Notice2023-18573
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
Primary source
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Published
August 29, 2023
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
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).
Full Text
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<title>Federal Register, Volume 88 Issue 166 (Tuesday, August 29, 2023)</title>
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[Federal Register Volume 88, Number 166 (Tuesday, August 29, 2023)]
[Notices]
[Pages 59505-59506]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[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 <a href="https://access.trade.gov/Resources/remands/22-95.pdf">https://access.trade.gov/Resources/remands/22-95.pdf</a>.
\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]]
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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
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</html>Indexed from Federal Register on August 29, 2023.
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