Notice2022-16309
Certain Steel Nails From Taiwan: Notice of Court Decision Not in Harmony With the Results of Antidumping Duty Administrative Review; Notice of Amended Final Results
Primary source
Metadata and text below are from the Federal Register, a public-domain U.S. government work. Always verify the official published version before relying on it for any legal matter.
Published
July 29, 2022
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
On July 15, 2022, the U.S. Court of International Trade (the Court or CIT) issued its final judgment in Pro-Team Coil Nail Enter. v. United States, Consol. Court No. 18-00027, Slip Op. 22-84 (Pro-Team IV), sustaining the U.S. Department of Commerce's (Commerce) remand results pertaining to the administrative review of the antidumping duty (AD) order on certain steel nails from Taiwan covering the period May 20, 2015, to June 30, 2016. 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 the mandatory respondent, PT Enterprise, Inc./Pro-Team Coil Nail Enterprise, Inc. and to the respondents that were not selected for individual examination (i.e., the non-examined companies), Hor Liang Industrial Corp. and Romp Coil Nails Industries Inc.
Full Text
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<title>Federal Register, Volume 87 Issue 145 (Friday, July 29, 2022)</title>
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[Federal Register Volume 87, Number 145 (Friday, July 29, 2022)]
[Notices]
[Pages 45758-45760]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2022-16309]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-583-854]
Certain Steel Nails From Taiwan: 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 July 15, 2022, the U.S. Court of International Trade (the
Court or CIT) issued its final judgment in Pro-Team Coil Nail Enter. v.
United States, Consol. Court No. 18-00027, Slip Op. 22-84 (Pro-Team
IV), sustaining the U.S. Department of Commerce's (Commerce) remand
results pertaining to the administrative review of the antidumping duty
(AD) order on certain steel nails from Taiwan covering the period May
20, 2015, to June 30, 2016. 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 the mandatory
respondent, PT Enterprise, Inc./Pro-Team Coil Nail Enterprise, Inc. and
to the respondents that were not selected for individual examination
(i.e., the non-examined companies), Hor Liang Industrial Corp. and Romp
Coil Nails Industries Inc.
DATES: Applicable July 25, 2022.
FOR FURTHER INFORMATION CONTACT: Erin Kearney or George McMahon, AD/CVD
Operations, Office VI, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-0167 or (202) 482-1167,
respectively.
SUPPLEMENTARY INFORMATION:
Background
On February 13, 2018, Commerce published its Final Results in the
2015-2016 AD administrative review of certain steel nails from
Taiwan.\1\ In this administrative review, Commerce selected three
mandatory respondents for individual examination: PT Enterprise, Inc./
Pro-Team Coil Nail Enterprise, Inc. (PT/Pro-Team); Unicatch Industrial
Co., Ltd. (Unicatch); and Bonuts Hardware Logistics Co., LLC (Bonuts).
Based on the mandatory respondents' failure to cooperate to the best of
their abilities in responding to Commerce's requests for information,
Commerce initially relied on the petition rate as adverse facts
available (AFA) to determine the dumping rates for each of the
mandatory respondents. Commerce assigned to the non-examined companies
the dumping margin assigned to the mandatory respondents, 78.17
percent, in the Final Results.\2\
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\1\ See Certain Steel Nails from Taiwan: Final Results of
Antidumping Duty Administrative Review and Partial Rescission of
Administrative Review; 2015-2016, 83 FR 6163 (February 13, 2018)
(Final Results), and accompanying Issues and Decision Memorandum
(IDM).
\2\ Id.
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PT/Pro-Team and Unicatch challenged the application of AFA. Bonuts
did not challenge the AFA rate it was assigned.\3\
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\3\ See Pro-Team Coil Nail Enter. v. United States (Pro-Team I),
419 F. Supp. 3d 1319, 1323-25 (CIT 2019) (First Remand Order).
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In its First Remand Order, the Court sustained Commerce's use of
facts available to determine the margin for Unicatch, but remanded two
issues to Commerce: (1) the application of AFA to determine the AD
margin of PT/Pro-Team; and (2) to explain the use of an adverse
inference when using facts available to determine the AD margin of
Unicatch.\4\
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\4\ Id.
