88 FR 166 pgs. 59505-59506 - 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
Type: NOTICEVolume: 88Number: 166Pages: 59505 - 59506
Pages: 59505, 59506Docket number: [A-351-842]
FR document: [FR Doc. 2023-18573 Filed 8-28-23; 8:45 am]
Agency: Commerce Department
Sub Agency: International Trade Administration
Official PDF Version: PDF Version
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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
Footnotes:
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.
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
Footnotes:
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.
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
Footnotes:
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 https://access.trade.gov/Resources/remands/22-95.pdf.
7 ? See Suzano S.A. v. United States, 633 F.Supp.3d 1232, 1238 (CIT 2023).
8 ? Id. at 1243.
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
Footnotes:
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).
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.
Footnotes:
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).
Amended Final Results
[top] Because there is now a final court judgment, Commerce is amending its Final Results with respect to Suzano as follows:
| Exporter/producer | Final results of redetermination weighted-average dumping margin (percent) |
|---|---|
| Suzano S.A | 8.63 |
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.
Footnotes:
15 ? See 19 CFR 351.106(c)(2).
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