Notice2021-26998
Certain Steel Wheels 12 to 16.5 Inches in Diameter From the People's Republic of China: Notice of Court Decision Not in Harmony With the Final Determination of Countervailing Duty Investigation and Notice of Amended Final Countervailing Duty Determination
Primary source
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Published
December 13, 2021
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
On November 18, 2021, the U.S. Court of International Trade (CIT) issued its final judgment in Trans Texas Tire, LLC and Zhejiang Jingu Company Limited v. United States, Consol. Court No. 19-00189, Slip Op. 21-157 (CIT November 18, 2021) sustaining the Department of Commerce (Commerce)'s remand redetermination pertaining to the countervailing duty (CVD) investigation of certain steel wheels 12 to 16.5 inches in diameter (certain steel wheels) from the People's Republic of China (China). 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 CVD margin assigned to entries of certain steel trailer wheels 12 to 16.5 inches in diameter coated in chrome through a Physical Vapor Deposition (PVD) process produced and/or exported from the China by Zhejiang Jingu Company Limited (Jingu), or produced by Xingmin Intelligent Transportation Systems (Group) (Xingmin Intelligent) and imported by Trans Texas Tire LLC (Trans Texas).
Full Text
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<title>Federal Register, Volume 86 Issue 236 (Monday, December 13, 2021)</title>
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[Federal Register Volume 86, Number 236 (Monday, December 13, 2021)]
[Notices]
[Pages 70826-70828]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2021-26998]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-091]
Certain Steel Wheels 12 to 16.5 Inches in Diameter From the
People's Republic of China: Notice of Court Decision Not in Harmony
With the Final Determination of Countervailing Duty Investigation and
Notice of Amended Final Countervailing Duty Determination
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On November 18, 2021, the U.S. Court of International Trade
(CIT) issued its final judgment in Trans Texas Tire, LLC and Zhejiang
Jingu Company Limited v. United States, Consol. Court No. 19-00189,
Slip Op. 21-157 (CIT November 18, 2021) sustaining the Department of
Commerce (Commerce)'s remand redetermination pertaining to the
countervailing duty (CVD) investigation of certain steel wheels 12 to
16.5 inches in diameter (certain steel wheels) from the People's
Republic of China (China). 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 CVD
margin assigned to entries of certain steel trailer wheels 12 to 16.5
inches in diameter coated in chrome through a Physical Vapor Deposition
(PVD) process produced and/or exported from the China by Zhejiang Jingu
Company Limited (Jingu), or produced by Xingmin Intelligent
Transportation Systems (Group) (Xingmin Intelligent) and imported by
Trans Texas Tire LLC (Trans Texas).
DATES: Applicable November 29, 2021.
FOR FURTHER INFORMATION CONTACT: Brendan Quinn, 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 July 9, 2019, Commerce published its final determination in the
CVD investigation of certain steel wheels China.\1\ Commerce
subsequently published the CVD order on certain steel wheels from
China.\2\
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\1\ See Certain Steel Trailer Wheels 12 to 16.5 Inches in
Diameter from the People's Republic of China: Final Affirmative
Countervailing Duty Determination, and Final Affirmative
Determination of Critical Circumstances, 84 FR 32723 (July 9, 2019)
(Final Determination).
\2\ See Certain Steel Trailer Wheels 12 to 16.5 Inches from the
People's Republic of China: Antidumping Duty and Countervailing Duty
Orders, 84 FR 45952 (September 3, 2019) (Order).
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As initiated, the scope of the underlying investigation excluded
``certain on the road steel wheels that are coated entirely with
chrome.'' \3\ This scope exclusion remained unchanged in the CVD
preliminary determination published on February 25, 2019.\4\ Subsequent
to the Preliminary Determination, though prior to the preliminary
determination in the less-than-fair-value (LTFV) investigation, Dexstar
Wheel Division of Americana Development, Inc. (the petitioner) filed
additional scope comments regarding the exclusion of chrome wheels,
specifically requesting that Commerce confirm that the chrome wheel
exclusion did not include PVD chrome wheels.\5\ However, due to the
proximity of the date on which the petitioner's comments (and relevant
rebuttal
[[Page 70827]]
comments) were received relative to the statutory deadline for the
issuance of the LTFV preliminary determination, Commerce deferred
consideration of the petitioner's comments to the final determinations
of the LTFV and CVD investigations.\6\ Accordingly, the scope language
in Commerce's Initiation Notice and Preliminary Determination did not
explicitly address whether the scope exclusion for steel wheels coated
entirely with chrome covered PVD chrome wheels.
