Notice2023-18386
Corrosion-Resistant Steel Products From Taiwan: Notice of Third Amended Final Determination of Sales at Less Than Fair Value Pursuant to Court Decision and Partial Exclusion From Antidumping Duty Order
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
August 25, 2023
Issuing agencies
Commerce DepartmentInternational Trade Administration
Abstract
On June 23, 2023, the U.S. Court of International Trade (CIT) sustained the U.S. Department of Commerce's (Commerce) second remand redetermination concerning the antidumping duty investigation of certain corrosion-resistant steel products (CORE) from Taiwan, which: (1) reinstated the use of an adverse inference in the calculation of respondent Prosperity Tieh Enterprise Co., Ltd.'s (Prosperity) reporting of yield strength for CORE production, and (2) reversed Commerce's determination from the investigation to collapse mandatory respondent Prosperity with the other mandatory respondent, the Yieh Phui Enterprise Co., Ltd. (Yieh Phui) and Synn Industrial Co., Ltd. (Synn) single entity (collectively, Yieh Phui/Synn). Accordingly, Commerce is issuing a third amended final determination for the less- than-fair-value (LTFV) investigation of CORE from Taiwan. The determination to not collapse Prosperity with the Yieh Phui/Synn entity results in a negative amended final determination of sales at LTFV for Yieh Phui/Synn and, thus, excludes Yieh Phui/Synn from the antidumping duty order.
Full Text
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<title>Federal Register, Volume 88 Issue 164 (Friday, August 25, 2023)</title>
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[Federal Register Volume 88, Number 164 (Friday, August 25, 2023)]
[Notices]
[Pages 58245-58248]
From the Federal Register Online via the Government Publishing Office [<a href="http://www.gpo.gov">www.gpo.gov</a>]
[FR Doc No: 2023-18386]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-583-856]
Corrosion-Resistant Steel Products From Taiwan: Notice of Third
Amended Final Determination of Sales at Less Than Fair Value Pursuant
to Court Decision and Partial Exclusion From Antidumping Duty Order
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On June 23, 2023, the U.S. Court of International Trade (CIT)
sustained the U.S. Department of Commerce's (Commerce) second remand
redetermination concerning the antidumping duty investigation of
certain corrosion-resistant steel products (CORE) from Taiwan, which:
(1) reinstated the use of an adverse inference in the calculation of
respondent Prosperity Tieh Enterprise Co., Ltd.'s (Prosperity)
reporting of yield strength for CORE production, and (2) reversed
Commerce's determination from the investigation to collapse mandatory
respondent Prosperity with the other mandatory respondent, the Yieh
Phui Enterprise Co., Ltd. (Yieh Phui) and Synn Industrial Co., Ltd.
(Synn) single entity (collectively, Yieh Phui/Synn). Accordingly,
Commerce is issuing a third amended final determination for the less-
than-fair-value (LTFV) investigation of CORE
[[Page 58246]]
from Taiwan. The determination to not collapse Prosperity with the Yieh
Phui/Synn entity results in a negative amended final determination of
sales at LTFV for Yieh Phui/Synn and, thus, excludes Yieh Phui/Synn
from the antidumping duty order.
DATES: Applicable July 3, 2023.
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
The litigation in this case relates to Commerce's final
determination in the LTFV investigation of CORE from Taiwan, which was
later amended. In the Preliminary Determination, Commerce determined
that Yieh Phui and Synn comprised a single entity, and no party
challenged this determination in its case brief. Thus, Commerce
continued to find Yieh Phui and Synn to be a single entity in the Final
Determination.\1\ In the Final Determination, Commerce further
determined that Prosperity was part of the Synn single entity.\2\ With
regard to Prosperity and Synn, Commerce found that Prosperity was
affiliated with Synn, and that it should be treated as a part of the
Synn single entity. As a result, Commerce concluded that
``{s{time} ince Prosperity Tieh is collapsed with {Synn{time} , and
Yieh Phui is collapsed with {Synn{time} , {as a result of{time} the
potential for manipulation of price and production among the three
companies comprising the two collapsed entities, we find that
Prosperity Tieh/{Synn{time} and Yieh Phui/{Synn{time} should be
collapsed as a single entity for purposes of the final determination in
this investigation.'' \3\
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\1\ See Certain Corrosion-Resistant Steel Products from Taiwan:
Negative Preliminary Determination of Sales at Less than Fair Value,
81 FR 72 (January 4, 2016), and accompanying Preliminary Decision
Memorandum (PDM) at 4; see also Certain Corrosion-Resistant Steel
Products from Taiwan: Final Determination of Sales at Less Than Fair
Value and Final Affirmative Determination of Critical Circumstances,
in Part, 81 FR 35313, 35314 (June 2, 2016) (Final Determination),
and accompanying Issues and Decision Memorandum (IDM); and
Memorandum, ``Less Than Fair Value Investigation of Certain
Corrosion-Resistant Steel Products from Taiwan: Final Affiliation
and Collapsing Memorandum,'' dated May 24, 2016 (Final Collapsing
Memo).
\2\ See Certain Corrosion Resistant Steel Products (CORE) from
India, Italy, China, Korea and Taiwan: Amended Final Affirmative
Antidumping Determination for India and Taiwan, and Antidumping Duty
Orders, 81 FR 48390 (July 26, 2016) (Amended Final Determination and
Order). Although the Amended Final Determination changed the
weighted-average dumping margins, it did not change the analysis
from the Final Determination.
