[Federal Register Volume 89, Number 19 (Monday, January 29, 2024)]
[Notices]
[Pages 5491-5493]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2024-01713]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-821-825]


Phosphate Fertilizers From the Russian Federation: Notice of 
Court Decision Not in Harmony With the Final Determination of 
Countervailing Duty Investigation; Notice of Amended Final 
Determination and Amended Countervailing Duty Order

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

SUMMARY: On January 19, 2024, the U.S. Court of International Trade 
(CIT) issued its final judgment in The Mosaic Company v. United States, 
Consol. Court No. 21-00117, sustaining the U.S. Department of 
Commerce's (Commerce) remand redetermination pertaining to the 
countervailing duty (CVD) investigation of phosphate fertilizers from 
the Russian Federation (Russia) covering the period of investigation, 
January 1, 2019, through December 31, 2019. 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 countervailable subsidy rates assigned to Industrial 
Group Phosphorite LLC (EuroChem), Joint Stock Company Apatit (JSC 
Apatit), and all others.

DATES: Applicable January 29, 2024.

[[Page 5492]]


FOR FURTHER INFORMATION CONTACT: Shane Subler or William Horn, AD/CVD 
Operations, Office VIII, Enforcement and Compliance, International 
Trade Administration, U.S. Department of Commerce, 1401 Constitution 
Avenue NW, Washington, DC 20230; telephone: (202) 482-6241 or (202) 
482-4868, respectively.

SUPPLEMENTARY INFORMATION:

Background

    On February 16, 2021, Commerce published its final determination in 
the CVD investigation of phosphate fertilizers from Russia.\1\ Commerce 
calculated countervailable subsidy rates of 47.05 percent for EuroChem, 
9.19 percent for JSC Apatit, and 17.20 percent for all other producers/
exporters of phosphate fertilizers in Russia.\2\ Commerce subsequently 
published the CVD order on phosphate fertilizers from Russia.\3\
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    \1\ See Phosphate Fertilizers from the Russian Federation: Final 
Affirmative Countervailing Duty Determination, 86 FR 9479 (February 
16, 2021) (Final Determination), and accompanying Issues and 
Decision Memorandum.
    \2\ Id., 86 FR at 9480.
    \3\ See Phosphate Fertilizers from the Kingdom of Morocco and 
the Russian Federation: Countervailing Duty Orders, 86 FR 18037 
(April 7, 2021) (Order).
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    JSC Apatit, EuroChem, and the petitioner \4\ appealed Commerce's 
Final Determination. On September 2, 2022, the CIT remanded the Final 
Determination to Commerce, directing Commerce to: (1) adjust the final 
total sales calculation for EuroChem to the proper figures and explain 
the calculation; (2) either remove the added value-added tax (VAT) and 
import duties from the natural gas benchmark price or offer further 
explanation for why, when tier one and tier two benchmark prices are 
rejected, it was reasonable to add additional VAT and import duties; 
and (3) either explain why Commerce was unable to countervail recurring 
subsidies from mining licenses granted by the Government of Russia 
(GOR) prior to Russia's designation as a market economy on April 1, 
2002, or abandon the cut-off date methodology.\5\
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    \4\ The petitioner is The Mosaic Company.
    \5\ See The Mosaic Company, et al v. United States, Consol. 
Court No. 21-00117, Slip Op. 22-103 (CIT September 2, 2022) (First 
Remand Order), at 33-34, 39, and 41.
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    In the First Remand Results, issued in December 2022, Commerce 
adjusted the final total sales calculation to the proper figures and 
explained the calculation further, removed the added VAT and import 
duties from the natural gas benchmark price, and revised the subsidy 
calculation for the Provision of Mining Rights for Less Than Adequate 
Remuneration (LTAR) program by countervailing recurring subsidies from 
mining licenses granted by the GOR prior to Russia's designation as a 
market economy on April 1, 2002.\6\ Consequently, Commerce made changes 
to EuroChem's and JSC Apatit's final subsidy rates from the 
investigation, as well as the all-others rate.\7\
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    \6\ See Final Results of Redetermination Pursuant to Court 
Remand, The Mosaic Company, Phosagro PJSC, JSC Apatit, Industrial 
Group Phosphorite LLC v. United States, The Mosaic Company, Phosagro 
PSJC, JSC Apatit, Industrial Group Phosphorite LLC, Consol. Court 
No. 21-00117 (CIT September 2, 2022), dated December 16, 2022 (First 
Remand Results), available at https://access.trade.gov/resources/remands/22-103.pdf.
    \7\ Id. at 33.
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    In its Second Remand Order, issued on July 11, 2023, the CIT 
remanded certain aspects of Commerce's First Remand Results for further 
explanation or reconsideration.\8\ Specifically, the CIT directed 
Commerce to: (1) explain why reconciling phosphate rock cost 
information to the financial statements of JSC Apatit's parent company, 
PhosAgro PJSC, was sufficient, or seek further information from JSC 
Apatit; (2) explain why it found a submission by EuroChem to be 
supported, and respond to the petitioner's specific objections 
regarding this submission; and (3) explain the selection of profit 
before tax in the benefit calculation for the GOR's provision of mining 
rights.\9\
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    \8\ See The Mosaic Company v. United States, Consol. Court No. 
21-00117, Slip Op. 23-99 (CIT July 11, 2023) (Second Remand Order).
    \9\ See Second Remand Order at 16-20.
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    On October 11, 2023, Commerce issued the Second Remand Results.\10\ 
In the Second Remand Results, Commerce: (1) explained how JSC Apatit 
reconciled its phosphate rock cost information to its financial 
statements in a submission filed after the First Remand Results; (2) 
explained how a translated submission by EuroChem after the First 
Remand Results supported the cost reconciliations that it previously 
provided; and (3) explained why the use of profit before tax in the 
benefit calculation for the Provision of Mining Rights for LTAR program 
was appropriate.\11\ Based on this analysis, Commerce made no changes 
to the subsidy rates calculated for EuroChem, JSC Apatit, and all 
others in the First Remand Results.\12\ On January 19, 2024, the CIT 
sustained Commerce's Second Remand Results.\13\
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    \10\ See Final Results of Redetermination Pursuant to Court 
Remand, The Mosaic Company, Phosagro PJSC, JSC Apatit, Industrial 
Group Phosphorite LLC v. United States, The Mosaic Company, Phosagro 
PSJC, JSC Apatit, Industrial Group Phosphorite LLC, Consol. Court 
No. 21-00117 (CIT July 11, 2023), dated October 11, 2023 (Second 
Remand Results), available at https://access.trade.gov/resources/remands/23-99.pdf.
    \11\ See, generally, id.
    \12\ Id. at 31.
    \13\ See The Mosaic Company v. United States, Consol. Court No. 
21-00117, Slip Op. 24-04 (CIT January 19, 2024).
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Timken Notice

