Certain Steel Wheels 12 to 16.5 Inches in Diameter From the People's Republic of China: Notice of Court Decision Not in Harmony With the Final Determination of Countervailing Duty Investigation and Notice of Amended Final Countervailing Duty Determination Publication: Federal Register Agency: International Trade Administration Byline: Ryan Majerus Date: 13 December 2021 Subject: American Government

[Federal Register Volume 86, Number 236 (Monday, December 13, 2021)]
[Notices]
[Pages 70826-70828]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-26998]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-570-091]


Certain Steel Wheels 12 to 16.5 Inches in Diameter From the 
People's Republic of China: Notice of Court Decision Not in Harmony 
With the Final Determination of Countervailing Duty Investigation and 
Notice of Amended Final Countervailing Duty Determination

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

SUMMARY: On November 18, 2021, the U.S. Court of International Trade 
(CIT) issued its final judgment in Trans Texas Tire, LLC and Zhejiang 
Jingu Company Limited v. United States, Consol. Court No. 19-00189, 
Slip Op. 21-157 (CIT November 18, 2021) sustaining the Department of 
Commerce (Commerce)'s remand redetermination pertaining to the 
countervailing duty (CVD) investigation of certain steel wheels 12 to 
16.5 inches in diameter (certain steel wheels) from the People's 
Republic of China (China). Commerce is notifying the public that the 
CIT's final judgment is not in harmony with Commerce's final 
determination in that investigation, and that Commerce is amending the 
final determination and the resulting CVD order with respect to the CVD 
margin assigned to entries of certain steel trailer wheels 12 to 16.5 
inches in diameter coated in chrome through a Physical Vapor Deposition 
(PVD) process produced and/or exported from the China by Zhejiang Jingu 
Company Limited (Jingu), or produced by Xingmin Intelligent 
Transportation Systems (Group) (Xingmin Intelligent) and imported by 
Trans Texas Tire LLC (Trans Texas).

DATES: Applicable November 29, 2021.

FOR FURTHER INFORMATION CONTACT: Brendan Quinn, 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) 482-5848.

SUPPLEMENTARY INFORMATION:

Background

    On July 9, 2019, Commerce published its final determination in the 
CVD investigation of certain steel wheels China.\1\ Commerce 
subsequently published the CVD order on certain steel wheels from 
China.\2\
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    \1\ See Certain Steel Trailer Wheels 12 to 16.5 Inches in 
Diameter from the People's Republic of China: Final Affirmative 
Countervailing Duty Determination, and Final Affirmative 
Determination of Critical Circumstances, 84 FR 32723 (July 9, 2019) 
(Final Determination).
    \2\ See Certain Steel Trailer Wheels 12 to 16.5 Inches from the 
People's Republic of China: Antidumping Duty and Countervailing Duty 
Orders, 84 FR 45952 (September 3, 2019) (Order).
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    As initiated, the scope of the underlying investigation excluded 
``certain on the road steel wheels that are coated entirely with 
chrome.'' \3\ This scope exclusion remained unchanged in the CVD 
preliminary determination published on February 25, 2019.\4\ Subsequent 
to the Preliminary Determination, though prior to the preliminary 
determination in the less-than-fair-value (LTFV) investigation, Dexstar 
Wheel Division of Americana Development, Inc. (the petitioner) filed 
additional scope comments regarding the exclusion of chrome wheels, 
specifically requesting that Commerce confirm that the chrome wheel 
exclusion did not include PVD chrome wheels.\5\ However, due to the 
proximity of the date on which the petitioner's comments (and relevant 
rebuttal

[[Page 70827]]

comments) were received relative to the statutory deadline for the 
issuance of the LTFV preliminary determination, Commerce deferred 
consideration of the petitioner's comments to the final determinations 
of the LTFV and CVD investigations.\6\ Accordingly, the scope language 
in Commerce's Initiation Notice and Preliminary Determination did not 
explicitly address whether the scope exclusion for steel wheels coated 
entirely with chrome covered PVD chrome wheels.
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    \3\ See Certain Steel Wheels 12 to 16.5 Inches in Diameter from 
the People's Republic of China: Initiation of Countervailing Duty 
Investigation, 83 FR 45100 (September 5, 2018) (Initiation Notice).
    \4\ See Certain Steel Wheels 12 to 16.5 Inches in Diameter from 
the People's Republic of China: Preliminary Affirmative 
Countervailing Duty Determination, 84 FR 5989 (February 25, 2019) 
(Preliminary Determination) at Appendix 1.
    \5\ See Petitioner's Letter, ``Certain Steel Wheels (12 to 16.5 
Inches in Diameter) from China: Petitioner's Clarification of the 
Exclusion of Chrome Wheels,'' dated March 28, 2019.
    \6\ See Memorandum, ``Certain Steel Wheels 12 to 16.5 Inches in 
Diameter from the People's Republic of China: Preliminary Scope 
Decision Memorandum,'' dated April 15, 2019.
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    Based on the petitioner's scope comments, Commerce solicited 
additional information with respect to PVD chrome wheels, and parties 
provided further information and argumentation in response. Commerce 
then evaluated the record with respect to this issue for the first time 
in its Final Scope Memo, finding with respect to PVD chrome wheels 
that:

