[Federal Register Volume 85, Number 58 (Wednesday, March 25, 2020)]
[Notices]
[Pages 16926-16927]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-06214]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-053]
Certain Aluminum Foil From the People's Republic of China: Notice
of Court Decision Not in Harmony With Amended Final Determination of
Sales at Less Than Fair Value and Antidumping Duty Order
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On March 9, 2020, the United States Court of International
Trade (the Court) issued final judgment in Jiangsu Zhongji Lamination
Materials Co., (HK) Ltd., Jiangsu Zhongji Lamination Materials Stock
Co., Ltd., Jiangsu Zhongji Lamination Materials Stock Co., Ltd, and
Jiangsu Huafeng Aluminum Industry Co., Ltd. v. United States, Court No.
18-00091, sustaining the Department of Commerce's (Commerce) final
results of the redetermination pursuant to remand. Consistent with the
decision of the United States Court of Appeals for the Federal Circuit
(Federal Circuit) in Timken Co., v. United States, (Fed. Cir. 1990)
(Timken), as clarified by Diamond Sawblades Mfrs. Coalition v. United
States, (Fed. Cir. 2010) (Diamond Sawblades), Commerce is notifying the
public that the final judgment in this case is not in harmony with
Commerce's decision in Certain Aluminum Foil from the People's Republic
of China: Amended Final Determination of Sales at Less Than Fair Value
and Antidumping Duty Order, (April 19, 2018) (Amended Final
Determination).
Commerce is amending the amended final results with respect to the
weighted-average dumping margin assigned to Jiangsu Zhongji Lamination
Materials Co., (HK) Ltd., Jiangsu Zhongji Lamination Materials Stock
Co., Ltd., Jiangsu Zhongji Lamination Materials Stock Co., Ltd, and
Jiangsu Huafeng Aluminum Industry Co., Ltd. (collectively Zhongji).
DATES: Applicable March 19, 2020.
FOR FURTHER INFORMATION CONTACT: Michael J. Heaney or Chelsey
Simonovich, AD/CVD Operations, Office VI, Enforcement and Compliance,
International Trade Administration, U.S. Department of Commerce, 1401
Constitution Avenue NW, Washington, DC 20230; telephone: (202) 482-4475
or (202) 482-1979, respectively.
SUPPLEMENTARY INFORMATION:
Background
On August 15, 2019, the Court sustained Commerce on the following
issues: (1) The selection of South Africa, rather than Bulgaria, as the
source of surrogate values; \1\ (2) the selection of international
freight values used by Commerce in the Final Determination; \2\ (3)
Commerce's valuation of Zhongji's scrap; \3\ and (4) Commerce's
decision to defer issuance of its Preliminary Determination.\4\
Furthermore, the Court found that Zhongji's arguments about the broader
legitimacy of the irrevocable value-added tax (VAT) adjustment were not
properly raised during the administrative proceeding.\5\ In the Final
Determination and Amended Final Determination,\6\ Commerce based its
calculation of Zhongji's VAT adjustment on the U.S. price of Zhongji's
merchandise on resale by Jiangsu Zhongji Lamination Materials Co. (HK)
(Zhongji HK), instead of the price at which Jiangsu Zhongji Lamination
Materials, Co., Ltd., Jiangsu Zhongji Lamination Materials Stock Co.,
Ltd., and Jiangsu Huafeng Aluminum Industry Co., Ltd. (collectively,
Jiangsu Zhongji) sold the merchandise to Zhongji HK.\7\
---------------------------------------------------------------------------
\1\ See Jiangsu Zhongji Lamination Materials Co. (HK), Ltd.,
Jiangsu Zhongji Lamination Materials, Co., Ltd., Jiangsu Zhongji
Lamination Materials Stock Co., Ltd., and Jiangsu Huafeng Aluminum
Industry Co., Ltd. v. United States, Court No. 18-00091, Slip Op.
19-111 (CIT August 15, 2019) (Remand Order) at 14-22.
\2\ Id. at 24-26.
\3\ See Remand Order at 22-23.
\4\ Id. at 28-30. Commerce published the Preliminary
Determination on November 2, 2017. See Antidumping Duty
Investigation of Certain Aluminum Foil from the People's Republic of
China: Affirmative Preliminary Determination of Sales at Less Than
Fair Value and Postponement of Final Determination 82 FR 50858
(November 2, 2017 (Preliminary Determination) and accompanying
Preliminary Decision Memorandum (PDM). Commerce issued a deferral
notice on October 12, 2017. See also Certain Aluminum Foil from the
People's Republic of China: Deferral of Preliminary Determination of
the Less Than Fair Value Investigation, 82 FR 47481 (October 12,
2017); see also Certain Aluminum Foil from the People's Republic of
China: Deferral of Preliminary Determination of the Less Than Fair
Value Investigation--Correction Notice, 82 FR 48485 (October 18,
2017).
\5\ See Remand Order at n.7.
\6\ See Certain Aluminum Foil from the People's Republic of
China: Final Determination of Sales at Less Than Fair Value, 83 FR
9282 (March 5, 2018) (Final Determination), and accompanying Issues
and Decision Memorandum (IDM); see also Amended Final Determination.
