Sugar From Mexico: Amendment to the Agreement Suspending the Antidumping Duty Investigation, 3620-3623 [2020-00970]
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Federal Register / Vol. 85, No. 14 / Wednesday, January 22, 2020 / Notices
publication of the notice of final results
of administrative review for all
shipments of subject merchandise
entered, or withdrawn from warehouse,
for consumption on or after the
publication date of the final results of
this administrative review, as provided
for by section 751(a)(2)(C) of the Act: (1)
The cash deposit rate for each specific
company listed above will be equal to
the rate established in the final results
of this administrative review; (2) for
merchandise exported by producers or
exporters not covered in this review,
including the companies Commerce has
determined had no shipments in these
final results, but covered in a prior
segment of this proceeding, the cash
deposit rate will continue to be the
company-specific rate published for the
most recently completed segment in
which the company was reviewed; (3) if
the exporter is not a firm covered in this
review, a prior review, or the original
less-than-fair-value (LTFV)
investigation, but the producer is, then
the cash deposit rate will be the rate
established for the most recently
completed segment of this proceeding
for the producer of the subject
merchandise; and (4) the cash deposit
rate for all other producers or exporters
will continue to be 9.70 percent, the allothers rate established in the LTFV
investigation.8 These cash deposit
requirements, when imposed, shall
remain in effect until further notice.
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Notification to Importers
This notice serves as a final reminder
to importers of their responsibility
under 19 CFR 351.402(f)(2) to file a
certificate regarding the reimbursement
of antidumping duties prior to
liquidation of the relevant entries
during this POR. Failure to comply with
this requirement could result in
Commerce’s presumption that
reimbursement of antidumping duties
occurred and increase the subsequent
assessment of double antidumping
duties.
Notification to Interested Parties
Regarding Administrative Protective
Order
This notice also serves as the only
reminder to parties subject to
administrative protective order (APO) of
their responsibility concerning the
disposition of proprietary information
disclosed under APO in accordance
with 19 CFR 351.305(a)(3), which
continues to govern business
proprietary information in this segment
8 See Certain Circular Welded Carbon Steel Pipes
and Tubes from Taiwan: Antidumping Duty Order,
49 FR 19369 (May 7, 1984).
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of the proceeding. Timely written
notification of the return or destruction
of APO materials or conversion to
judicial protective order is hereby
requested. Failure to comply with the
regulations and the terms of an APO is
a sanctionable violation.
We are issuing and publishing this
notice in accordance with sections
751(a)(1) and 777(i)(1) of the Act and 19
CFR 351.213(h).
Dated: January 14, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and
Compliance.
[FR Doc. 2020–00951 Filed 1–21–20; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
International Trade Administration
[A–201–845]
Sugar From Mexico: Amendment to the
Agreement Suspending the
Antidumping Duty Investigation
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
DATES: Applicable January 15, 2020.
SUMMARY: The Department of Commerce
(Commerce) and a representative of the
signatory sugar producers/exporters
accounting for substantially all imports
of sugar from Mexico have signed an
amendment to the Agreement
Suspending the Antidumping Duty
Investigation on Sugar from Mexico (AD
Agreement). The amendment to the AD
Agreement modifies the definitions for
sugar from Mexico, revises the reference
prices for the applicable sugar from
Mexico, and provides for enhanced
monitoring and enforcement
mechanisms.
AGENCY:
FOR FURTHER INFORMATION CONTACT:
Sally C. Gannon or David Cordell at
(202) 482–0162 or (202) 482–0408,
respectively; Bilateral Agreements Unit,
Office of Policy, Enforcement and
Compliance, International Trade
Administration, U.S. Department of
Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
Background
On April 17, 2014, Commerce
initiated an antidumping duty
investigation under section 732 of the
Tariff Act of 1930, as amended (the Act),
to determine whether imports of sugar
from Mexico are being, or are likely to
be, sold in the United States at less than
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fair value (LTFV).1 On October 24, 2014,
Commerce preliminarily determined
that sugar from Mexico is being, or is
likely to be, sold in the United States at
LTFV, as provided in section 733 of the
Act, and postponed the final
determination in this investigation until
no later than 135 days after the date of
publication of the preliminary
determination in the Federal Register.2
Commerce and a representative of the
signatory producers/exporters
accounting for substantially all imports
of sugar from Mexico signed the AD
Agreement on December 19, 2014.3
On January 8, 2015, Imperial Sugar
Company (Imperial) and AmCane Sugar
LLC (AmCane) each notified Commerce
that they had petitioned the
International Trade Commission (ITC) to
conduct a review of the AD Agreement
under section 734(h) of the Act, to
determine whether the injurious effects
of the imports of the subject
merchandise are eliminated completely
by the AD Agreement. On March 24,
2015, in a unanimous vote, the ITC
found that the AD Agreement
eliminated completely the injurious
effects of imports of sugar from Mexico.4
As a result of the ITC’s determination,
the AD Agreement remained in effect,
and on March 27, 2015, Commerce, in
accordance with section 734(h)(3) of the
Act, instructed U.S. Customs and Border
Protection (CBP) to terminate the
suspension of liquidation of all entries
of sugar from Mexico and refund all
cash deposits.
Notwithstanding issuance of the AD
Agreement, pursuant to requests by
domestic interested parties, Commerce
continued its investigation and made an
affirmative final determination of sales
at LTFV.5 In its Final Determination,
Commerce calculated weighted-average
dumping margins of 40.48 percent for
Fondo de Empresas Expropiadas del
Sector Azucarero (FEESA), 42.14
percent for Ingenio Tala S.A. de C.V.
and certain affiliated sugar mills of
Grupo Azucarero Mexico S.A. de C.V.
(collectively, the GAM Group), and
1 See Sugar from Mexico: Initiation of
Antidumping Duty Investigation, 79 FR 22795
(April 24, 2014).
2 See Sugar from Mexico: Preliminary
Determination of Sales at Less Than Fair Value and
Postponement of Final Determination, 79 FR 65189
(November 3, 2014).
3 See Sugar From Mexico: Suspension of
Antidumping Investigation, 79 FR 78039 (December
29, 2014) (AD Agreement).
4 See Sugar from Mexico; Determinations, 80 FR
16426 (March 27, 2015).
