[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]


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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\
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    \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.
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    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\
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    \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).
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    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.
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    \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).
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    On March 9, 2020, the Court sustained Commerce's Redetermination, 
and entered its final judgment.\14\
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    \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).
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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.
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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