\7\ See Final Determination and IDM at Comment 4.
---------------------------------------------------------------------------
In Fine Furniture I, litigation arising from the first antidumping
duty administrative review of multilayered hardwood flooring, the Court
found that Commerce failed to reconcile the deduction for irrecoverable
VAT that
[[Page 16927]]
Commerce calculated with the amounts of irrecoverable VAT that were
actually incurred upon exportation, and that Commerce's calculation was
not supported by substantial evidence on the record, remanding the case
for reconsideration.\8\ On remand, Commerce modified its VAT
calculations and found that the transfer price to respondent's
affiliate was the actual base value from which irrecoverable VAT was
calculated, because it was more appropriate to focus on achieving tax
neutrality generally, rather than determining what taxes the GOC should
have imposed.\9\ Commerce's new VAT adjustment methodology was
subsequently affirmed by this Court in Fine Furniture II.\10\ The fact
pattern in Fine Furniture I was similar to that in this case, as the
respondent had a similar selling structure and certified that China
used its transfer price to its affiliated, offshore reseller as the
basis to collect VAT.\11\ In accordance with Commerce's revised VAT
adjustment calculation methodology, on February 25, 2019, the United
States requested a voluntary remand concerning its calculation of the
VAT adjustment.\12\
---------------------------------------------------------------------------
\8\ See Fine Furniture (Shanghai) Limited, et al. v. United
States, 182 F. Supp. 3d 1350, 1358-59 (CIT 2016) (Fine Furniture I).
\9\ See Fine Furniture (Shanghai) Limited, et al. v. United
States, 321 F. Supp. 3d 1282, 1288 (CIT 2018) (Fine Furniture II)
(citing to Final Remand Redetermination pursuant to Fine Furniture
I).
\10\ Id.
\11\ See Remand Order at 27.
\12\ See Remand Order at 27 (citing Commerce's February 25, 2019
56.2 Opposition Brief at 39-40).
---------------------------------------------------------------------------
On November 12, 2019, we filed our Redetermination.\13\ In our
Redetermination, we based our calculation of the VAT adjustment on the
sale of Jiangsu Zhongji to their affiliated reseller, Zhongji HK.
---------------------------------------------------------------------------
\13\ See Final Remand Redetermination pursuant to Jiangsu
Zhongji Lamination Materials Co. (HK), Ltd., Jiangsu Zhongji
Lamination Materials, Co., Ltd., Jiangsu Zhongji Lamination
Materials Stock Co., Ltd., and Jiangsu Huafeng Aluminum Industry
Co., Ltd. v. United States, Court No. 18-00091, Slip Op. 19-111 (CIT
August 15, 2019) (Redetermination).
---------------------------------------------------------------------------
On March 9, 2020, the Court sustained Commerce's Redetermination,
and entered its final judgment.\14\
---------------------------------------------------------------------------
\14\ See Jiangsu Zhongji Lamination Materials Co. (HK), Ltd.,
Jiangsu Zhongji Lamination Materials, Co., Ltd., Jiangsu Zhongji
Lamination Materials Stock Co., Ltd., and Jiangsu Huafeng Aluminum
Industry Co., Ltd. v. United States, Court No. 18-00091, Slip Op.
20-30 (CIT March 9, 2020).
---------------------------------------------------------------------------
Timken Notice
In its decision in Timken, 893 F.2d at 341, as clarified by Diamond
Sawblades, the Federal Circuit 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 not ``in harmony'' with a Commerce
determination, and must suspend liquidation of entries pending a
``conclusive'' court decision. The Court's March 9, 2020 judgment
sustaining the Redetermination constitutes a final decision of the
Court that is not in harmony with Commerce's Amended Final
Determination and Order. This notice is published in fulfillment of the
publication requirement of Timken. Accordingly, 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.
Amended Final Determination
Because there is now a final court decision, Commerce amends the
Amended Final Determination with respect to Zhongji. The revised cash
deposit rates for the LTFV investigation, is as follows:
------------------------------------------------------------------------
Weighted average
Producer Exporter dumping margin
(percent)
------------------------------------------------------------------------
Jiangsu Zhongji Lamination Jiangsu Zhongji 48.30
Materials Stock Co., Ltd./ Lamination
Jiangsu Zhongji Lamination Materials Co.,
Materials Co., Ltd./Jiangsu (HK) Ltd.
Huafeng Aluminum Industry Co.,
Ltd.
------------------------------------------------------------------------
Cash Deposit Requirements
In accordance with section 735(c)(1)(B) of the Act, Commerce will
instruct CBP to collect a cash deposit of 48.30 percent for entries of
subject merchandise exported by Zhongji, effective March 19, 2020, in
accordance with the Timken Notice.
This notice is issued and published in accordance with sections
516(A)(e), 751(a)(1), and 777(i)(1) of the Act.
Dated: March 19, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement & Compliance.
[FR Doc. 2020-06214 Filed 3-24-20; 8:45 am]
BILLING CODE 3510-DS-P