5 See Sugar From Mexico: Continuation of
Antidumping and Countervailing Duty
Investigations, 80 FR 25278 (May 4, 2015); Sugar
From Mexico: Final Determination of Sales at Less
Than Fair Value, 80 FR 57341 (September 23, 2015)
(Final Determination).
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Federal Register / Vol. 85, No. 14 / Wednesday, January 22, 2020 / Notices
40.74 percent for all other Mexican
producers/exporters. Commerce stated
in its Final Determination that it would
‘‘not instruct CBP to suspend
liquidation or collect cash deposits
calculated herein unless the AD
Suspension Agreement is terminated
and the Department issues an
antidumping duty order,’’ and, in that
case, it would ‘‘instruct CBP to suspend
liquidation and require a cash deposit
equal to the weighted-average amount
by which normal value exceeds U.S.
price,’’ and adjusted for export
subsidies.6 The ITC subsequently made
an affirmative determination of material
injury to an industry in the United
States by reason of imports of sugar
from Mexico.7
In June 2016, Commerce and
representatives of the Mexican sugar
producers/exporters began consultations
regarding the AD Agreement to address
concerns raised by the domestic
industry and to ensure that the AD
Agreement continued to meet all of the
statutory requirements for a suspension
agreement, e.g., that suspension of the
investigation is in the public interest,
including the availability of supplies of
sugar in the U.S. market, and that
effective monitoring is practicable. The
consultations resulted in Commerce and
a representative of the signatory
producers/exporters accounting for
substantially all imports of sugar from
Mexico initialing a draft amendment to
the AD Agreement on June 14, 2017,
and subsequently signing a finalized
amendment on June 30, 2017.8
CSC Sugar LLC (CSC Sugar)
challenged Commerce’s determination
to amend the AD Agreement by
contending that Commerce did not meet
its obligation to file a complete
administrative record.9 Specifically,
CSC Sugar argued that Commerce failed
to memorialize and include in the
record ex parte communications
between Commerce officials and
interested parties (including the
domestic sugar industry and
representatives of Mexico), as required
by section 777(a)(3) of the Act.10 The
CIT agreed with CSC Sugar and ordered
Commerce to supplement the
administrative record with any ex parte
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6 Final
Determination, 80 FR at 57342.
Sugar From Mexico, 80 FR 70833
(November 16, 2015) (Final ITC Determination).
8 See Sugar From Mexico: Amendment to the
Agreement Suspending the Antidumping Duty
Investigation, 82 FR 31945 (July 11, 2017) (2017 AD
Amendment).
9 See CSC Sugar LLC v. United States, Ct. No. 17–
00215, Slip Op. 19–132 (CIT October 18, 2019) (CSC
Sugar II) at 4.
10 Id.
7 See
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communications regarding the 2017 AD
Amendment.11
Ultimately, the CIT found that
Commerce’s failure to follow the
recordkeeping requirements of Section
777 of the Act cannot be described as
‘‘harmless.’’ 12 The CIT found that this
recordkeeping failure substantially
prejudiced CSC Sugar.13 On that basis,
the CIT stated that the 2017 AD
Amendment must be vacated.14
Consistent with CIT’s ruling in CSC
Sugar II, on December 6, 2019,
Commerce terminated the 2017 AD
Amendment prospectively—and
accordingly, as of December 7, 2019, the
unamended AD Agreement has been in
force and effective, and the 2017 AD
Amendment has had no force or effect.15
On November 4, 2019, Commerce
formally opened consultations to
renegotiate an amendment to the AD
Agreement.16 On November 6, 2019,
Commerce released a proposed
amendment to the AD Agreement and
invited parties to provide written
comments on the proposed amendment
by November 12, 2019.17 On December
4, 2019, Commerce and a representative
of the signatory producers/exporters
initialed a draft amendment to the AD
Agreement, and Commerce released
corresponding draft statutory
memoranda.18 Interested parties were
invited to provide comments on the
draft amendment and draft memoranda
by December 16, 2019.
Scope of Agreement
See Section I, Product Coverage, of
the AD Agreement.
11 Id. (citing CSC Sugar LLC v. United States, 317
F. Supp. 3d 1322, 1326 (CIT 2018)).
12 Id. at 11–12.
13 Id. at 12.
14 See Sugar From Mexico: Notice of Court
Decision Regarding Amendment to the Agreement
Suspending the Antidumping Duty Investigation, 84
FR 58129 (October 30, 2019).
15 See Sugar From Mexico: Notice of Termination
of Amendment to the Agreement Suspending the
Antidumping Duty Investigation, 84 FR 67711,
67712 (December 11, 2019).
16 See Letter to Ca
´ mara Nacional de Las Industrias
Azucarera y Alcoholera from P. Lee Smith, Deputy
Assistant Secretary for Policy & Negotiations,
‘‘Consultations on Potential Amendment to the
Agreement Suspending the Antidumping Duty
Investigation on Sugar from Mexico’’ (November 4,
2019).
17 See Letter to All Interested Parties from P. Lee
Smith, Deputy Assistant Secretary for Policy &
Negotiations, ‘‘Release of Draft Amendment to the
Agreement Suspending the Countervailing Duty
Investigation on Sugar from Mexico’’ (November 6,
2019).
18 See Letter to All Interested Parties from Sally
C. Gannon, Director for Bilateral Agreements, ‘‘Draft
Amendment to the Agreement Suspending the
Antidumping Duty Investigation on Sugar from
Mexico and Draft Statutory Memoranda’’ (December
4, 2019).
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Analysis of Comments Received
We received comments on the draft
amendment and draft statutory
memoranda from CSC Sugar; the
petitioners, American Sugar Coalition
and its members; 19 Imperial Sugar
Company; Ca´mara Nacional de Las
Industrias Azucarera y Alcoholera
(Ca´mara); the Sugar Users Association
(SUA); the International Sugar Trade
Coalition, Inc.; and the Corn Refiners
Association. In reaching a final
amendment to the AD Agreement,
Commerce has taken into account all
comments submitted on the record of
the suspension agreement proceeding
and has made changes, where
warranted, to the December 4, 2019
draft AD amendment based upon those
comments.
