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
13 January 2020

[Federal Register Volume 85, Number 8 (Monday, January 13, 2020)]
[Notices]
[Pages 1801-1802]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-00300]


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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 December 26, 2019, the United States Court of International 
Trade (the Court) issued final judgment in Guizhou Tyre Co. Ltd.; 
Guizhou Tyre Import & Export Co., Ltd; & Xuzhou Xugong Tyres Co., Ltd. 
v. United States, Consol. Court No. 17-00101, Slip Op. 19-171, 
sustaining the Department of Commerce's (Commerce) remand results 
pertaining to the 2014 administrative review of the countervailing duty 
(CVD) order on certain 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 2014 administrative review, and that 
Commerce is amending the final results of the 2014 administrative 
review with respect to mandatory respondents and non-selected 
companies.

DATES: Applicable January 6, 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 18, 2017, Commerce published the Final Results pertaining 
to mandatory respondents Guizhou Tyre Co., Ltd. (Guizhou Tyre) and 
Xuzhou Xugong Tyres Co. Ltd. (Xuzhou Xugong)

[[Page 1802]]

in the 2014 administrative review of the CVD order on OTR Tires from 
China.\1\ The period of review is January 1, 2014 through December 31, 
2014. In the Final Results, Commerce found, based on adverse facts 
available (AFA), that the mandatory respondents had used the Export 
Buyer's Credit Program (EBCP).\2\
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    \1\ See Certain New Pneumatic Off-the-Road Tires from the 
People's Republic of China: Final Results of Countervailing Duty 
Administrative Review; 2014, 82 FR 18285 (April 18, 2017) (Final 
Results), and the accompanying Issues and Decision Memorandum (IDM).
    \2\ See Final Results IDM.
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    On October 25, 2018, the Court remanded the Final Results to 
Commerce to reconsider its decision to apply AFA to the EBCP 
program.\3\ Specifically, the Court held that ``Commerce had a clear 
path to find non-use by either accepting the declarations submitted by 
{p{time} laintiffs and their U.S. Customers or by verifying these 
declarations,'' and ordered Commerce to reconsider the evidence of non-
use by Government of China (GOC).\4\
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    \3\ See Guizhou Tyre Co., Ltd., et al. v. United States, CIT 
Slip Op. 18-140, Consol. Ct. No. 17-00101 (October 17, 2018) (First 
Remand Order) at 25-26.
    \4\ See First Remand Order at 9 and 25.
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    On March 5, 2019, Commerce submitted its remand redetermination, in 
which it reconsidered its decision to apply AFA to the EBCP and 
provided extensive additional explanation in support of its treatment 
of the program.\5\ Guizhou Tyre and Xuzhou Xugong continued to 
challenge Commerce's determination regarding the use of EBCP. Pursuant 
to the Court's remand order, Commerce had explained how the GOC's 
refusal to provide certain information concerning the operation of the 
program prevented a meaningful and accurate verification of the non-use 
claims of the respondents and their U.S. customers.\6\
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    \5\ See Results of Redetermination Pursuant to Court Remand 
(March 5, 2018) (First Remand Results) at 5-17 and 24-33.
    \6\ See First Remand Results at 5-17.
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    On August 21, 2019, the Court again remanded the determination to 
Commerce, ordering Commerce to reconsider its application of AFA in 
light of the record evidence of non-use. The Court held that Commerce 
did not establish that there was a gap in the record that warranted the 
application of AFA with respect to the EBCP program.\7\
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    \7\ See Guizhou Tyre Co., Ltd., et al. v. United States, CIT 
Slip Op. 19-114, Consol. Ct. No. 17-00101 (August 21, 2019) (Second 
Remand Order) at 3-5 and 11.
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    On November 19, 2019, Commerce filed its second remand 
redetermination with the Court reconsidering its decision to apply AFA 
in evaluating use of the EBCP, in which it determined, under respectful 
protest, that the EBCP program was not used by the respondents based on 
the certifications submitted by Guizhou Tyre from its customers stating 
that they did not use program and the record statements by Xuzhou 
Xugong that none of its customers used the program.\8\ Accordingly, 
Commerce assigned Guizhou Tyre, Xuzhou Xugong and other non-selected 
companies net subsidy rates of 19.78 percent, 46.31 percent, and 33.05 
percent, respectively.\9\
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    \8\ See Results of Redetermination Pursuant to Court Remand 
(November 19, 2019) (Second Remand Results) at 8-10.
    \9\ Id. at 9.
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    On December 26, 2019, the Court sustained Commerce's Second Remand 
Results and entered final judgment.\10\
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    \10\ See Guizhou Tyre Co., Ltd.; Guizhou Tyre Import & Export 
Co., Ltd; & Xuzhou Xugong Tyres Co. Ltd. v. United States, CIT Slip 
Op. 19-171, Consol. Ct. No. 17-00101 (December 26, 2019).
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Timken Notice

    In its decision in Timken,\11\ as clarified by Diamond 
Sawblades,\12\ the U.S. Court of Appeals for the Federal Circuit (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 December 26, 2019 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.\13\ This notice is 
published in fulfillment of the Timken publication requirements.
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    \11\ See Timken Co. v. United States, 893 F. 2d 337, 341 (Fed. 
Cir. 1990) (Timken).
    \12\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F. 3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
    \13\ See Final Results.
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Amended Final Results

    Because there is now a final court decision, we are amending the 
Final Results with respect to the CVD rates calculated for Guizhou Tyre 
and Xuzhou Xugong. Based on the Second Remand Results, as sustained by 
the Court, the revised CVD rates for Guizhou Tyre, Xuzhou Xugong, and 
non-selected companies, from January 1, 2014 through December 31, 2014, 
are 19.78 percent, 46.31 percent, and 33.05 percent, respectively.
    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: January 7, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2020-00300 Filed 1-10-20; 8:45 am]
 BILLING CODE 3510-DS-P