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In its first remand redetermination issued on March 25, 2020,
Commerce reconsidered its AFA determinations.\5\ Commerce calculated a
dumping margin for PT/Pro-Team that was de minimis, but continued to
apply AFA to Unicatch.\6\ Commerce used the AFA rate that it
corroborated in the Final Results and recalculated the non-examined
companies' rate using the ``expected method'' of averaging PT's and
Unicatch's rates. Commerce calculated the non-examined companies' rate
using a simple average of PT/Pro-Team's calculated zero percent margin
and the 78.17 percent AFA rate applied to Unicatch.\7\
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\5\ See Final Results of Redetermination Pursuant to Court
Remand, Pro-Team Coil Nail Enter. v. United States, Consol. Court
No. 18-00027, Slip Op. 19-169 (CIT December 19, 2019), dated March
25, 2020 (First Redetermination).
\6\ Bonuts did not challenge the application of AFA to its
company, and the AFA rate assigned to Bonuts has remained unchanged
in this segment of the proceeding.
\7\ See First Redetermination at 32.
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In the Second Remand Order, the Court sustained Commerce's
calculation of a weighted-average dumping margin of zero percent for
PT/Pro-Team and Commerce's application of a rate based on AFA for
Unicatch.\8\ The Court
[[Page 45759]]
remanded Commerce's selection of the 78.17 percent rate applied as AFA,
which the Court found Commerce did not adequately corroborate.\9\ The
Court also stated that ``Commerce largely ignored Unicatch's arguments
that the 78.17 percent rate was punitive, aberrational, and lacking
consideration of the totality of the circumstances or the seriousness
of Unicatch's conduct,'' but deferred further consideration of
Unicatch's arguments that the petition rate was unduly punitive.\10\
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\8\ See Pro-Team Coil Nail Enterprise, Inc. v. United States,
483 F. Supp. 3d 1242 (CIT 2020) (Second Remand Order).
\9\ Id., 483 F. Supp. 3d at 1245, 1251
\10\ Id., 483 F. Supp. 3d at 1251.
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In its second remand redetermination issued on February 23, 2021,
Commerce provided additional analysis concerning the corroboration of
the margin assigned to Unicatch as AFA. Commerce also recalculated the
rate assigned to the non-examined companies using a simple average of
the mandatory respondents' rates.\11\
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\11\ See Final Results of Redetermination Pursuant to Court
Remand, Pro-Team Coil Nail Enter. v. United States, Consol. Court
No. 18-00027, Slip Op. 20-163 (CIT November 16, 2020), dated
February 23, 2021 (Second Redetermination), at 12. Upon review of
the calculation of the non-examined companies' rate, we found that
Commerce erred in the First Redetermination by inadvertently
omitting Bonuts' rate from the calculation.
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In Pro-Team III, the non-examined companies challenged Commerce's
decision to use a simple average of the mandatory respondents' AFA and
de minimis rates to calculate the rate for non-examined companies. The
CIT remanded Commerce's use of a simple average to calculate the rate
for non-examined companies.\12\ The CIT found that substantial evidence
did not support Commerce's departure from the expected method \13\
(i.e., using a weighted average to calculate the non-examined
companies' rate) because Commerce had not explained why the U.S.
Customs and Border Protection (CBP) import volume data it had relied on
for selecting mandatory respondents was not reliable for the purpose of
calculating a dumping rate using the expected method.\14\
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\12\ See Pro-Team Coil Nail Enter. v. United States, 532 F.
Supp. 3d 1281, 1294 (CIT 2021) (Pro-Team III).
\13\ The Statement of Administrative Action accompanying the
Uruguay Round Agreements Act (URAA), which Congress has approved as
an authoritative interpretation of the statute, Id. Sec. 3512(d),
provides an ``expected method'' to determine the all-others rate in
these situations. See Statement of Administrative Action
Accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103-
316, Vol. 1 (1994) (SAA), at 873. When the dumping margins for all
individually investigated exporters and producers are determined
entirely on the basis of facts available or are zero or de minimis,
``{t{time} he expected method in such cases will be to weight-
average the zero and de minimis margins and margins determined
pursuant to the facts available, provided that volume data is
available.'' Id. The SAA further provides that ``if this method is
not feasible, or if it results in an average that would not be
reasonably reflective of potential dumping margins for non-
investigated exporters or producers, Commerce may use other
reasonable methods.'' Id.
\14\ See Pro-Team III, 532 F. Supp. 3d at 1293-94.