Amendment to AD Agreement
Commerce consulted with the
Mexican sugar producers/exporters and
domestic interested parties and has
considered the comments submitted by
interested parties with respect to the
draft amendment to the AD Agreement.
On January 15, 2020, after consideration
of the interested party comments
received, Commerce and a
representative of sugar producers/
exporters accounting for substantially
all imports of sugar from Mexico, signed
a finalized amendment to the AD
Agreement. The 2020 Amendment, as
integrated with the AD Agreement (the
amended AD Agreement), allows for
exports of Mexican sugar to the United
States in accordance with the collective
terms therein.
In accordance with section 734(c) of
the Act, we have determined that
extraordinary circumstances, as defined
by section 734(c)(2)(A) of the Act, exist
with respect to the amended AD
Agreement. We have also determined
that the amended AD Agreement will
eliminate completely the injurious effect
of exports to the United States of the
subject merchandise and prevent the
suppression or undercutting of price
levels of domestic sugar by imports of
that merchandise from Mexico, as
required by section 734(c)(1) of the Act.
We have also determined that the
amended AD Agreement is in the public
interest and can be monitored
effectively, as required under section
734(d) of the Act.
For the reasons outlined above, we
find that the amended AD Agreement
19 The petitioners are the American Sugar
Coalition and its individual members: American
Sugar Cane League, American Sugar Refining, Inc.,
American Sugarbeet Growers Association, Florida
Sugar Cane League, Rio Grande Valley Sugar
Growers, Inc., Sugar Cane Growers Cooperative of
Florida, and United States Beet Sugar Association.
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Federal Register / Vol. 85, No. 14 / Wednesday, January 22, 2020 / Notices
meets the criteria of section 734(c) and
(d) of the Act.
The terms and conditions of the
amended AD Agreement, signed on
January 15, 2020, are set forth in the
2020 Amendment to the AD Agreement,
which is attached in Annex 1 to this
notice.
Administrative Protective Order Access
The administrative protective order
(APO) Commerce granted in the
suspension agreement segment of this
proceeding remains in place and
effective for the amended AD
Agreement. All new parties requesting
access to business proprietary
information submitted during the
administration of the amended AD
Agreement, under the APO currently in
effect, must submit an APO application
in accordance with the Commerce’s
regulations currently in effect.20
We are issuing and publishing this
notice in accordance with section
734(f)(1)(A) of the Act and 19 CFR
351.208(g)(2).
Dated: January 15, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and
Compliance.
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Annex 1: Amendment to the Agreement
Suspending the Antidumping Duty
Investigation on Sugar From Mexico
The Agreement Suspending the
Antidumping Duty Investigation on Sugar
from Mexico (Agreement) signed by the
signatory producers and exporters of Sugar
from Mexico (individually, Signatory;
collectively, Signatories) and the United
States Department of Commerce (Commerce)
on December 19, 2014, is amended, as set
forth below (Amendment).
If a provision of the Agreement conflicts
with a provision of this Amendment, the
provision of the Amendment shall supersede
the provision of the Agreement to the extent
of the conflict. All other provisions of the
Agreement and their applicability continue
with full force.
Commerce and the Signatories hereby
agree as follows:
Section II (‘‘Definitions’’) is amended as
follows:
Section II.C is replaced with:
‘‘Effective Date of the Agreement’’ means
the date on which Commerce and the
Signatories signed the Agreement.
Additionally, the ‘‘Effective Date of the
Amendment’’ means the date on which
Commerce and the Signatories sign the
Amendment.
Section II.F is replaced with:
‘‘Other Sugar’’ means
a. Sugar at a polarity of less than 99.2, as
produced and measured on a dry basis;
b. Where such Sugar is Additional U.S.
Needs Sugar, as defined in Section II.O,
20 See section 777(c)(1) of the Act; 19 CFR
351.103, 351.304, 351.305, and 351.306.
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Sugar at a polarity of less than 99.5, as
produced and measured on a dry basis; and,
c. In the event that Section V.B.4.d of the
Agreement Suspending the Countervailing
Duty Investigation on Sugar from Mexico
(CVD Agreement) is exercised, Sugar at a
polarity specified by USDA that is below
99.5, as produced and measured on a dry
basis.
Such Other Sugar must be exported to the
United States loaded in bulk and freely
flowing (i.e., not in a container, tote, bag or
otherwise packaged) into the hold(s) of an
ocean-going vessel. To be considered as
Other Sugar, if Sugar leaves the Mexican mill
in a container, tote, bag or other package (i.e.,
is not freely flowing), it must be emptied
from the container, tote, bag or other package
into the hold of the ocean-going vessel for
exportation. All other exports of Sugar from
Mexico that are not transported in bulk and
freely flowing in the hold(s) of an oceangoing vessel will be considered to be Refined
Sugar for purposes of the Reference Prices,
regardless of the polarity of that Sugar.
Section II.H is replaced with:
‘‘Refined Sugar’’ means
a. Sugar at a polarity of 99.2 and above, as
produced and measured on a dry basis;
b. Sugar considered to be Refined Sugar
under Section II.F;
c. Where such Sugar is Additional U.S.
Needs Sugar as defined in Section II.O,
Sugar at a polarity of 99.5 and above, as
produced and measured on a dry basis; and
d. In the event that Section V.B.4.d of the
CVD Agreement is exercised, Sugar at a
polarity specified by USDA that is 99.5 or
above, as produced and measured on a dry
basis.
New Section II.N is added as follows:
‘‘Intermediary Customer’’ means trader,
processor, or other reseller located outside of
the United States who sells Sugar to an
unaffiliated customer in the United States.
New Section II.O is added as follows:
‘‘Additional U.S. Needs Sugar’’ means the
quantity of Sugar allowed to be exported,
over and above the Export Limit calculated
under Section V.B.3 of the CVD Agreement,
to fill a need identified by USDA in the U.S.
market for a particular type and quantity of
Sugar, and offered to Mexico pursuant to
Section V.B.4.c of the amended CVD
Agreement.
Section VII (‘‘Monitoring of the
Agreement’’) is amended as follows:
Section VII.B (‘‘Compliance Monitoring’’)
is amended as follows:
Section VII.B.4—an additional sentence as
follows is added to the end of paragraph 4:
Commerce may verify polarity testing
practices at any Mexican mill and request
supporting documentation for polarity test
results.