based on evidence and information in the Petition, we find that the 
petitioner intended the exclusion to cover electroplated chrome 
wheels and was not intended to cover other types of chrome-adhering 
processes; nor were other types of chrome adhering processes, such 
as PVD, considered anywhere on the record prior to the respondent 
party's clarification request, in which case the petitioner promptly 
and consistently maintained its intent with respect to the chrome 
exclusion language. Thus, we do not find that limiting the exclusion 
to electroplating expands the scope, as the exclusion was never 
meant to cover PVD chrome wheels and, therefore, carving out an 
exception for PVD wheels from the exclusion is a clarification and 
not an impermissible expansion of the scope.\7\
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    \7\ See Memorandum, ``Certain Steel Wheels from the People's 
Republic of China: Final Scope Decision Memorandum for the Final 
Antidumping Duty and Countervailing Duty Determinations,'' dated 
July 1, 2019 (Final Scope Memo) at 15.
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    Accordingly, the scope of the Final Determination and resulting CVD 
order provided the following with respect to chrome-coated wheels:

    Excluded from this scope are the following: . . . (3) certain 
on-the-road steel wheels that are coated entirely in chrome. This 
exclusion is limited to chrome wheels coated entirely in chrome and 
produced through a chromium electroplating process, and does not 
extend to wheels that have been finished with other processes, 
including, but not limited to, Physical Vapor Deposition 
(PVD){.{time} 

    Further, in the Final Scope Memo, Commerce noted that ``the 
clarification that the exclusion in the scope for chrome wheels does 
not cover PVD chrome wheels is a clarification, based on the 
petitioner's original intent in the Petition, not an expansion of the 
scope. Thus, PVD chrome wheels are subject to duties from the start of 
suspension of liquidation, which was the preliminary determinations,'' 
and declined to revise the scope language to specify that the 
clarification of the exclusion for chrome wheels applies only to 
entries following the Final Determination.\8\
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    \8\ Id. at 16.
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    Trans Texas and Jingu challenged Commerce's scope determination 
before the CIT, arguing that Commerce unlawfully expanded the scope of 
the CVD investigation (and resulting order) to include PVD chrome 
wheels. Trans Texas and Jingu further argued that, even if the 
inclusion of PVD chrome wheels was lawful, Commerce erred by 
retroactively assessing countervailing duties on PVD chrome wheel 
imports back to the date of its Preliminary Determination.
    In its Remand Order, the Court determined that, while Commerce 
adequately explained its decision to include in the final scope of the 
investigation steel trailer wheels coated in chrome through a PVD 
process, countervailing duties on PVD chrome wheels retroactively 
imposed back to the date of Commerce's preliminary determination were 
not imposed in accordance with law.\9\ In particular, the Court held 
that retroactive assessment of duties back to the date of Commerce's 
preliminary determination was impermissible because Commerce did not 
provide adequate notice of the inclusion of PVD chrome wheels prior to 
the Final Scope Memo \10\ and, thus, remanded the Final Determination 
for Commerce to reformulate its instructions consistent with the Remand 
Order.\11\
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    \9\ See Trans Texas Tire, LLC and Zhejiang Jingu Company Limited 
v. United States, Consol. Court No. 19-00189, Slip Op. 21-63 (CIT 
May 18, 2021) (Remand Order) at 16 and 20-21.
    \10\ See Final Scope Memo.
    \11\ See Remand Order at 21-22 and 26.
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    On June 14, 2021, Commerce issued its Final Results of 
Redetermination, noting our intent to issue an amended final 
determination to clarify the date of imposition of countervailing 
duties to be the date of publication of the Final Determination and to 
issue instructions to U.S. Customs and Border Protection (CBP) with 
respect to Trans Texas and Jingu providing that entries of PVD chrome 
wheels entered, or withdrawn from warehouse, for consumption on or 
after February 25, 2019, up to July 8, 2019, are excluded from the 
scope of the investigation, consistent with the Court's Remand 
Order.\12\ These instructions give effect to the Court's holding that 
``reasonably informed importers were not provided clear or meaningful 
notice of the inclusion of PVD chrome wheels until the publication of 
the Final Scope Memo.'' \13\
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    \12\ See Final Results of Redetermination Pursuant to Court 
Remand, Trans Texas Tire, LLC and Zhejiang Jingu Company Limited v. 
United States, Consol. Court No. 19-00189; Slip Op. 21-63, dated 
June 14, 2021 (Final Results of Redetermination).
    \13\ See Remand Order at 21.
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    On November 18, 2021, the CIT sustained Commerce's final 
redetermination, and entered final judgment.\14\
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    \14\ See Trans Texas Tire, LLC and Zhejiang Jingu Company 
Limited v. United States, Consol. Court No. 19-00189, Slip Op. 21-
157 (CIT November 18, 2021).
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Timken Notice

