[Federal Register Volume 86, Number 95 (Wednesday, May 19, 2021)]
[Notices]
[Pages 27067-27069]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2021-10675]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-570-991]


Chlorinated Isocyanurates From the People's Republic of China: 
Notice of Court Decision Not in Harmony With the Results of 
Countervailing Duty Administrative Review; Notice of Amended Final 
Results

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

SUMMARY: On May 6, 2021, the U.S. Court of International Trade (CIT) 
issued its final judgment in Clearon Corporation et al v. United 
States, Consol. Court No. 17-00171, sustaining the Department of 
Commerce (Commerce)'s final remand results pertaining to the 
administrative review of the countervailing duty (CVD) order on 
chlorinated isocyanurates (chlorinated isos) from the People's Republic 
of China (China) covering the period February 4, 2014, through December 
31, 2014. Commerce is notifying the public that the CIT's final 
judgment is not in harmony with Commerce's final results of the 
administrative review, and that Commerce is amending the final results 
with respect to the countervailable subsidy rate assigned to Heze Huayi 
Chemical Co., Ltd. (Heze Huayi).

DATES: Applicable May 17, 2021.

[[Page 27068]]


FOR FURTHER INFORMATION CONTACT: Justin Neuman, AD/CVD Operations, 
Office V, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-0486.

SUPPLEMENTARY INFORMATION:

Background

    On June 15, 2017, Commerce published its Final Results in the 2014 
CVD administrative review of chlorinated isos from China.\1\ In the 
Final Results, Commerce determined that the use of adverse facts 
available (AFA) under sections 776(a) and (b) of the Tariff Act of 
1930, as amended (the Act), was warranted in determining the 
countervailability of the Export Buyer's Credit Program, because the 
Government of China (GOC) had failed to provide the necessary 
information Commerce required to analyze the program.\2\ Commerce also 
determined that it could not rely on statements of non-use provided by 
the respondents and their customers because of the GOC's failure to 
provide the necessary information with respect to the operation of the 
program.\3\ Consistent with Commerce's CVD AFA hierarchy, Commerce 
selected the highest calculated rate for the same or similar program as 
the AFA rate for this program, 0.87 percent, in accordance with section 
776(d) of the Act and Commerce's established practice.\4\ Commerce 
calculated a total net subsidy rate of 1.91 percent for Heze Huayi.\5\
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    \1\ See Chlorinated Isocyanurates from the People's Republic of 
China: Final Results of Countervailing Duty Administrative Review, 
and Partial Rescission of Countervailing Duty Administrative Review; 
2014, 82 FR 27466 (June 15, 2017) (Final Results), and accompanying 
Issues and Decision Memorandum.
    \2\ Id. at Comment 2.
    \3\ Id.
    \4\ Id.
    \5\ See Final Results, 82 FR at 27467.
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    Heze Huayi appealed Commerce's Final Results. On January 25, 2019, 
Commerce's rate selection for the Export Buyer's Credit Program was 
sustained by the CIT in Clearon I.\6\ However, in Clearon I, the CIT 
also remanded the Final Results to Commerce with four specific 
instructions: (1) Explain why certain requested information ``is 
necessary to make a determination of whether the `manufacture, 
production, or export' of {Heze Huayi's{time}  merchandise has been 
subsidized, pursuant to {section 701(a) of the Act{time} ,'' and 
``{i{time} n doing so, Commerce shall tie its inquiries to {Heze 
Huayi{time} , its products, and/or its customers;'' (2) ``either 
provide an adequate answer relating to why the information it seeks `to 
fully understand the operation of the program' fills a gap as to {Heze 
Huayi's{time}  products and their sale, or rely on the information it 
has on the record;'' (3) ``comply with the statute by tying its facts 
available and adverse facts available determinations to Heze Huayi, its 
products, or its customers;'' and (4) ``support with substantial 
evidence its necessary conclusion that there were gaps in the record 
evidence that could only be filled with the GOC's responses to its 
questionnaires.'' \7\
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    \6\ See Clearon Corp. v. United States, 359 F. Supp. 3d 1344, 
1361-62 (CIT 2019) (Clearon I).
    \7\ Id., 359 F. Supp. 3d at 1363.
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    In its first remand redetermination, issued in May 2019, Commerce 
continued to find that, without the information that the GOC withheld 
about the operation of the Export Buyer's Credit Program, the use of 
facts available was required because ``necessary'' information was 
missing from the record, under section 776(a) of the Act.\8\ Commerce 
further found that the application of an adverse inference was 
justified because the GOC failed to cooperate with Commerce's 
information requests to ``the best of its ability.'' \9\ Using AFA, 
Commerce thus determined that Heze Huayi used and benefitted from the 
Export Buyer's Credit Program, and we continued to use 0.87 percent as 
the AFA rate for the program.\10\ In response to the CIT's instruction, 
Commerce explained why it was necessary to know whether the China 
Export Import Bank uses third-party banks to disburse/settle export 
buyer's credits, stating that conducting ``a thorough verification of 
Heze Huayi's customers' nonuse of this program without understanding 
the identity of these correspondent banks would be unreasonably 
onerous, if not impossible.'' \11\
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    \8\ See Final Results of Redetermination Pursuant to Court 
Remand, Clearon Corp. v. United States, Court No. 17-00171, Slip Op. 
19-13, dated May 16, 2019 at 38 and Comment 2, https://enforcement.trade.gov/remands/19-13.pdf.
    \9\ Id. at 29-30.
    \10\ Id. at 40.
    \11\ Id. at 27-28.
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    In October 2020, the CIT again remanded Commerce's decision with 
respect to the Export Buyer's Credit Program.\12\ The CIT noted that it 
had previously rejected Commerce's position that information about the 
operation of the Export Buyer's Credit Program is necessary for it to 
verify a respondent's claimed non-use of the program.\13\ The CIT 
remanded Commerce's decision for a second time, instructing Commerce 
and Heze Huayi ``to confer and jointly devise a procedure . . . by 
which {Commerce{time}  can conduct verification of the declarations of 
non-use.'' \14\ Alternatively, the CIT stated that Commerce may find, 
based on existing record evidence, ``that neither {Heze Huayi{time}  
nor its customers used or received a benefit under the program.'' \15\
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    \12\ See Clearon Corp. v. United States, Court No. 17-00171, 
Slip-Op. 20-141, (CIT 2020).
    \13\ Id. at 20 (citing Guizhou Tyre Co. v. United States, 348 F. 
Supp. 3d 1261, 1270 (CIT 2018)).
    \14\ Id.
    \15\ Id.
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    In its final remand redetermination, issued in January 2021, 
Commerce found, under respectful protest,\16\ that there was no use of 
the Export Buyer's Credit Program with respect to Heze Huayi in this 
review and removed the subsidy rate for the Export Buyer's Credit 
Program from Heze Huayi's final CVD subsidy rate, resulting in a 1.04 
percent rate for Heze Huayi.\17\ On May 6, 2021, the CIT sustained 
Commerce's final redetermination.\18\
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    \16\ See Viraj Group, Ltd. v. United States, 343 F.3d 1371, 1376 
(Fed. Cir. 2003).
    \17\ See Final Results of Redetermination Pursuant to Court 
Remand, Clearon Corp. v. United States, Court No. 17-00171, Slip Op. 
20-141, dated January 4, 2021, at 9, available at https://enforcement.trade.gov/remands/20-141.pdf.
    \18\ See Clearon Corp. v. United States, Consol. Court No. 17-
00171, Slip Op. 21-56 (CIT 2021).
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Timken Notice