Section VII.C (‘‘Shipping and Other
Arrangements’’) is amended as follows:
Section VII.C.4 is replaced with the
following, with the sentence in italics being
added to the language:
4. Not later than 30 days after the end of
each quarter, each Signatory will submit a
written statement to Commerce certifying
that all sales during the most recently
completed quarter were at net prices, after
rebates, discounts, or other adjustments, at or
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above the Reference Prices in effect and were
not part of or related to any act or practice
which would have the effect of hiding the
real price of the Sugar being sold. Further,
each Signatory will certify in this same
statement that all sales made during the
relevant quarter were not part of or related
to any bundling arrangement, discounts/free
goods/financing package, swap or other
exchange where such arrangement is
designed to circumvent the basis of the
Agreement. As part of the certification, each
Signatory will submit a listing of the total
quantity of Other Sugar and Refined Sugar
that was exported during each quarter.
Each Signatory that did not export Sugar to
the United States during any given quarter
will submit a written statement to Commerce
certifying that it made no sales to the United
States during the most recently completed
quarter. Each Signatory agrees to permit full
verification of its certification as Commerce
deems necessary. Failure to provide a
quarterly certification may be considered a
Violation of the Agreement.
Section VII.C.5 is added as follows:
5. For each sale made by a Signatory to an
Intermediary Customer, the Signatory shall
incorporate into its sales contract with the
Intermediary Customer the obligation that
such customers will abide by the terms of the
Agreement, including selling the Sugar from
Mexico to the first downstream unaffiliated
U.S. customer in accordance with the terms
of the Agreement. Further, for each sale made
by a Signatory to an Intermediary Customer,
the Signatory shall incorporate into its sales
contract with the Intermediary Customer a
provision requiring the Intermediary
Customer to provide Commerce with all sales
and other related information Commerce
requests.
Further, Signatories and Intermediary
Customers must retain evidence in their files
to document that these contractual
obligations were implemented. Commerce
retains its authority to request the Signatory
and/or Intermediary Customer to provide
such documentation, and Commerce may
verify such documentation. Where a
Signatory does not have access to the
documentation but has obligated the
Intermediary Customer to provide it to
Commerce, Commerce will request the
Intermediary Customer to provide the
documentation. Failure by a Signatory and/
or Intermediary Customer to provide
requested documentation may be considered
a Violation under Section VIII of the
Agreement.
Section VII.C.6 is added as follows:
6. Other Sugar may enter the Customs
territory of the United States if the following
conditions are met:
Exporters of Other Sugar are required to
ensure, through inclusion of obligations in
their sales contracts or otherwise, that
importers of record of such Other Sugar agree
to ensure that Other Sugar is tested for
polarity by a laboratory approved by U.S.
Customs and Border Protection (CBP) upon
entry into the United States, with samples
drawn in accordance with CBP standards,
and that the importers of record agree to
report the polarity test results for each entry
to Commerce within 30 days of entry. Such
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Federal Register / Vol. 85, No. 14 / Wednesday, January 22, 2020 / Notices
polarity test reports must be filed on the
official records of Commerce for both this
Agreement and the CVD Agreement. For
clarity, sampling will be done in accordance
with CBP standards (e.g., CBP Directive No.
3820–001B), or its successor directive as
agreed by Commerce and the Signatories,
including the CBP requirement that the
polarity level of an entry will be the average
of the samples from that entry.
Commerce will request that CBP inform the
importing public of the requirements for
importation of Other Sugar set forth in this
sub-section.
Section VII.C.7 is added as follows:
7. Penalties for Non-Compliance with
Section VII.C.6:
a. Where Commerce finds that exporters
and importers of record of Other Sugar are
not complying with Section VII.C.6,
Commerce may consider this a Violation
under Section VIII.D of the Agreement.
b. If Commerce finds that issues with
meeting the polarity requirements of the
Agreement as required by Sections II.F, II.H,
VII.C.6 and Appendix I continue to arise,
Commerce can at any time terminate the
Agreement under Section X.B. Apart from
termination, Commerce may take additional
steps to ensure compliance with the terms of
this Agreement, including action under
Section VIII.B.4 of the CVD Agreement.
Section VIII (‘‘Violations of the
Agreement’’) is amended as follows:
Section VIII.D is amended by adding new
paragraphs 3 and 4, and moving paragraph 3
to paragraph 5:
D.3 Failure by Signatories and
Intermediary Customers to provide the
required documentation specified in Section
VII.C.5.
D.4 Failure by Signatories and importers of
record to comply with the requirements
under Section VII.C.6.
Appendix I is amended as follows:
At Appendix I, the following will be
changed:
The FOB plant Reference Price for Refined
Sugar is $0.2800 per pound commercial
value (whether freely flowing or in totes
weighing one (1) MT or greater as the sugar
leaves the mill), as produced and measured
on a dry basis.
The FOB plant Reference Price for Other
Sugar is $0.2300 per pound commercial
value (whether freely flowing or in totes
weighing one (1) MT or greater as the sugar
leaves the mill), as produced and measured
on a dry basis.
In addition, the following clause will be
added to Appendix I when referencing the
Reference Prices.
Mexican Signatory producers/exporters
must ensure that the delivered sales price for
all Sugar from Mexico exported to the United
States must include all expenses, e.g.,
transportation, de-bagging, warehousing,
handling, and packaging charges, in excess of
the FOB plant Reference Price. As specified
in Sections VII.B.1 and VII.B.2 of the
Agreement, Commerce has the authority to
request sales information, and to verify such
information, which demonstrates compliance
with the Reference Prices and terms of the
Agreement.
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Jeffrey I. Kessler,
Assistant Secretary for Enforcement and
Compliance, U.S. Department of
Commerce
lllllllllllllllllllll
Date
The following party hereby certifies that
the members of the Mexican sugar industry
agree to abide by all terms of the Amendment
to the Agreement:
lllllllllllllllllllll
Juan Cortina Gallardo,
President of the Board, Ca´mara Nacional de
Las Industrias Azucarera y Alcoholera
(Mexican Sugar Chamber)
lllllllllllllllllllll
Date
[FR Doc. 2020–00970 Filed 1–21–20; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
National Oceanic and Atmospheric
Administration
[RTID 0648–XR044]
Takes of Marine Mammals Incidental to
Specified Activities; Taking Marine
Mammals Incidental to the Old Sitka
Dock North Dolphins Expansion
Project in Sitka, Alaska
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notice; proposed incidental
harassment authorization; request for
comments on proposed authorization
and possible renewal.
