[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.
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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