Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Results of Administrative Review and Notice of Amended Final Results

Jeffrey I. Kessler
Department of Commerce
19 June 2020

[Federal Register Volume 85, Number 119 (Friday, June 19, 2020)]
[Notices]
[Pages 37063-37064]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-13266]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[C-570-913]


Certain New Pneumatic Off-the-Road Tires From the People's 
Republic of China: Notice of Court Decision Not in Harmony With Final 
Results of Administrative Review and Notice of Amended Final Results

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: On June 5, 2020, the United States Court of International 
Trade (the Court) sustained the Department of Commerce's (Commerce) 
remand redetermination pertaining to the 2015 administrative review of 
the countervailing duty (CVD) order on certain new pneumatic off-the-
road tires (OTR Tires) from the People's Republic of China (China). 
Commerce is notifying the public that the Court has made a final 
judgment that is not in harmony with the final results of the 2015 
administrative review, and that Commerce is amending the final results 
of the 2015 administrative review with respect to Guizhou Tyre Co., 
Ltd. (Guizhou Tyre) and non-selected companies.

DATES: Applicable June 15, 2020.

FOR FURTHER INFORMATION CONTACT: Chien-Min Yang, AD/CVD Operations, 
Office VII, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-5484.

SUPPLEMENTARY INFORMATION:

Background

    On April 13, 2018, Commerce published its Final Results pertaining 
to mandatory respondents Guizhou Tyre and Xuzhou Xugong Tyres Co., Ltd. 
(Xuzhou Xugong), along with other exporters.\1\ The period of review 
(POR) is January 1, 2015 through December 31, 2015. In the Final 
Results, Commerce found that the use of adverse facts available (AFA) 
was warranted in determining the countervailability of the Export 
Buyer's Credit Program (EBCP) because the Government of China (GOC) did 
not provide the requested information needed to allow Commerce to fully 
analyze this program and, thus, had not cooperated to the best of its 
ability in response to our information requests.\2\ Guizhou Tyre 
challenged Commerce's determination to apply AFA with respect to this 
program, and Commerce's finding that the synthetic rubber market was 
not distorted during the POR, as well as other aspects of the Final 
Results.
---------------------------------------------------------------------------

    \1\ See Certain New Pneumatic Off-the-Road Tires from the 
People's Republic of China: Final Results of Countervailing Duty 
Administrative Review; 2015, 83 FR 16055 (April 13, 2018) (Final 
Results), and accompanying Issues and Decision Memorandum (IDM), as 
amended, Certain New Pneumatic Off-the-Road Tires from the People's 
Republic of China: Amended Final Results of Countervailing Duty 
Administrative Review, 2015, 83 FR 32078 (July 11, 2018).
    \2\ See IDM at 13-14.
---------------------------------------------------------------------------

    On May 15, 2019, the Court remanded the Final Results to Commerce 
to: (1) Reconsider our decision to apply AFA with respect to the EBCP; 
and (2) reconsider or further explain our market distortion decision 
with respect to the synthetic rubber market in China.\3\ On August 27, 
2019, Commerce reconsidered its decision to apply AFA with respect to 
the EBCP and provided additional explanation in support of its 
treatment of the program. Commerce also reexamined its synthetic rubber 
market distortion finding, providing a more detailed analysis of market 
conditions, and continued to find that the synthetic rubber market was 
not distorted in China during the POR.
---------------------------------------------------------------------------

    \3\ See Guizhou Tyre Co., Ltd. et al. v. United States, 389 F. 
Supp. 3d 1315, 1329 (May 15, 2019).
---------------------------------------------------------------------------

    On December 10, 2019, the Court affirmed Commerce's additional 
explanation and finding of market distortion in the Chinese synthetic 
rubber market.\4\ However, the Court ordered that Commerce reconsider 
its decision to apply AFA with respect to the EBCP, holding that 
Commerce had not established that a gap in the record existed such that 
the agency needed to rely on facts otherwise available.\5\
---------------------------------------------------------------------------

    \4\ See Guizhou Tyre Co., Ltd. et al. v. United States, 415 F. 
Supp. 3d 1335, 1339-40 (December 10, 2019) (Second Remand Order).
    \5\ See Second Remand Order, 415 F. Supp. 3d 1335, 1340-44 
(December 10, 2019).
---------------------------------------------------------------------------

    On March 5, 2020, Commerce reconsidered its decision to apply AFA 
in evaluating use of the EBCP and determined, under protest, that the 
EBCP program was not used by the

[[Page 37064]]

respondents.\6\ Accordingly, Commerce calculated a revised subsidy rate 
of 29.44 percent for Guizhou Tyre and other non-selected companies.\7\
---------------------------------------------------------------------------

    \6\ See Results of Redetermination Pursuant to Court Remand 
(March 5, 2020) (Second Remand Results) at 3-4.
    \7\ Id. at 4-5.
---------------------------------------------------------------------------

    On June 5, 2020, the Court sustained Commerce's Second Remand 
Results and entered final judgement.\8\
---------------------------------------------------------------------------

    \8\ See Guizhou Tyre Co., Ltd. et al. v. United States, CIT Slip 
Op. 20-81, Consol. Ct. No. 18-00100 (June 5, 2020).
---------------------------------------------------------------------------

Timken Notice

    In its decision in Timken,\9\ as clarified by Diamond 
Sawblades,\10\ the Court of Appeals for the Federal Circuit held that, 
pursuant to section 516A(e) of the Act, Commerce must publish a notice 
of a court decision that is not in harmony with a Commerce 
determination and must suspend liquidation of entries pending a 
conclusive court decision. The Court's June 5, 2020 final judgment 
sustaining Commerce's Second Remand Results constitutes a final 
decision of the Court that is not in harmony with Commerce's Final 
Results.\11\ This notice is published in fulfillment of the Timken 
publication requirements. Accordingly, Commerce will continue the 
suspension of liquidation of the OTR Tires subject to this review 
pending expiration of the period of appeal or, if appealed, pending a 
final and conclusive court decision.
---------------------------------------------------------------------------

    \9\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. 
Cir. 1990) (Timken).
    \10\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
    \11\ See Final Results.
---------------------------------------------------------------------------

Amended Final Results

    Because there is now a final court decision, we are amending the 
Final Results with respect to the countervailing duty rates calculated 
for Guizhou Tyre and the non-selected companies. Based on the Second 
Remand Results, as affirmed by the Court, the revised countervailing 
subsidy rates for Guizhou Tyre and the non-selected companies, from 
January 1, 2015 through December 31, 2015, are 29.44 percent.\12\
---------------------------------------------------------------------------

    \12\ See Second Remand Results at 4-5.
---------------------------------------------------------------------------

    In the event that the Court's ruling is not appealed, or, if 
appealed, is upheld by a final and conclusive court decision, Commerce 
will instruct Customs and Border Protection to assess countervailing 
duties on unliquidated entries of subject merchandise based on the 
revised subsidy rates summarized above.

Notification to Interested Parties

    This notice is issued and published in accordance with section 
516A(e)(1), 781(d), and 777(i)(1) of the Act.

    Dated: June 15, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2020-13266 Filed 6-18-20; 8:45 am]
BILLING CODE 3510-DS-P