AGENCY:
NMFS has received a request
from Halibut Point Marine Services,
LLC (HPMS) for authorization to take
marine mammals incidental to the Old
Sitka Dock North Dolphins Expansion
Project in Sitka, Alaska. Pursuant to the
Marine Mammal Protection Act
(MMPA), NMFS is requesting comments
on its proposal to issue an incidental
harassment authorization (IHA) to
incidentally take marine mammals
during the specified activities. NMFS is
also requesting comments on a possible
one-year renewal that could be issued
under certain circumstances and if all
requirements are met, as described in
Request for Public Comments at the end
of this notice. NMFS will consider
public comments prior to making any
final decision on the issuance of the
requested MMPA authorizations and
agency responses will be summarized in
the final notice of our decision.
DATES: Comments and information must
be received no later than February 21,
2020.
ADDRESSES: Comments should be
addressed to Jolie Harrison, Chief,
SUMMARY:
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3623
Permits and Conservation Division,
Office of Protected Resources, National
Marine Fisheries Service. Physical
comments should be sent to 1315 EastWest Highway, Silver Spring, MD 20910
and electronic comments should be sent
to ITP.davis@noaa.gov.
Instructions: NMFS is not responsible
for comments sent by any other method,
to any other address or individual, or
received after the end of the comment
period. Comments received
electronically, including all
attachments, must not exceed a 25megabyte file size. Attachments to
electronic comments will be accepted in
Microsoft Word or Excel or Adobe PDF
file formats only. All comments
received are a part of the public record
and will generally be posted online at
https://www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act without
change. All personal identifying
information (e.g., name, address)
voluntarily submitted by the commenter
may be publicly accessible. Do not
submit confidential business
information or otherwise sensitive or
protected information.
FOR FURTHER INFORMATION CONTACT:
Leah Davis, Office of Protected
Resources, NMFS, (301) 427–8401.
Electronic copies of the application and
supporting documents, as well as a list
of the references cited in this document,
may be obtained online at: https://
www.fisheries.noaa.gov/permit/
incidental-take-authorizations-undermarine-mammal-protection-act. In case
of problems accessing these documents,
please call the contact listed above.
SUPPLEMENTARY INFORMATION:
Background
The MMPA prohibits the ‘‘take’’ of
marine mammals, with certain
exceptions. Sections 101(a)(5)(A) and
(D) of the MMPA (16 U.S.C. 1361 et
seq.) direct the Secretary of Commerce
(as delegated to NMFS) to allow, upon
request, the incidental, but not
intentional, taking of small numbers of
marine mammals by U.S. citizens who
engage in a specified activity (other than
commercial fishing) within a specified
geographical region if certain findings
are made and either regulations are
issued or, if the taking is limited to
harassment, a notice of a proposed
incidental take authorization may be
provided to the public for review.
Authorization for incidental takings
shall be granted if NMFS finds that the
taking will have a negligible impact on
the species or stock(s) and will not have
an unmitigable adverse impact on the
availability of the species or stock(s) for
E:\FR\FM\22JAN1.SGM
22JAN1
]]>Agencies
[Federal Register Volume 85, Number 14 (Wednesday, January 22, 2020)]
[Notices]
[Pages 3620-3623]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00970]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-845]
Sugar From Mexico: Amendment to the Agreement Suspending the
Antidumping Duty Investigation
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
DATES: Applicable January 15, 2020.
SUMMARY: The Department of Commerce (Commerce) and a representative of
the signatory sugar producers/exporters accounting for substantially
all imports of sugar from Mexico have signed an amendment to the
Agreement Suspending the Antidumping Duty Investigation on Sugar from
Mexico (AD Agreement). The amendment to the AD Agreement modifies the
definitions for sugar from Mexico, revises the reference prices for the
applicable sugar from Mexico, and provides for enhanced monitoring and
enforcement mechanisms.
FOR FURTHER INFORMATION CONTACT: Sally C. Gannon or David Cordell at
(202) 482-0162 or (202) 482-0408, respectively; Bilateral Agreements
Unit, Office of Policy, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
Background
On April 17, 2014, Commerce initiated an antidumping duty
investigation under section 732 of the Tariff Act of 1930, as amended
(the Act), to determine whether imports of sugar from Mexico are being,
or are likely to be, sold in the United States at less than fair value
(LTFV).\1\ On October 24, 2014, Commerce preliminarily determined that
sugar from Mexico is being, or is likely to be, sold in the United
States at LTFV, as provided in section 733 of the Act, and postponed
the final determination in this investigation until no later than 135
days after the date of publication of the preliminary determination in
the Federal Register.\2\
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\1\ See Sugar from Mexico: Initiation of Antidumping Duty
Investigation, 79 FR 22795 (April 24, 2014).
\2\ See Sugar from Mexico: Preliminary Determination of Sales at
Less Than Fair Value and Postponement of Final Determination, 79 FR
65189 (November 3, 2014).
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Commerce and a representative of the signatory producers/exporters
accounting for substantially all imports of sugar from Mexico signed
the AD Agreement on December 19, 2014.\3\
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\3\ See Sugar From Mexico: Suspension of Antidumping
Investigation, 79 FR 78039 (December 29, 2014) (AD Agreement).
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On January 8, 2015, Imperial Sugar Company (Imperial) and AmCane
Sugar LLC (AmCane) each notified Commerce that they had petitioned the
International Trade Commission (ITC) to conduct a review of the AD
Agreement under section 734(h) of the Act, to determine whether the
injurious effects of the imports of the subject merchandise are
eliminated completely by the AD Agreement. On March 24, 2015, in a
unanimous vote, the ITC found that the AD Agreement eliminated
completely the injurious effects of imports of sugar from Mexico.\4\ As
a result of the ITC's determination, the AD Agreement remained in
effect, and on March 27, 2015, Commerce, in accordance with section
734(h)(3) of the Act, instructed U.S. Customs and Border Protection
(CBP) to terminate the suspension of liquidation of all entries of
sugar from Mexico and refund all cash deposits.