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\3\ See Certain Steel Wheels 12 to 16.5 Inches in Diameter from
the People's Republic of China: Initiation of Countervailing Duty
Investigation, 83 FR 45100 (September 5, 2018) (Initiation Notice).
\4\ See Certain Steel Wheels 12 to 16.5 Inches in Diameter from
the People's Republic of China: Preliminary Affirmative
Countervailing Duty Determination, 84 FR 5989 (February 25, 2019)
(Preliminary Determination) at Appendix 1.
\5\ See Petitioner's Letter, ``Certain Steel Wheels (12 to 16.5
Inches in Diameter) from China: Petitioner's Clarification of the
Exclusion of Chrome Wheels,'' dated March 28, 2019.
\6\ See Memorandum, ``Certain Steel Wheels 12 to 16.5 Inches in
Diameter from the People's Republic of China: Preliminary Scope
Decision Memorandum,'' dated April 15, 2019.
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Based on the petitioner's scope comments, Commerce solicited
additional information with respect to PVD chrome wheels, and parties
provided further information and argumentation in response. Commerce
then evaluated the record with respect to this issue for the first time
in its Final Scope Memo, finding with respect to PVD chrome wheels
that:
based on evidence and information in the Petition, we find that the
petitioner intended the exclusion to cover electroplated chrome
wheels and was not intended to cover other types of chrome-adhering
processes; nor were other types of chrome adhering processes, such
as PVD, considered anywhere on the record prior to the respondent
party's clarification request, in which case the petitioner promptly
and consistently maintained its intent with respect to the chrome
exclusion language. Thus, we do not find that limiting the exclusion
to electroplating expands the scope, as the exclusion was never
meant to cover PVD chrome wheels and, therefore, carving out an
exception for PVD wheels from the exclusion is a clarification and
not an impermissible expansion of the scope.\7\
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\7\ See Memorandum, ``Certain Steel Wheels from the People's
Republic of China: Final Scope Decision Memorandum for the Final
Antidumping Duty and Countervailing Duty Determinations,'' dated
July 1, 2019 (Final Scope Memo) at 15.
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Accordingly, the scope of the Final Determination and resulting CVD
order provided the following with respect to chrome-coated wheels:
Excluded from this scope are the following: . . . (3) certain
on-the-road steel wheels that are coated entirely in chrome. This
exclusion is limited to chrome wheels coated entirely in chrome and
produced through a chromium electroplating process, and does not
extend to wheels that have been finished with other processes,
including, but not limited to, Physical Vapor Deposition
(PVD){.{time}
Further, in the Final Scope Memo, Commerce noted that ``the
clarification that the exclusion in the scope for chrome wheels does
not cover PVD chrome wheels is a clarification, based on the
petitioner's original intent in the Petition, not an expansion of the
scope. Thus, PVD chrome wheels are subject to duties from the start of
suspension of liquidation, which was the preliminary determinations,''
and declined to revise the scope language to specify that the
clarification of the exclusion for chrome wheels applies only to
entries following the Final Determination.\8\
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\8\ Id. at 16.
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Trans Texas and Jingu challenged Commerce's scope determination
before the CIT, arguing that Commerce unlawfully expanded the scope of
the CVD investigation (and resulting order) to include PVD chrome
wheels. Trans Texas and Jingu further argued that, even if the
inclusion of PVD chrome wheels was lawful, Commerce erred by
retroactively assessing countervailing duties on PVD chrome wheel
imports back to the date of its Preliminary Determination.
In its Remand Order, the Court determined that, while Commerce
adequately explained its decision to include in the final scope of the
investigation steel trailer wheels coated in chrome through a PVD
process, countervailing duties on PVD chrome wheels retroactively
imposed back to the date of Commerce's preliminary determination were
not imposed in accordance with law.\9\ In particular, the Court held
that retroactive assessment of duties back to the date of Commerce's
preliminary determination was impermissible because Commerce did not
provide adequate notice of the inclusion of PVD chrome wheels prior to
the Final Scope Memo \10\ and, thus, remanded the Final Determination
for Commerce to reformulate its instructions consistent with the Remand
Order.\11\
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\9\ See Trans Texas Tire, LLC and Zhejiang Jingu Company Limited
v. United States, Consol. Court No. 19-00189, Slip Op. 21-63 (CIT
May 18, 2021) (Remand Order) at 16 and 20-21.