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In its third remand redetermination issued on October 13, 2021,
Commerce continued to assign rates based on total AFA to two selected
respondents (Bonuts and Unicatch), calculated a zero percent margin for
a third selected respondent (PT/Pro-Team), and calculated the weighted-
average of the rates of these three mandatory respondents to apply to
the non-examined companies.\15\ This use of the expected method
resulted in an AD rate of 35.30 percent for the non-examined
companies.\16\
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\15\ See Final Results of Redetermination Pursuant to Court
Remand, Pro-Team Coil Nail Enter. v. United States, Consol. Court
No. 18-00027, Slip Op. 21-93 (CIT July 20, 2021), dated October 13,
2021 (Third Redetermination).
\16\ Id. at 17.
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In Pro-Team IV, the Court explained that the statute, SAA, and case
law supported the legal framework in which the mandatory respondents
are assumed representative of the non- examined companies and also
explained that Commerce does not bear a burden of data collection to
determine non-examined companies' potential dumping margins.\17\ The
CIT agreed with Commerce's finding that substantial evidence did not
support a finding that the mandatory respondents' rates were not
representative because the history of the rates showed fluctuations
from administrative review to administrative review. Moreover, the CIT
held that Commerce's determination to include in the calculation of the
rate applicable to non-selected respondents Bonuts' AFA rate was lawful
because absent Bonuts' cooperation, Commerce could not verify Bonuts'
claim that it was not representative.\18\
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\17\ See Pro-Team Coil Nail Enter. v. United States, Consol.
Court No. 18-00027, Slip Op. 22-84 (CIT July 15, 2022) (Pro-Team
IV).
\18\ Id. at 18.
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On July 15, 2022, the Court sustained Commerce's Third
Redetermination, and entered a final judgment.\19\
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\19\ Id.
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Timken Notice
In its decision in Timken,\20\ as clarified by Diamond
Sawblades,\21\ the U.S. Court of Appeals for the Federal Circuit held
that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended
(the Act), Commerce must publish a notice of a court decision not ``in
harmony'' with a Commerce determination and must suspend liquidation of
entries pending a ``conclusive'' court decision. The Court's July 15,
2022, judgment sustaining the Third Redetermination constitutes a final
decision of the Court that is not in harmony with Commerce's Final
Results. This notice is published in fulfillment of the publication
requirement of Timken.
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\20\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed.
Cir. 1990) (Timken).
\21\ See Diamond Sawblades Mfrs. 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 decision, Commerce is amending
the Final Results with respect to PT/Pro-Team and the non-examined
companies for the period May 20, 2015, through June 30, 2016. The
revised rates for PT/Pro-Team and the non-examined companies are as
follows:
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Weighted
average
Producer/exporter dumping
margin
(percent)
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PT Enterprise, Inc./Pro-Team................................ 0.00
Coil Nail Enterprise, Inc...................................
Non-examined companies \22\................................. 35.30
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Cash Deposit Requirements
Because PT/Pro-Team and the non-examined companies have superseding
cash deposit rates, i.e., there have been final results published in a
subsequent administrative review, we will not issue revised cash
deposit instructions to CBP. This notice will not affect the current
cash deposit rates.
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\22\ The non-examined companies are Hor Liang Industrial Corp.
and Romp Coil Nails Industries Inc.
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Liquidation of Suspended Entries
At this time, Commerce remains enjoined by CIT order from
liquidating entries that: were imported by PrimeSource Building
Products, Inc.; produced and exported by Pro-Team Coil Nail Enterprise,
Inc. and/or PT Enterprise Inc.; produced and exported by Hor Liang
Industrial Corp. or Romp Coil Nails Industries Inc.; or produced and
exported by Unicatch Industrial Co., Ltd., and were entered, or
withdrawn from warehouse, for consumption during the period May 20,
2015 through June 30, 2016. Liquidation of 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,
[[Page 45760]]
Commerce intends to instruct CBP to assess ADs on unliquidated entries
of subject merchandise imported by PrimeSource Building Products, Inc.;
produced and exported by Pro-Team Coil Nail Enterprise, Inc. and/or PT
Enterprise Inc.; produced and exported by Hor Liang Industrial Corp. or
Romp Coil Nails Industries Inc.; or produced and exported by Unicatch
Industrial Co., Ltd., in accordance with 19 CFR 351.212(b). We will
instruct CBP to assess ADs 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,\23\ we will instruct CBP to liquidate the
appropriate entries without regard to ADs.
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\23\ 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
516(A)(c) and (e) and 777(i)(1) of the Act.
Dated: July 25, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2022-16309 Filed 7-28-22; 8:45 am]
BILLING CODE 3510-DS-P
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</html>Indexed from Federal Register on July 29, 2022.
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