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\4\ See Sugar from Mexico; Determinations, 80 FR 16426 (March
27, 2015).
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Notwithstanding issuance of the AD Agreement, pursuant to requests
by domestic interested parties, Commerce continued its investigation
and made an affirmative final determination of sales at LTFV.\5\ In its
Final Determination, Commerce calculated weighted-average dumping
margins of 40.48 percent for Fondo de Empresas Expropiadas del Sector
Azucarero (FEESA), 42.14 percent for Ingenio Tala S.A. de C.V. and
certain affiliated sugar mills of Grupo Azucarero Mexico S.A. de C.V.
(collectively, the GAM Group), and
[[Page 3621]]
40.74 percent for all other Mexican producers/exporters. Commerce
stated in its Final Determination that it would ``not instruct CBP to
suspend liquidation or collect cash deposits calculated herein unless
the AD Suspension Agreement is terminated and the Department issues an
antidumping duty order,'' and, in that case, it would ``instruct CBP to
suspend liquidation and require a cash deposit equal to the weighted-
average amount by which normal value exceeds U.S. price,'' and adjusted
for export subsidies.\6\ The ITC subsequently made an affirmative
determination of material injury to an industry in the United States by
reason of imports of sugar from Mexico.\7\
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\5\ See Sugar From Mexico: Continuation of Antidumping and
Countervailing Duty Investigations, 80 FR 25278 (May 4, 2015); Sugar
From Mexico: Final Determination of Sales at Less Than Fair Value,
80 FR 57341 (September 23, 2015) (Final Determination).
\6\ Final Determination, 80 FR at 57342.
\7\ See Sugar From Mexico, 80 FR 70833 (November 16, 2015)
(Final ITC Determination).
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In June 2016, Commerce and representatives of the Mexican sugar
producers/exporters began consultations regarding the AD Agreement to
address concerns raised by the domestic industry and to ensure that the
AD Agreement continued to meet all of the statutory requirements for a
suspension agreement, e.g., that suspension of the investigation is in
the public interest, including the availability of supplies of sugar in
the U.S. market, and that effective monitoring is practicable. The
consultations resulted in Commerce and a representative of the
signatory producers/exporters accounting for substantially all imports
of sugar from Mexico initialing a draft amendment to the AD Agreement
on June 14, 2017, and subsequently signing a finalized amendment on
June 30, 2017.\8\
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\8\ See Sugar From Mexico: Amendment to the Agreement Suspending
the Antidumping Duty Investigation, 82 FR 31945 (July 11, 2017)
(2017 AD Amendment).
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CSC Sugar LLC (CSC Sugar) challenged Commerce's determination to
amend the AD Agreement by contending that Commerce did not meet its
obligation to file a complete administrative record.\9\ Specifically,
CSC Sugar argued that Commerce failed to memorialize and include in the
record ex parte communications between Commerce officials and
interested parties (including the domestic sugar industry and
representatives of Mexico), as required by section 777(a)(3) of the
Act.\10\ The CIT agreed with CSC Sugar and ordered Commerce to
supplement the administrative record with any ex parte communications
regarding the 2017 AD Amendment.\11\
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\9\ See CSC Sugar LLC v. United States, Ct. No. 17-00215, Slip
Op. 19-132 (CIT October 18, 2019) (CSC Sugar II) at 4.
\10\ Id.
\11\ Id. (citing CSC Sugar LLC v. United States, 317 F. Supp. 3d
1322, 1326 (CIT 2018)).
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Ultimately, the CIT found that Commerce's failure to follow the
recordkeeping requirements of Section 777 of the Act cannot be
described as ``harmless.'' \12\ The CIT found that this recordkeeping
failure substantially prejudiced CSC Sugar.\13\ On that basis, the CIT
stated that the 2017 AD Amendment must be vacated.\14\ Consistent with
CIT's ruling in CSC Sugar II, on December 6, 2019, Commerce terminated
the 2017 AD Amendment prospectively--and accordingly, as of December 7,
2019, the unamended AD Agreement has been in force and effective, and
the 2017 AD Amendment has had no force or effect.\15\
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\12\ Id. at 11-12.
\13\ Id. at 12.
\14\ See Sugar From Mexico: Notice of Court Decision Regarding
Amendment to the Agreement Suspending the Antidumping Duty
Investigation, 84 FR 58129 (October 30, 2019).
\15\ See Sugar From Mexico: Notice of Termination of Amendment
to the Agreement Suspending the Antidumping Duty Investigation, 84
FR 67711, 67712 (December 11, 2019).
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On November 4, 2019, Commerce formally opened consultations to
renegotiate an amendment to the AD Agreement.\16\ On November 6, 2019,
Commerce released a proposed amendment to the AD Agreement and invited
parties to provide written comments on the proposed amendment by
November 12, 2019.\17\ On December 4, 2019, Commerce and a
representative of the signatory producers/exporters initialed a draft
amendment to the AD Agreement, and Commerce released corresponding
draft statutory memoranda.\18\ Interested parties were invited to
provide comments on the draft amendment and draft memoranda by December
16, 2019.
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\16\ See Letter to C[aacute]mara Nacional de Las Industrias
Azucarera y Alcoholera from P. Lee Smith, Deputy Assistant Secretary
for Policy & Negotiations, ``Consultations on Potential Amendment to
the Agreement Suspending the Antidumping Duty Investigation on Sugar
from Mexico'' (November 4, 2019).
\17\ See Letter to All Interested Parties from P. Lee Smith,
Deputy Assistant Secretary for Policy & Negotiations, ``Release of
Draft Amendment to the Agreement Suspending the Countervailing Duty
Investigation on Sugar from Mexico'' (November 6, 2019).
\18\ See Letter to All Interested Parties from Sally C. Gannon,
Director for Bilateral Agreements, ``Draft Amendment to the
Agreement Suspending the Antidumping Duty Investigation on Sugar
from Mexico and Draft Statutory Memoranda'' (December 4, 2019).
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Scope of Agreement
See Section I, Product Coverage, of the AD Agreement.
