate the Department has determined in this final determination; (2) for all combinations of PRC exporters/producers of merchandise under consideration which have not received their own separate rate, the cash-deposit rate will be the rate for the PRC-wide entity; and (3) for all non-PRC exporters of merchandise under consideration which have not received their own separate rate, the cash-deposit rate will be the rate applicable to the PRC exporter/producer combination that supplied that non-PRC exporter. These cash deposit instructions will remain in effect until further notice.
International Trade Commission Notification
In accordance with section 735(d) of the Act, the Department has notified the International Trade Commission (“ITC”) of the final affirmative determination of sales at LTFV. In accordance with section 735(b)(2) of the Act, the ITC will determine, within 45 days, whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation, of the merchandise under consideration. If the ITC determines that such injury does exist, the Department will issue an antidumping duty order directing CBP to assess, upon further instruction by the Department, antidumping duties on all imports of the subject merchandise entered, or withdrawn from warehouse, for consumption on or after the effective date of the suspension of liquidation.
Notification Regarding Administrative Protective Order
This notice also serves as a reminder to the parties subject to administrative protective order (“APO”) of their responsibility concerning the disposition of propriety information disclosed under APO in accordance with 19 CFR 351.305. Timely notification of return or destruction of APO materials or conversion to judicial protective order is hereby requested. Failure to comply with the regulations and terms of an APO is a sanctionable violation.
This determination is issued and published in accordance with sections 735(d) and 777(i)(1) of the Act.
Dated: December 17, 2012.
Assistant Secretary for Import Administration.
Issues for Final Determination
Comment 1: Whether the Department Should Continue to Use Ukraine as the Surrogate Country
Comment 2: Whether the Department Should Revise its Financial Ratio Calculations
Comment 3: Whether the Department Should Revise the SV for Brokerage and Handling
Comment 4: Whether Base Rings Are Included in the Scope of the Investigation
Comment 5: Whether the Department Should Offset the Antidumping Cash Deposit Rate for Export Subsidies
Comment 6: Whether the Department Should Grant CXS a Separate Rate
Comment 7: Whether the Department Should Apply AFA to CXS
Comment 8: Whether the Department Should Revise the SV for CXS's Expanded Metal
Comment 9: Whether the Department Should Revise the SV for CXS's Bus Bars
Comment 10: Whether the Department Should Revise the SV for CXS's Tarpaulin
Comment 11: Whether the Department Should Value CXS's River Water Using the SV for Municipal Water
Comment 12: Whether the Department Should Exclude Stainless Steel Round Bars from CXS's Normal Value
Comment 13: Whether the Department Should Use CXS's Reported Market Economy Purchase Prices
Comment 14: Whether Titan Reported the Correct Number of Flanges
Comment 15: Whether the Department Should Use Titan's Reported Market Economy Purchase Price for Winches
Comment 16: Whether the Department Should Exclude the Packing FOPs Used To Make Shipping Fixtures
Comment 17: Whether the Department Should Grant Titan a By-Product Offset
[FR Doc. 2012-30950 Filed 12-21-12; 8:45 am]
BILLING CODE 3510-DS-P