SUPPLEMENTARY INFORMATION:

Background

On November 6, 2023, Commerce published its Final Results in the 2020-2021 administrative review of the CVD order on phosphate fertilizers from Russia.^[1] Commerce used a tier-three benchmark pursuant to 19 CFR 351.511(a)(2)(iii) to assess the Government of Russia's provision of phosphate ore mining rights to JSC Apatit for less than adequate remuneration (LTAR) and compared JSC Apatit's phosphate rock cost buildup to world market igneous phosphate rock export prices. Commerce determined the subsidy rate for the mining rights program to be 26.78 percent ad valorem and calculated a total countervailable subsidy rate of 28.50 percent ad valorem.^[2]

The Archer Daniels Midland Company appealed Commerce's Final Results. On May 6, 2025, the CIT remanded, in part, the Final Results to Commerce, directing Commerce to: (1) either present record evidence showing that the phosphate rock market is significantly driven by the distinction between sedimentary and igneous rock or reconstruct the tier three benchmark for the provision of phosphate mining rights for LTAR program; ^[3] and (2) either clarify two issues relating to the selection of a tier two benchmark for the provision of natural gas for LTAR program or construct a tier three benchmark.^[4]

In its first remand redetermination, issued in August 2025, Commerce provided further explanation for its phosphate rock benchmark for the provision of phosphate mining rights for LTAR program, and reconsidered and revised its benchmark for natural gas purchases for the provision of natural gas for LTAR program.^[5] The CIT sustained Commerce with respect to the provision of natural gas for LTAR program but remanded Commerce for a second time with respect to the provision of phosphate mining rights for LTAR program, directing Commerce to construct a tier-three benchmark to include world phosphate rock price data that was previously excluded solely based on the distinction between igneous and sedimentary phosphate ore.^[6]

In its second final remand redetermination, issued in May 2026, Commerce constructed a tier-three benchmark to include world phosphate rock price data that was previously excluded solely based on the distinction between igneous and sedimentary ore, and calculated that JSC Apatit did not receive a measurable benefit for the provision of mining rights for LTAR program, which resulted in a total ad valorem subsidy rate of 22.86 percent for JSC Apatit for the POR.^[7] The CIT sustained Commerce's second final remand redetermination.^[8]

Timken Notice

In its decision in Timken,^[9] as clarified by Diamond Sawblades,^[10] the U.S. 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 August 12, 2026, 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.

Amended Final Results

Because there is now a final court judgment, Commerce is amending its Final Results with respect to JSC Apatit as follows:

Cash Deposit Requirements

Because JSC Apatit 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/or exported by JSC Apatit and were entered, or withdrawn from warehouse, for consumption 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.

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 countervailing duties on unliquidated entries of subject merchandise produced and/or exported JSC Apatit in accordance with 19 CFR 351.212(b). We will instruct CBP to assess countervailing duties on all appropriate entries covered by this review when the ad valorem rate is not zero or de minimis. Where an ad valorem subsidy rate is zero or de minimis,^[12] we will instruct CBP to ( printed page 53602) liquidate the appropriate entries without regard to countervailing duties.

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.

91 FR 53600