[Federal Register Volume 88, Number 166 (Tuesday, August 29, 2023)]
[Notices]
[Pages 59505-59506]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18573]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-351-842]


Certain Uncoated Paper From Brazil: Notice of Court Decision Not 
in Harmony With the Results of Antidumping Duty Administrative Review; 
Notice of Amended Final Results

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

SUMMARY: On August 18, 2023, the U.S. Court of International Trade 
(CIT) issued its final judgment in Suzano S.A. v. United States, Court 
No. 21-00069, sustaining the U.S. Department of Commerce (Commerce)'s 
second remand results pertaining to the review of the antidumping duty 
(AD) order on certain uncoated paper (paper) from Brazil covering the 
period March 1, 2018, through February 28, 2019. 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 dumping 
margin assigned to Suzano S.A. (Suzano).

DATES: Applicable August 28, 2023.

FOR FURTHER INFORMATION CONTACT: Rachel Jennings, 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) 482-1110.

SUPPLEMENTARY INFORMATION:

Background

    On January 27, 2021, Commerce published its final results in the 
2018-2019 AD administrative review of paper from Brazil. Commerce 
declined to rely on Suzano's proposed financial expense ratio 
calculation that excluded the derivative losses associated with its 
acquisition of Fibria Celulose S.A. (Fibria), a pulp producer in 
Brazil, for calculating Suzano's cost of production (COP).\1\ In the 
Final Results, Commerce calculated a weighted-average dumping margin of 
32.31.\2\
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    \1\ See Certain Uncoated Paper from Brazil: Final Results of 
Antidumping Duty Administrative Review; 2018-2019, 86 FR 7254 
(January 27, 2021) (Final Results), and accompanying Issues and 
Decision Memorandum (IDM) at Comment 1.
    \2\ Id. 86 FR 7254.
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    Suzano appealed Commerce's Final Results. On August 16, 2022, the 
CIT remanded the Final Results to Commerce, holding that Commerce's 
rationale \3\ for declining to rely on Suzano's proposed financial 
expense ratio calculation was unsupported by substantial evidence.\4\ 
Accordingly, the CIT instructed Commerce to provide further 
explanation, and, if appropriate, to reconsider the agency's cost 
analysis pursuant to section 773(f)(1)(A) of the Tariff Act of 1930, as 
amended (the Act).\5\
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    \3\ In the Final Results, we explained: ``While it is Commerce's 
practice to exclude only investment-related gains or losses from the 
calculation of cost of production, the capital management mechanisms 
practiced by Suzano by way of these derivative transactions are 
reasonably associated with the company's cost of borrowing. . . . 
Moreover, we disagree with Suzano's claim that these derivative 
expenses are extraordinary and stem from an isolated event. . . . 
Here, the auditors who issued an unqualified opinion on Suzano's 
financial statements did not classify the derivative expenses as 
extraordinary.'' See Final Results IDM at 5 (internal citations 
omitted).
    \4\ See Suzano S.A. v. United States, 589 F. Supp. 3d 1225, 1233 
(CIT 2022).
    \5\ Id. at 1237.
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    In its first remand redetermination, issued in November 2022, 
Commerce made no changes to the Final Results, but provided additional 
explanation regarding its decision not to modify Suzano's COP to 
exclude the derivative losses from the financial expense ratio.\6\ The 
CIT remanded for a second time, holding that, while Commerce's 
determination that Suzano's derivative losses were not investment-
related costs was supported by substantial evidence and in accordance 
with the CIT's remand instructions, the determination that Suzano's 
derivative losses were not extraordinary was not supported by 
substantial evidence.\7\ Therefore, the CIT remanded to Commerce for 
further explanation, and if appropriate, reconsideration, of the 
determination that Suzano's derivative expenses were not extraordinary 
for purposes for the COP calculation.\8\
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    \6\ See Final Results of Redetermination Pursuant to Court 
Remand, Suzano S.A. v. United States, Court No. 21-00069, Slip-Op 
22-95, dated November 14, 2022, available at https://access.trade.gov/Resources/remands/22-95.pdf.
    \7\ See Suzano S.A. v. United States, 633 F.Supp.3d 1232, 1238 
(CIT 2023).
    \8\ Id. at 1243.
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    In its final remand redetermination, issued in July 2023, Commerce 
further explained why it considers Suzano's derivative losses to be a 
result of an expansion of the company's normal operations, and, 
therefore, not extraordinary.\9\ However, upon further review of the 
facts at issue, Commerce determined that it was appropriate to revise 
Suzano's financial expense ratio to include Fibria's financial expenses 
and cost of sales.\10\ Therefore, Commerce calculated a weighted-
average dumping margin of 8.63 percent.\11\ The CIT sustained 
Commerce's final redetermination.\12\
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    \9\ See Final Results of Redetermination Pursuant to Court 
Remand, Suzano S.A. v. United States, Court No. 21-00069, Slip Op. 
23-56, dated July 20, 2023, at 5-11.
    \10\ Id. at 10.
    \11\ Id. at 24-25.
    \12\ See Suzano S.A. v. United States, Court No. 21-00069, Slip 
Op. 23-117 (CIT August 18, 2023).
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Timken Notice

    In its decision in Timken,\13\ as clarified by Diamond 
Sawblades,\14\ the U.S. Court of Appeals for the Federal Circuit held 
that, pursuant to sections 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 August 18, 2023, 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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    \13\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (Timken).
    \14\ 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 Suzano as follows:

[[Page 59506]]



------------------------------------------------------------------------
                                                      Final results of
                                                      redetermination
                Exporter/producer                     weighted-average
                                                       dumping margin
                                                         (percent)
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Suzano S.A.......................................                  8.63
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Cash Deposit Requirements

    Because Suzano 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 exported by Suzano, and 
were entered, or withdrawn from warehouse, for consumption during the 
period March 1, 2018, through February 28, 2019. 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 antidumping duties on unliquidated entries of 
subject merchandise produced and exported by Suzano in accordance with 
19 CFR 351.212(b). We will instruct CBP to assess antidumping duties on 
all appropriate entries covered by this review when the importer-
specific ad valorem assessment rate is not zero or de minimis. Where an 
importer-specific ad valorem assessment rate is zero or de minimis,\15\ 
we will instruct CBP to liquidate the appropriate entries without 
regard to antidumping duties.
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    \15\ 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: August 23, 2023.
Abdelali Elouaradia,
Deputy Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2023-18573 Filed 8-28-23; 8:45 am]
BILLING CODE 3510-DS-P