Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Notice of Third Amended Final Determination of the Results of 2012-2013 Antidumping Administrative Review Pursuant to Court Decision

Certain New Pneumatic Off-the-Road Tires From the People's Republic of China: Notice of Third Amended Final Determination of the Results of 2012-2013 Antidumping Administrative Review Pursuant to Court Decision

Publication: Federal Register
Agency: International Trade Administration
Byline: Lisa W. Wang
Date: 15 August 2023
Subjects: American Government

, Tires

[Federal Register Volume 88, Number 156 (Tuesday, August 15, 2023)]
[Notices]
[Pages 55439-55441]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-17473]

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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-912]

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

SUMMARY: On July 19, 2023, the U.S. Court of International Trade (CIT
or Court) issued its final judgment in China Manufacturers Alliance,
LLC v. United States, Consol. Court No. 15-00124, Slip Op. 23-105 (CIT
2023) (China Mfr. Alliance VI), sustaining the U.S. Department of
Commerce's (Commerce) prior remand redeterminations pertaining to the
administrative review of the antidumping duty order on certain new
pneumatic off-the-road tires (OTR tires) from the People's Republic of
China (China) covering the period September 1, 2012, through August 31,
2013, which: (1) effectuated the mandate of the U.S. Court of Appeals
for the Federal Circuit's (Federal Circuit) ruling to assign mandatory
respondent Double Coin Holdings Ltd. (Double Coin) the 105.31 percent
China-wide rate initially assigned in the final results of this review
(overturning the prior final results of redetermination pursuant to the
CIT's directive to calculate a rate for Double Coin on the basis of its
own information); and (2) sustained the prior final results of
redetermination pursuant to remand with respect to mandatory respondent
Guizhou Tyre Co., Ltd. and Guizhou Tyre Export and Import Co., Ltd.
(collectively GTC). Commerce is notifying the public that it is
amending the final results with respect to the dumping margin assigned
to Double Coin.

DATES: Applicable July 29, 2023.

FOR FURTHER INFORMATION CONTACT: Brendan Quinn, Program Manager, AD/CVD
Operations, Office III, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-5848.

SUPPLEMENTARY INFORMATION:

Background

On April 15, 2015, Commerce issued its final results in the fifth
administrative review of the antidumping duty order on OTR tires from
China.\1\ Mandatory respondent Double Coin and its affiliated U.S.
importer, China Manufacturers Alliance, LLC, and mandatory respondent
GTC timely filed complaints with the Court challenging certain aspects
of Commerce's Final Results. Domestic interested parties Titan Tire
Corporation and United Steel, Paper and Forestry, Rubber,
Manufacturing, Energy, Allied Industrial and Service Workers
International Union, AFL-CIO-CLC intervened as defendant-intervenors,
but withdrew from these cases on September 29, 2017.
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\1\ See Certain New Pneumatic Off-the-Road Tires from the
People's Republic of China: Final Results of Antidumping Duty
Administrative Review; 2012-2013, 80 FR 20197 (April 15, 2015)
(Final Results), and accompanying Issues and Decision Memorandum
(IDM); see also Certain New Pneumatic Off-the-Road Tires from the
People's Republic of China: Amended Final Results of Antidumping
Duty Administrative Review; 2012-2013, 80 FR 26230 (May 7, 2015)
(Amended Final Results) (for ease of reference, collectively
referred to herein as Final Results).
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On February 6, 2017, the CIT remanded Commerce's Final Results,
directing Commerce to: (1) further explain and reconsider the treatment
of irrecoverable value-added tax (VAT) in the calculation of the margin
for GTC; (2) further explain and reconsider whether certain movement
expenses were double-counted in the margin calculation for GTC; (3)
reconsider and recalculate warehousing cost surrogate values for GTC to
properly adjust for inflation; and (4) assign Double Coin a margin
based exclusively on Double Coin's own information, despite Double Coin
being found to be part of the non-market economy (NME) entity and
assigned the applicable 105.31 percent China-wide entity rate in the
Final Results.\2\ In its First Remand Redetermination, Commerce: (1)
continued to reduce GTC's U.S. sales prices to account for
irrecoverable VAT; (2) determined that certain, but not all, movement
expenses identified by the Court for further consideration were double
counted and removed the applicable charges from the international
freight surrogate value