    In its decision in Timken,\19\ as clarified by Diamond 
Sawblades,\20\ the Court of Appeals for the Federal Circuit held that, 
pursuant to section 516A(c) and (e) of 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 May 6, 2021, judgment 
constitutes a final decision of the CIT that is not in harmony with 
Commerce's Final Results. Thus, this notice is published in fulfillment 
of the publication requirements of Timken.
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    \19\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (Timken).
    \20\ See Diamond Sawblades Manufacturers Coalition v. United 
States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Results

    Because there is now a final court judgment, Commerce is amending 
its Final Results with respect to Heze Huayi as follows:

------------------------------------------------------------------------
                                                           Subsidy rate
                         Company                            (percent ad
                                                             valorem)
------------------------------------------------------------------------
Heze Huayi Chemical Co., Ltd............................            1.04
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[[Page 27069]]

Cash Deposit Requirements

    Because Heze Huayi has a superseding cash deposit rate, i.e., there 
have been final results published in a subsequent administrative 
review, we will not issue revised cash deposit instructions to U.S. 
Customs and Border Protection (CBP). This notice will not affect the 
current cash deposit rate.

Liquidation of Suspended Entries

    At this time, Commerce remains enjoined by CIT order from 
liquidating entries that: Were produced and/or exported by Heze Huayi, 
and were entered, or withdrawn from warehouse, for consumption during 
the period February 4, 2014, through December 31, 2014. These entries 
will remain enjoined pursuant to the terms of the injunction during the 
pendency of any appeals process.
    In the event the CIT's ruling is not appealed, or, if appealed, 
upheld by a final and conclusive court decision, Commerce intends to 
instruct CBP to assess countervailing duties on unliquidated entries of 
subject merchandise produced and/or exported by Heze Huayi in 
accordance with 19 CFR 351.212(b). We will instruct CBP to assess 
countervailing duties on all appropriate entries covered by this review 
when the ad valorem rate is not zero or de minimis. Where an ad valorem 
subsidy rate is zero or de minimis,\21\ we will instruct CBP to 
liquidate the appropriate entries without regard to countervailing 
duties.
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    \21\ See 19 CFR 351.106(c)(2).
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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: May 14, 2021.
Christian Marsh,
Acting Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2021-10675 Filed 5-18-21; 8:45 am]
BILLING CODE 3510-DS-P