Certain New Pneumatic Off-The-Road Tires from the People's Republic of China; 2012-2013: Notice of Court Decision Not in Harmony With Final Results of Administrative Review and Notice of Amended Final Results of Antidumping Duty Administrative Review |
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Jeffrey I. Kessler
Department of Commerce
17 October 2019
[Federal Register Volume 84, Number 201 (Thursday, October 17, 2019)]
[Notices]
[Pages 55553-55554]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-22666]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-912]
Certain New Pneumatic Off-The-Road Tires from the People's
Republic of China; 2012-2013: Notice of Court Decision Not in Harmony
With Final Results of Administrative Review and Notice of Amended Final
Results of Antidumping Duty Administrative Review
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On September 3, 2019, the United States Court of International
Trade (the Court) issued a final judgment in China Manufacturers
Alliance, LLC. and Double Coin Holdings Ltd., et al. v. United States,
Consol. Court No. 15-00124; Slip Op. 19-115 (CIT September 3, 2019)
(China Mfr. Alliance III), sustaining the Department of Commerce's
(Commerce) remand results for the fifth administrative review of the
antidumping duty (AD) order on certain new pneumatic off-the-road tires
(OTR tires) from the People's Republic of China (China) covering the
period of review (POR) September 1, 2012 through August 31, 2013.
Commerce is notifying the public that the Court has made a final
judgment that is not in harmony with Commerce's final results of the
administrative review, and that Commerce is amending the final results
with respect to certain exporters identified herein.
DATES: Applicable September 13, 2019.
FOR FURTHER INFORMATION CONTACT: Keith Haynes, AD/CVD Operations Office
III, Enforcement and Compliance, International Trade Administration,
U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington,
DC, 20230; telephone: (202) 482-5139.
SUPPLEMENTARY INFORMATION:
Background
On April 15, 2015, Commerce issued its Final Results \1\ in the
fifth administrative review of the AD order on OTR tires from China.
The plaintiffs in this litigation, mandatory respondent Double Coin
Holdings Ltd and its affiliated U.S. importer China Manufacturers
Alliance, LLC, and mandatory respondent Guizhou Tyre Co., Ltd. and
Guizhou Tyre Import and Export Co., Ltd. (collectively, GTC), timely
filed complaints with the Court challenging certain aspects of
Commerce's Final Results.\2\ Domestic interested parties Titan Tire
Corporation and United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union, AFL-CIO-CLC intervened as defendant-intervenors,
but withdrew from these cases on September 29, 2017.\3\
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\1\ See Certain New Pneumatic Off-the-Road Tires from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review; 2012-2013, 80 FR 20197 (April 15, 2015)
(Final Results) and accompanying Issues and Decision Memorandum
(IDM).
\2\ See China Mfr. Alliance III, at 2.
\3\ Id.
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On February 6, 2017, the Court remanded Commerce's Final
Results.\4\ In
[[Page 55554]]
its First Remand Redetermination, Commerce: (1) Continued to reduce
GTC's U.S. sales prices to account for irrecoverable value-added tax
(VAT); (2) determined that ``Shanghai Port Surcharges,'' but not other
brokerage and handling or ocean freight charges, were double counted
and removed the charges from the international freight surrogate value
calculation; (3) made an inflation adjustment to domestic warehousing
costs to match the surrogate value to the POR; and (4) assigned Double
Coin a de minimis 0.14 percent margin instead of assigning it a 105.31
percent margin as part of the China-wide entity, under respectful
protest.\5\ After issuing its First Remand Redetermination, Commerce
moved for a partial voluntary remand on the issue of Double Coin's
margin in light of the Court of Appeals for the Federal Circuit's
(CAFC) decision in Diamond Sawblades 2017.\6\
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\4\ See China Manufacturers Alliance, LLC et al. v. United
States, Consol. Court No. 15-00124, Slip Op 17-12 (CIT February 6,
2017) (China Mfr. Alliance I).
\5\ See Final Results of Redetermination Pursuant to Remand,
Court No. 15-00124, Slip Op. 17-12 (CIT 2017) (First Remand
Redetermination); see also Viraj Group, Ltd. v. United States, 343
F.3d 1371, 1376 (Fed. Cir. 2003).
\6\ See Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d
1304 (CAFC 2017) (Diamond Sawblades 2017).
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On January 16, 2019, the Court sustained, in part, and remanded, in
part, Commerce's First Remand Redetermination and denied Commerce's
motion for partial voluntary remand.\7\ The Court sustained Commerce's
determinations to make an inflation adjustment to domestic warehousing
costs and that Shanghai Port Charges were double counted for GTC.\8\ In
denying Commerce's motion for partial voluntary remand, the Court found
that the only rate supported by the record evidence that Commerce could
apply to Double Coin is the 0.14 percent margin applied in the First
Remand Redetermination.\9\ The Court remanded Commerce's
determinations: (1) That the brokerage and handling and ocean freight
charges other than the Shanghai Port Charges were not double counted
for GTC; \10\ and (2) to continue reducing GTC's U.S. sales prices to
account for irrecoverable VAT.\11\
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\7\ See China Manufacturers Alliance, LLC et al. v. United
States, Consol. Court No. 15-00124, Slip Op 19-7 (CIT January 16,
2019) at 42-43 (China Mfr. Alliance II).