Analysis of Comments Received
We received comments on the draft amendment and draft statutory
memoranda from CSC Sugar; the petitioners, American Sugar Coalition and
its members; \19\ Imperial Sugar Company; C[aacute]mara Nacional de Las
Industrias Azucarera y Alcoholera (C[aacute]mara); the Sugar Users
Association (SUA); the International Sugar Trade Coalition, Inc.; and
the Corn Refiners Association. In reaching a final amendment to the AD
Agreement, Commerce has taken into account all comments submitted on
the record of the suspension agreement proceeding and has made changes,
where warranted, to the December 4, 2019 draft AD amendment based upon
those comments.
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\19\ The petitioners are the American Sugar Coalition and its
individual members: American Sugar Cane League, American Sugar
Refining, Inc., American Sugarbeet Growers Association, Florida
Sugar Cane League, Rio Grande Valley Sugar Growers, Inc., Sugar Cane
Growers Cooperative of Florida, and United States Beet Sugar
Association.
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Amendment to AD Agreement
Commerce consulted with the Mexican sugar producers/exporters and
domestic interested parties and has considered the comments submitted
by interested parties with respect to the draft amendment to the AD
Agreement. On January 15, 2020, after consideration of the interested
party comments received, Commerce and a representative of sugar
producers/exporters accounting for substantially all imports of sugar
from Mexico, signed a finalized amendment to the AD Agreement. The 2020
Amendment, as integrated with the AD Agreement (the amended AD
Agreement), allows for exports of Mexican sugar to the United States in
accordance with the collective terms therein.
In accordance with section 734(c) of the Act, we have determined
that extraordinary circumstances, as defined by section 734(c)(2)(A) of
the Act, exist with respect to the amended AD Agreement. We have also
determined that the amended AD Agreement will eliminate completely the
injurious effect of exports to the United States of the subject
merchandise and prevent the suppression or undercutting of price levels
of domestic sugar by imports of that merchandise from Mexico, as
required by section 734(c)(1) of the Act. We have also determined that
the amended AD Agreement is in the public interest and can be monitored
effectively, as required under section 734(d) of the Act.
For the reasons outlined above, we find that the amended AD
Agreement
[[Page 3622]]
meets the criteria of section 734(c) and (d) of the Act.
The terms and conditions of the amended AD Agreement, signed on
January 15, 2020, are set forth in the 2020 Amendment to the AD
Agreement, which is attached in Annex 1 to this notice.
Administrative Protective Order Access
The administrative protective order (APO) Commerce granted in the
suspension agreement segment of this proceeding remains in place and
effective for the amended AD Agreement. All new parties requesting
access to business proprietary information submitted during the
administration of the amended AD Agreement, under the APO currently in
effect, must submit an APO application in accordance with the
Commerce's regulations currently in effect.\20\
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\20\ See section 777(c)(1) of the Act; 19 CFR 351.103, 351.304,
351.305, and 351.306.
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We are issuing and publishing this notice in accordance with
section 734(f)(1)(A) of the Act and 19 CFR 351.208(g)(2).
Dated: January 15, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
Annex 1: Amendment to the Agreement Suspending the Antidumping Duty
Investigation on Sugar From Mexico
The Agreement Suspending the Antidumping Duty Investigation on
Sugar from Mexico (Agreement) signed by the signatory producers and
exporters of Sugar from Mexico (individually, Signatory;
collectively, Signatories) and the United States Department of
Commerce (Commerce) on December 19, 2014, is amended, as set forth
below (Amendment).
If a provision of the Agreement conflicts with a provision of
this Amendment, the provision of the Amendment shall supersede the
provision of the Agreement to the extent of the conflict. All other
provisions of the Agreement and their applicability continue with
full force.
Commerce and the Signatories hereby agree as follows:
Section II (``Definitions'') is amended as follows:
Section II.C is replaced with:
``Effective Date of the Agreement'' means the date on which
Commerce and the Signatories signed the Agreement. Additionally, the
``Effective Date of the Amendment'' means the date on which Commerce
and the Signatories sign the Amendment.
Section II.F is replaced with:
``Other Sugar'' means
a. Sugar at a polarity of less than 99.2, as produced and
measured on a dry basis;
b. Where such Sugar is Additional U.S. Needs Sugar, as defined
in Section II.O,
Sugar at a polarity of less than 99.5, as produced and measured
on a dry basis; and,
c. In the event that Section V.B.4.d of the Agreement Suspending
the Countervailing Duty Investigation on Sugar from Mexico (CVD
Agreement) is exercised, Sugar at a polarity specified by USDA that
is below 99.5, as produced and measured on a dry basis.
Such Other Sugar must be exported to the United States loaded in
bulk and freely flowing (i.e., not in a container, tote, bag or
otherwise packaged) into the hold(s) of an ocean-going vessel. To be
considered as Other Sugar, if Sugar leaves the Mexican mill in a
container, tote, bag or other package (i.e., is not freely flowing),
it must be emptied from the container, tote, bag or other package
into the hold of the ocean-going vessel for exportation. All other
exports of Sugar from Mexico that are not transported in bulk and
freely flowing in the hold(s) of an ocean-going vessel will be
considered to be Refined Sugar for purposes of the Reference Prices,
regardless of the polarity of that Sugar.
Section II.H is replaced with:
``Refined Sugar'' means
a. Sugar at a polarity of 99.2 and above, as produced and
measured on a dry basis;
b. Sugar considered to be Refined Sugar under Section II.F;
c. Where such Sugar is Additional U.S. Needs Sugar as defined in
Section II.O,
Sugar at a polarity of 99.5 and above, as produced and measured
on a dry basis; and
d. In the event that Section V.B.4.d of the CVD Agreement is
exercised, Sugar at a polarity specified by USDA that is 99.5 or
above, as produced and measured on a dry basis.
New Section II.N is added as follows:
``Intermediary Customer'' means trader, processor, or other
reseller located outside of the United States who sells Sugar to an
unaffiliated customer in the United States.
New Section II.O is added as follows:
``Additional U.S. Needs Sugar'' means the quantity of Sugar
allowed to be exported, over and above the Export Limit calculated
under Section V.B.3 of the CVD Agreement, to fill a need identified
by USDA in the U.S. market for a particular type and quantity of
Sugar, and offered to Mexico pursuant to Section V.B.4.c of the
amended CVD Agreement.