    In its decision in Timken,\15\ as clarified by Diamond 
Sawblades,\16\ the Court of Appeals for the Federal Circuit held that, 
pursuant to section 516A(c) and (e) of the Tariff Act of 1930, as 
amended (the Act), Commerce must publish a notice of court decision 
that is not ``in harmony'' with a Commerce determination and must 
suspend liquidation of entries pending a ``conclusive'' court decision. 
The CIT's November 18, 2021, judgment constitutes a final decision of 
the CIT that is not in harmony with Commerce's Final Determination. 
Thus, this notice is published in fulfillment of the publication 
requirements of Timken.
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    \15\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (Timken).
    \16\ See Diamond Sawblades Manufacturers Coalition v. United 
States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Determination and Liquidation of Suspended Entries

    Because there is now a final court judgment, Commerce is amending 
its Final Determination with respect to the CVD margin assigned to 
entries of certain steel trailer wheels 12 to 16.5 inches in diameter 
coated in chrome through a PVD process produced and/or exported from 
China by Jingu, or produced by Xingmin Intelligent and imported by 
Trans Texas, which were entered or withdrawn from warehouse, for 
consumption on or after February 25, 2019 (the date of publication of 
the Preliminary Determination in the Federal Register), up to and 
including June 24, 2019 (the day on which CVD provisional measures 
expired), and which remained unliquidated as of the date of the 
relevant preliminary injunction (September 4, 2020, in the case of 
merchandise produced and/or exported by Jingu; and November 27, 2019, 
in the case of merchandise

[[Page 70828]]

produced by Xingmin Intelligent and imported by Trans Texas).
    Commerce will continue the suspension of liquidation of the subject 
merchandise pending the expiration of the period of appeal or, if 
appealed, pending a final and conclusive court decision. Specifically, 
we will direct CBP to suspend or continue to suspend liquidation of 
such entries at a zero percent cash deposit rate during the pendency of 
the appeals process until specific liquidation instructions are issued, 
and we will notify CBP that it is authorized to grant a refund of cash 
deposits for such entries, if requested by the importer prior to 
liquidation pursuant to 19 U.S.C. 1520(a)(4). In the event the Court's 
ruling is not appealed or, if appealed, upheld by the Court of Appeals 
for the Federal Circuit, Commerce will instruct CBP that entries of 
certain steel trailer wheels 12 to 16.5 inches in diameter coated in 
chrome through a PVD process, which: (a) Were the subject of the Final 
Determination; (b) were produced and/or exported from China by Jingu, 
or were produced by Xingmin Intelligent and imported by Trans Texas; 
(c) were entered, or withdrawn from warehouse, for consumption on or 
after February 25, 2019 up to and including June 24, 2019; and (d) 
remain unliquidated as of September 4, 2020 (for wheels produced and/or 
exported from China by Jingu) or remain unliquidated as of November 27, 
2019 (for wheels produced by Xingmin Intelligent and imported by Trans 
Texas); are outside of the scope of the CVD order on certain steel 
trailer wheels from China.

Notification to Interested Parties

    This notice is issued and published in accordance with sections 
516A(c) and (e) and 777(i)(1) of the Act.

    Dated: November 24, 2021.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations, Performing the 
Non-Exclusive Functions and Duties of The Assistant Secretary for 
Enforcement and Compliance.
[FR Doc. 2021-26998 Filed 12-10-21; 8:45 am]
BILLING CODE 3510-DS-P