    In its decision in Timken,\14\ as clarified by Diamond 
Sawblades,\15\ the Court of Appeals for the Federal Circuit held that, 
pursuant to sections 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 January 19, 2024, 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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    \14\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (Timken).
    \15\ See Diamond Sawblades Manufacturers Coalition v. United 
States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Determination

    Because there is now a final court judgment, Commerce is amending 
its Final Determination with respect to EuroChem, JSC Apatit, and all 
others as follows:
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    \16\ See First Remand Results at 33.
    \17\ Commerce found the following companies to be cross-owned 
with EuroChem in the Final Determination: Mineral and Chemical 
Company EuroChem, JSC; NAK Azot, JSC; EuroChem Northwest, JSC; Joint 
Stock Company Kovdorksy GOK; EuroChem-Energo, LLC; EuroChem-Usolsky 
Potash Complex, LLC; EuroChem-BMU, LLC; JSC Nevinnomyssky Azot; and 
EuroChem Trading Rus, LLC. See Final Determination, 87 FR at 9480.
    \18\ Commerce found the following companies to be cross-owned 
with JSC Apatit in the Final Determination: PhosAgro PJSC; PhosAgro-
Belgorod LLC; PhosAgro-Don LLC; PhosAgro-Kuban LLC; PhosAgro-Kursk 
LLC; PhosAgro-Lipetsk LLC; PhosAgro-Orel LLC; PhosAgro-Stavropol 
LLC; PhosAgro-Volga LLC; PhosAgro-SeveroZapad LLC; PhosAgro-Tambov 
LLC; and Martynovsk AgrokhimSnab LLC. See Final Determination, 87 FR 
at 9480.

------------------------------------------------------------------------
                                                           Subsidy rate
                         Company                           \16\ (percent
                                                            ad valorem)
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EuroChem \17\...........................................           23.77
JSC Apatit \18\.........................................           14.30
All Others..............................................           16.30
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Amended CVD Order

    Because there is now a final court decision, Commerce is amending 
its Final Determination and Order. As a result of this amended final 
determination, Commerce is hereby

[[Page 5493]]

updating JSC Apatit's and EuroChem's ad valorem subsidy rates. 
Additionally, because the all-others rate was based on JSC Apatit's and 
EuroChem's rates, Commerce is also updating the all-others rate.

Cash Deposit Requirements

    For EuroChem and all others, Commerce will issue revised cash 
deposit instructions to U.S. Customs and Border Protection (CBP). For 
JSC Apatit, however, the cash deposit rate has been superseded by the 
cash deposit rate calculated in the subsequent administrative review of 
the CVD order on phosphate fertilizers from Russia.\19\ Thus, we are 
not implementing an amended cash deposit rate for JSC Apatit. This 
notice will not affect the current cash deposit rate for JSC Apatit.
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    \19\ See Phosphate Fertilizers from the Russian Federation: 
Final Results of Countervailing Duty Administrative Review; 2020-
2021, 88 FR 76182 (November 6, 2023).
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Liquidation of Suspended Entries

    At this time, Commerce remains enjoined by CIT order from 
liquidating entries that were produced and/or exported by JSC Apatit 
and certain cross-owned companies \20\ that were entered, or withdrawn 
from warehouse, during the period November 30, 2020, through December 
31, 2021. These entries will remain enjoined pursuant to the terms of 
the injunction during the pendency of any appeals process.
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    \20\ These cross-owned companies are PhosAgro Public Joint Stock 
Company; Limited Liability Company PhosAgro-Region; Limited 
Liability Company PhosAgro-Belgorod; Limited Liability Company 
PhosAgro-Don; Limited Liability Company PhosAgro-Kuban; Limited 
Liability Company PhosAgro-Lipetsk; Limited Liability Company 
PhosAgro-Kursk; Limited Liability Company PhosAgro-Orel; Limited 
Liability Company PhosAgro-Stavropol; Limited Liability Company 
PhosAgro-Volga; Limited Liability Company PhosAgro-SeveroZapad; 
Limited Liability Company PhosAgro-Tambov; and Limited Liability 
Company PhosAgro-Sibir.
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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: January 23, 2024.
Abdelali Elouaradia,
Deputy Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2024-01713 Filed 1-26-24; 8:45 am]
BILLING CODE 3510-DS-P