Section VII (``Monitoring of the Agreement'') is amended as
follows:
Section VII.B (``Compliance Monitoring'') is amended as follows:
Section VII.B.4--an additional sentence as follows is added to
the end of paragraph 4:
Commerce may verify polarity testing practices at any Mexican
mill and request supporting documentation for polarity test results.
Section VII.C (``Shipping and Other Arrangements'') is amended
as follows:
Section VII.C.4 is replaced with the following, with the
sentence in italics being added to the language:
4. Not later than 30 days after the end of each quarter, each
Signatory will submit a written statement to Commerce certifying
that all sales during the most recently completed quarter were at
net prices, after rebates, discounts, or other adjustments, at or
above the Reference Prices in effect and were not part of or related
to any act or practice which would have the effect of hiding the
real price of the Sugar being sold. Further, each Signatory will
certify in this same statement that all sales made during the
relevant quarter were not part of or related to any bundling
arrangement, discounts/free goods/financing package, swap or other
exchange where such arrangement is designed to circumvent the basis
of the Agreement. As part of the certification, each Signatory will
submit a listing of the total quantity of Other Sugar and Refined
Sugar that was exported during each quarter.
Each Signatory that did not export Sugar to the United States
during any given quarter will submit a written statement to Commerce
certifying that it made no sales to the United States during the
most recently completed quarter. Each Signatory agrees to permit
full verification of its certification as Commerce deems necessary.
Failure to provide a quarterly certification may be considered a
Violation of the Agreement.
Section VII.C.5 is added as follows:
5. For each sale made by a Signatory to an Intermediary
Customer, the Signatory shall incorporate into its sales contract
with the Intermediary Customer the obligation that such customers
will abide by the terms of the Agreement, including selling the
Sugar from Mexico to the first downstream unaffiliated U.S. customer
in accordance with the terms of the Agreement. Further, for each
sale made by a Signatory to an Intermediary Customer, the Signatory
shall incorporate into its sales contract with the Intermediary
Customer a provision requiring the Intermediary Customer to provide
Commerce with all sales and other related information Commerce
requests.
Further, Signatories and Intermediary Customers must retain
evidence in their files to document that these contractual
obligations were implemented. Commerce retains its authority to
request the Signatory and/or Intermediary Customer to provide such
documentation, and Commerce may verify such documentation. Where a
Signatory does not have access to the documentation but has
obligated the Intermediary Customer to provide it to Commerce,
Commerce will request the Intermediary Customer to provide the
documentation. Failure by a Signatory and/or Intermediary Customer
to provide requested documentation may be considered a Violation
under Section VIII of the Agreement.
Section VII.C.6 is added as follows:
6. Other Sugar may enter the Customs territory of the United
States if the following conditions are met:
Exporters of Other Sugar are required to ensure, through
inclusion of obligations in their sales contracts or otherwise, that
importers of record of such Other Sugar agree to ensure that Other
Sugar is tested for polarity by a laboratory approved by U.S.
Customs and Border Protection (CBP) upon entry into the United
States, with samples drawn in accordance with CBP standards, and
that the importers of record agree to report the polarity test
results for each entry to Commerce within 30 days of entry. Such
[[Page 3623]]
polarity test reports must be filed on the official records of
Commerce for both this Agreement and the CVD Agreement. For clarity,
sampling will be done in accordance with CBP standards (e.g., CBP
Directive No. 3820-001B), or its successor directive as agreed by
Commerce and the Signatories, including the CBP requirement that the
polarity level of an entry will be the average of the samples from
that entry.
Commerce will request that CBP inform the importing public of
the requirements for importation of Other Sugar set forth in this
sub-section.
Section VII.C.7 is added as follows:
7. Penalties for Non-Compliance with Section VII.C.6:
a. Where Commerce finds that exporters and importers of record
of Other Sugar are not complying with Section VII.C.6, Commerce may
consider this a Violation under Section VIII.D of the Agreement.
b. If Commerce finds that issues with meeting the polarity
requirements of the Agreement as required by Sections II.F, II.H,
VII.C.6 and Appendix I continue to arise, Commerce can at any time
terminate the Agreement under Section X.B. Apart from termination,
Commerce may take additional steps to ensure compliance with the
terms of this Agreement, including action under Section VIII.B.4 of
the CVD Agreement.
Section VIII (``Violations of the Agreement'') is amended as
follows:
Section VIII.D is amended by adding new paragraphs 3 and 4, and
moving paragraph 3 to paragraph 5:
D.3 Failure by Signatories and Intermediary Customers to provide
the required documentation specified in Section VII.C.5.
D.4 Failure by Signatories and importers of record to comply
with the requirements under Section VII.C.6.
Appendix I is amended as follows:
At Appendix I, the following will be changed:
The FOB plant Reference Price for Refined Sugar is $0.2800 per
pound commercial value (whether freely flowing or in totes weighing
one (1) MT or greater as the sugar leaves the mill), as produced and
measured on a dry basis.
The FOB plant Reference Price for Other Sugar is $0.2300 per
pound commercial value (whether freely flowing or in totes weighing
one (1) MT or greater as the sugar leaves the mill), as produced and
measured on a dry basis.
In addition, the following clause will be added to Appendix I
when referencing the Reference Prices.
Mexican Signatory producers/exporters must ensure that the
delivered sales price for all Sugar from Mexico exported to the
United States must include all expenses, e.g., transportation, de-
bagging, warehousing, handling, and packaging charges, in excess of
the FOB plant Reference Price. As specified in Sections VII.B.1 and
VII.B.2 of the Agreement, Commerce has the authority to request
sales information, and to verify such information, which
demonstrates compliance with the Reference Prices and terms of the
Agreement.
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Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance, U.S. Department
of Commerce
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Date
The following party hereby certifies that the members of the
Mexican sugar industry agree to abide by all terms of the Amendment
to the Agreement:
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Juan Cortina Gallardo,
President of the Board, C[aacute]mara Nacional de Las Industrias
Azucarera y Alcoholera (Mexican Sugar Chamber)
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Date
[FR Doc. 2020-00970 Filed 1-21-20; 8:45 am]
BILLING CODE 3510-DS-P