\8\ Id. at 8-9.
\9\ Id. at 41-42.
\10\ Id. at 25.
\11\ Id. at 18-19.
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In its Second Remand Redetermination, Commerce recalculated GTC's
U.S. sale prices without making deductions for irrecoverable VAT, under
respectful protest, and adjusted GTC's brokerage and handling and ocean
freight costs for certain double-counted expenses.\12\
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\12\ See Final Results of Redetermination Pursuant to Court
Remand, Court No. 15-00124, Slip Op. 19-7 (CIT 2019) (Second Remand
Redetermination).
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In light of these determinations, Commerce has made changes to
GTC's margin calculation and the margin assigned to Double Coin.\13\
After accounting for all such changes and issues addressed in the
remand redeterminations, the resulting weighted-average dumping margin
for GTC is 4.59 percent, and the margin assigned to Double Coin is 0.14
percent. On September 3, 2019, the Court sustained the Second Remand
Redetermination.\14\
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\13\ See Memorandum, ``Draft Results of Redetermination Pursuant
to Second Court Remand in the 2012-2013 Antidumping Duty
Administrative of Certain New Pneumatic Off-the-Road Tires from the
People's Republic of China: Margin Calculation and Surrogate Value
Memorandum for Guizhou Tyre Co., Ltd. and Guizhou Tyre Import and
Export Co., Ltd.,'' dated March 21, 2019; see also First Remand
Redetermination at 21; and Memorandum, ``Draft Results of
Redetermination Pursuant to Second Court Remand in the 2012-2013
Antidumping Duty Administrative Review of Certain New Pneumatic Off-
the-Road Tires from the People's Republic of China: Margin
Calculation and Surrogate Value Memorandum for Guizhou Tyre Co.,
Ltd. and Guizhou Tyre Import and Export Co., Ltd.,'' dated March 21,
2019.
\14\ See China Mfr. Alliance III.
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Consistent with the decision of the CAFC in Timken Co. v. United
States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), as clarified by Diamond
Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir.
2010) (Diamond Sawblades), Commerce is notifying the public that the
final judgment in this case is not in harmony with Commerce's Final
Results. Thus, Commerce is amending the Final Results with respect to
the weighted-average dumping margins for the mandatory respondents, as
listed above.
Timken Notice
In its decision in Timken, 893 F.2d at 341, as clarified by Diamond
Sawblades, the CAFC held that, pursuant to section 516A(e) of the
Tariff Act of 1930, as amended (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 September 3, 2019 judgment
sustaining the Second Remand Redetermination constitutes a final
decision of the Court that is not in harmony with Commerce's Final
Results. As such, Commerce has published this notice in fulfillment of
the publication requirement of Timken.
Amended Final Results
Because there is now a final court decision, Commerce is amending
the Final Results with respect to the mandatory respondents. The
revised weighted-average dumping margins for these exporters during the
period September 1, 2012 through August 31, 2013 are as follows:
------------------------------------------------------------------------
Weighted-
average
Exporter dumping
margin
(percent)
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Double Coin Holdings Ltd................................... 0.14
Guizhou Tyre Co., Ltd./Guizhou Tyre Export and Import Co., 4.59
Ltd.......................................................
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Accordingly, Commerce will continue the suspension of liquidation
of the subject merchandise pending the end of the period of appeal or,
if appealed, pending a final and conclusive court decision. In the
event the Court's ruling is not appealed or, if appealed, and upheld by
the CAFC, Commerce will instruct U.S. Customs and Border Protection
(CBP) to assess antidumping duties on unliquidated entries of subject
merchandise exported by the companies identified above using the
assessment rates calculated by Commerce in the remand redeterminations,
as listed in the above table.
Cash Deposit Requirements
Because the AD order on OTR tires from China was revoked,\15\
Commerce will not issue cash deposit instructions as a result of this
Court decision.
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\15\ See Certain New Pneumatic Off-the-Road Tires from the
People's Republic of China: Final Results of Sunset Reviews and
Revocation of Antidumping Duty and Countervailing Duty Orders, 84 FR
20616 (May 10, 2019).
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Notification to Interested Parties
Commerce has issued and published this notice in accordance with
sections 516A(e), 751(a)(1), and 777(i)(1) of the Act.
Dated: October 9, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-22666 Filed 10-16-19; 8:45 am]
BILLING CODE 3510-DS-P