[[Page 55440]]

calculation for GTC; (3) made an inflation adjustment to domestic
warehousing costs to match the surrogate value to the period of review
for GTC; and (4) assigned Double Coin a de minimis 0.14 percent margin
instead of assigning it a 105.31 percent margin as part of the China-
wide entity, under respectful protest.\3\
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\2\ See China Manufacturers Alliance, LLC et al. v. United
States, 205 F. Supp. 3d 1325 (CIT 2017) (China Mfr. Alliance I).
\3\ See Final Results of Redetermination Pursuant to Court
Remand, China Manufacturing Alliance, LLC, et al. v. United States,
Court No. 15-00124, Slip Op. 17-12 (CIT 2017), dated June 21, 2017
(First Remand Redetermination), available at https://access.trade.gov/resources/remands/17-12.pdf.
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After issuing its First Remand Redetermination, Commerce requested
a partial voluntary remand on the issue of Double Coin's margin in
light of the Federal Circuit's decision in Diamond Sawblades.\4\ On
January 16, 2019, the Court sustained, in part, and remanded, in part,
Commerce's First Remand Redetermination and denied Commerce's motion
for partial voluntary remand.\5\ Specifically, the Court sustained
Commerce's determinations regarding the inflation adjustment to
domestic warehousing costs and double-counting of certain movement
expenses for GTC but further remanded the following issues for further
reconsideration and recalculation: (1) in denying Commerce's motion for
voluntary remand, the CIT found that the only rate supported by the
record evidence that Commerce could apply to Double Coin was the 0.14
percent margin applied in the First Remand Redetermination; (2)
Commerce's finding that certain brokerage and handling and ocean
freight charges, other than those corrected in the First Remand
Redetermination, were not double counted for GTC was unsupported and
must be reconsidered; and (3) Commerce's continued reduction of GTC's
U.S. sales prices to account for irrecoverable VAT was impermissible,
and Commerce must recalculate GTC's margin without making such
deductions.\6\ In its Second Remand Redetermination, Commerce
recalculated GTC's U.S. sale prices without making deductions for
irrecoverable VAT, under respectful protest, and adjusted GTC's
brokerage and handling and ocean freight costs for certain double-
counted expenses.\7\ The CIT sustained the results of the Second Remand
Redetermination in China Mfr. Alliance III.\8\ In light of these
determinations, Commerce issued an amended final determination and
notice of court decision not in harmony with the final results of
administrative review which, after accounting for all such changes and
issues addressed in the remand redeterminations, resulted in a
weighted-average dumping margin for GTC of 4.59 percent and assigned
Double Coin a de minimis margin of 0.14 percent.\9\
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\4\ See Diamond Sawblades Mfrs. Coal. v. United States, 866 F.3d
1304 (Fed. Cir. 2017) (Diamond Sawblades).
\5\ See China Manufacturers Alliance, LLC et al. v. United
States, 357 F. Supp. 3d 1364 (CIT 2019) (China Mfr. Alliance II).
\6\ Id.
\7\ See Final Results of Redetermination Pursuant to Court
Remand, China Manufacturing Alliance, LLC, et al. v. United States,
Court No. 15-00124, Slip Op. 19-7 (CIT 2019), dated April 16, 2019
(Second Remand Redetermination), available at https://access.trade.gov/resources/remands/19-7.pdf; see also China Mfr.
Alliance III; and Notice of Court Decision Not in Harmony With Final
Results of Administrative Review and Notice of Amended Final Results
of Antidumping Duty Administrative Review, 84 FR 55553 (October 17,
2019) (Second Amended Final and Timken Notice).
\8\ See China Manufacturers Alliance, LLC et al. v. United
States, Consol. Court No. 15-00124; Slip Op. 19-115 (CIT 2019)
(China Mfr. Alliance III).
\9\ See Second Amended Final and Timken Notice.
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Upon appeal, on June 10, 2021, the Federal Circuit issued a
decision in China Manufacturers Alliance, LLC et al. v. United States,
1 F.4th 1028 (Fed. Cir. 2021) (China Mfr. Alliance IV), which reversed
and remanded the CIT's prior decision in: (1) China Mfr. Alliance I, in
which the CIT found that Commerce had to assign mandatory respondent
Double Coin a margin based exclusively on Double Coin's own
information, despite Double Coin being found to be part of the NME
entity and assigned the applicable 105.31 percent China-wide entity
rate in the Final Results and Amended Final Results, as well as; (2)
the CIT's decision in China Mfr. Alliance II to deny Commerce's request