\10\ See Final Scope Memo.
\11\ See Remand Order at 21-22 and 26.
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On June 14, 2021, Commerce issued its Final Results of
Redetermination, noting our intent to issue an amended final
determination to clarify the date of imposition of countervailing
duties to be the date of publication of the Final Determination and to
issue instructions to U.S. Customs and Border Protection (CBP) with
respect to Trans Texas and Jingu providing that entries of PVD chrome
wheels entered, or withdrawn from warehouse, for consumption on or
after February 25, 2019, up to July 8, 2019, are excluded from the
scope of the investigation, consistent with the Court's Remand
Order.\12\ These instructions give effect to the Court's holding that
``reasonably informed importers were not provided clear or meaningful
notice of the inclusion of PVD chrome wheels until the publication of
the Final Scope Memo.'' \13\
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\12\ See Final Results of Redetermination Pursuant to Court
Remand, Trans Texas Tire, LLC and Zhejiang Jingu Company Limited v.
United States, Consol. Court No. 19-00189; Slip Op. 21-63, dated
June 14, 2021 (Final Results of Redetermination).
\13\ See Remand Order at 21.
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On November 18, 2021, the CIT sustained Commerce's final
redetermination, and entered final judgment.\14\
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\14\ See Trans Texas Tire, LLC and Zhejiang Jingu Company
Limited v. United States, Consol. Court No. 19-00189, Slip Op. 21-
157 (CIT November 18, 2021).
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Timken Notice
In its decision in Timken,\15\ as clarified by Diamond
Sawblades,\16\ the Court of Appeals for the Federal Circuit held that,
pursuant to section 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 November 18, 2021, 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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\15\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\16\ See Diamond Sawblades Manufacturers Coalition v. United
States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Determination and Liquidation of Suspended Entries
Because there is now a final court judgment, Commerce is amending
its Final Determination with respect to the CVD margin assigned to
entries of certain steel trailer wheels 12 to 16.5 inches in diameter
coated in chrome through a PVD process produced and/or exported from
China by Jingu, or produced by Xingmin Intelligent and imported by
Trans Texas, which were entered or withdrawn from warehouse, for
consumption on or after February 25, 2019 (the date of publication of
the Preliminary Determination in the Federal Register), up to and
including June 24, 2019 (the day on which CVD provisional measures
expired), and which remained unliquidated as of the date of the
relevant preliminary injunction (September 4, 2020, in the case of
merchandise produced and/or exported by Jingu; and November 27, 2019,
in the case of merchandise
[[Page 70828]]
produced by Xingmin Intelligent and imported by Trans Texas).
Commerce will continue the suspension of liquidation of the subject
merchandise pending the expiration of the period of appeal or, if
appealed, pending a final and conclusive court decision. Specifically,
we will direct CBP to suspend or continue to suspend liquidation of
such entries at a zero percent cash deposit rate during the pendency of
the appeals process until specific liquidation instructions are issued,
and we will notify CBP that it is authorized to grant a refund of cash
deposits for such entries, if requested by the importer prior to
liquidation pursuant to 19 U.S.C. 1520(a)(4). In the event the Court's
ruling is not appealed or, if appealed, upheld by the Court of Appeals
for the Federal Circuit, Commerce will instruct CBP that entries of
certain steel trailer wheels 12 to 16.5 inches in diameter coated in
chrome through a PVD process, which: (a) Were the subject of the Final
Determination; (b) were produced and/or exported from China by Jingu,
or were produced by Xingmin Intelligent and imported by Trans Texas;
(c) were entered, or withdrawn from warehouse, for consumption on or
after February 25, 2019 up to and including June 24, 2019; and (d)
remain unliquidated as of September 4, 2020 (for wheels produced and/or
exported from China by Jingu) or remain unliquidated as of November 27,
2019 (for wheels produced by Xingmin Intelligent and imported by Trans
Texas); are outside of the scope of the CVD order on certain steel
trailer wheels from China.
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: November 24, 2021.
Ryan Majerus,
Deputy Assistant Secretary for Policy and Negotiations, Performing the
Non-Exclusive Functions and Duties of The Assistant Secretary for
Enforcement and Compliance.
[FR Doc. 2021-26998 Filed 12-10-21; 8:45 am]
BILLING CODE 3510-DS-P
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</html>Indexed from Federal Register on December 13, 2021.
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