for a motion for a partial remand to revisit the issue of the margin
calculated for Double Coin in light of the Federal Circuit's decision
regarding the China-wide entity in Diamond Sawblades, which
specifically identified the China Mfr. Alliance I decision as
incompatible with the practice of applying the NME presumption to
companies which fail to rebut the presumption of government
control.\10\ As a result, on May 16, 2023, the CIT issued a remand
order directing Commerce to reach a new determination effectuating the
mandate of the Federal Circuit's China Mfr. Alliance IV ruling by
assigning Double Coin the 105.31 percent China-wide rate.\11\ In
compliance with the Federal Circuit's determination in China Mfr.
Alliance IV and the CIT's directive to effectuate that determination in
China Mfr. Alliance V, on June 12, 2023, Commerce issued its Third
Remand Redetermination assigning the China-wide rate of 105.31 percent
as the final dumping margin applicable to Double Coin.\12\ On July 19,
2023, the CIT entered final judgement in the litigation of the
proceeding, sustaining the results of the Third Remand
Redetermination.\13\
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\10\ See China Mfr. Alliance IV.
\11\ See China Manufacturers Alliance, LLC et al. v. United
States, Consol. Court No. 15-00124, Slip Op 23-75 (CIT 2023) (China
Mfr. Alliance V).
\12\ See Final Results of Redetermination Pursuant to Court
Remand, China Manufacturing Alliance, LLC, et al. v. United States,
Court No. 15-00124, Slip Op. 23-75 (CIT 2023), dated June 12, 2023
(Third Remand Redetermination), available at https://access.trade.gov/resources/remands/23-75.pdf.
\13\ See China Mfr. Alliance VI. All issues otherwise raised in
litigation and applicable to GTC were resolved in prior remand
segments. Specifically, in China Mfr. Alliance III, the CIT
sustained: (1) Commerce's determination in the First Remand
Redetermination, to recalculate warehousing expenses for GTC, to
account for an inflation adjustment, and to exclude certain charges
from the calculation of the ocean freight surrogate value, on the
basis that both recalculations were consistent with the China Mfr.
Alliance I and were unchallenged in subsequent litigation; and (2)
Commerce's determination in the Second Remand Redetermination to
recalculate export price and constructed export price for GTC
without making deductions for irrecoverable value added taxes and
adjustment to GTC's brokerage and handling and ocean freight costs
for certain double-counted expenses. Thus, the Federal Circuit's
decision in China Mfr. Alliance IV (and subsequent China Mfr.
Alliance V, Third Remand Redetermination, and China Mfr. Alliance
VI) reverse the CIT's prior determination only with respect to the
appropriate rate applied to Double Coin, but does not reverse the
CIT's final judgment in China Mfr. Alliance III sustaining the
changes to GTC's margin calculation reflected in the First Remand
Redetermination and Second Remand Redeterminations. Thus, GTC's
final margin calculation of 4.59 percent, as reflected in the prior
Second Amended Final and Timken Notice, remains unchanged.
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Amended Final Results

Because there is now a final court judgment, Commerce is amending
its Final Results with respect to mandatory respondent Double Coin as
follows:

------------------------------------------------------------------------
Weighted-
average
Exporter dumping margin
(percent)
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Double Coin Holdings Ltd............................... 105.31
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Cash Deposit Requirements

Because the antidumping duty order on OTR Tires from China was
revoked,\14\ Commerce will not issue cash deposit instructions as a
result of this Court decision.
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\14\ See Certain New Pneumatic Off-the-Road Tires from the
People's Republic of China: Final Results of Sunset Reviews and
Revocation of Antidumping Duty and Countervailing Duty Orders, 84 FR
20616 (May 10, 2019).

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[[Page 55441]]

Liquidation of Suspended Entries

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 U.S. Customs and Border Protection to assess antidumping
duties on unliquidated entries of subject merchandise exported by
Double Coin in accordance with 19 CFR 351.212(b) at the rate listed
above.

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 9, 2023.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2023-17473 Filed 8-14-23; 8:45 am]
BILLING CODE 3510-DS-P