\3\ See Final Affiliation and Collapsing Memorandum, at 9.
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Also, in the Final Determination, Commerce determined that
Prosperity misreported the yield strength of certain of its sales of
CORE, which resulted in Commerce's determination that Prosperity failed
to cooperate to the best of its ability.\4\ To determine the costs of
the sales found to have been misclassified by Prosperity, Commerce
resorted to partial adverse facts available pursuant to sections
776(a)(2)(B) and (D) and 776(b) of the Tariff Act of 1930, as amended
(the Act).\5\
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\4\ See Final Determination, 81 FR 35314, and accompanying IDM
at Comment 1.
\5\ Id.
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Mandatory respondents, Prosperity and Yieh Phui, each a Taiwanese
producer and exporter of CORE, challenged aspects of Commerce's final
affirmative LTFV determination before the CIT, including Commerce's
single entity determination with respect to Prosperity and the Yieh
Phui/Synn entity and Commerce's use of facts otherwise available with
an adverse inference in response to Prosperity's reporting of yield
strength. In Prosperity I, the CIT ordered Commerce to: (1) reconsider
its decision to collapse Prosperity with the Yieh Phui/Synn entity; and
(2) ``correct the errors resulting from {Commerce's{time} unlawful
decision to use the facts otherwise available and an adverse inference
pertaining to the yield strength classification and coding of
Prosperity's home market and U.S. market sales.'' \6\ In its First
Redetermination Results, Commerce: (1) reconsidered the collapsing
determination in accordance with the CIT's opinion, but continued to
treat Prosperity, Yieh Phui, and Synn as a single-entity, consistent
with 19 CFR 351.401(f); and (2) under respectful protest, revised the
Yieh Phui/Prosperity/Synn entity's weighted-average dumping margin by
using Prosperity's reported yield strength data rather than facts
otherwise available with an adverse inference.\7\ In Prosperity II, the
CIT sustained Commerce's First Redetermination Results.\8\ On February
26, 2019, Commerce published the second amended final determination and
notification of final judgment that is not in harmony with Commerce's
amended final determination of the antidumping investigation.\9\
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\6\ See Prosperity Tieh Enter. Co. v. United States, 284 F.
Supp. 3d 1364, 1382 (CIT 2018) (Prosperity I).
\7\ See Final Results of Redetermination Pursuant to Court
Remand, Prosperity Tieh Enterprise Co., Ltd. et al. v. United
States, Consol. Court No. 19-00138, Slip Op 18-5 (CIT 2018), dated
May 23, 2018 (First Redetermination Results).
\8\ See Prosperity Tieh Enter. Co. v. United States, 358 F.
Supp. 3d 1363, 1370 (CIT 2018) (Prosperity II).
\9\ See Corrosion-Resistant Steel Products from Taiwan: Notice
of Court Decision Not in Harmony With Final Determination of
Antidumping Duty Investigation and Notice of Amended Final
Determination of Investigation, 84 FR 6129 (February 26, 2019)
(Second Amended Final Determination and Timken Notice).
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In Prosperity III, the U.S. Court of Appeals for the Federal
Circuit (Federal Circuit) vacated the CIT's judgment on the collapsing
issue in Prosperity II by concluding that ``Commerce acted contrary to
law when it collapsed Prosperity, Yieh {Phui{time} , and Synn without
considering the {19 CFR{time} 351.401(f) factors as between the
relationships of Prosperity and Yieh {Phui{time} or between Prosperity
and Yieh {Phui{time} /Synn . . . Commerce must consider the `totality
of circumstances' between all entities when it evaluates whether, for
purposes of collapsing entities, there is significant potential for
manipulation of price or production to circumvent antidumping duties.''
\10\ Regarding Prosperity's yield strength, the Federal Circuit held
that the CIT ``erred when it reversed Commerce's finding that
Prosperity misreported yield strength,'' and that ``{s{time} ubstantial
evidence also supports Commerce's finding that Prosperity failed to
provide yield strength information based on the ASTM industry
standard.'' \11\
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\10\ See Prosperity Tieh Enter. Co. v. United States, 965 F.3d
1320, 1326 (Fed. Cir. 2020) (Prosperity III); Federal Circuit
Mandate in Appeal #19-1400 (September 8, 2020), ECF. No. 132; see
also Prosperity Tieh Enter. Co. v. United States, 532 F. Supp. 3d
1401 (CIT 2021) (Prosperity IV).
\11\ See Prosperity III, 965 F.3d at 1328.
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The Federal Circuit remanded to the CIT for further proceedings
consistent with its opinion, and on September 1, 2021, the CIT issued
its remand order, ordering Commerce to reach a new determination on
whether collapsing is appropriate, reinstate the use of facts available
with an adverse inference with respect to Prosperity's reporting of
yield strength which Commerce used in its final and amended LTFV
determinations, and redetermine margins, as appropriate, consistent
with Prosperity III.\12\ On February 14, 2022, Commerce issued the
second remand redetermination, in which it reversed its determination
to collapse Prosperity with the Yieh Phui/Synn single-entity based on
the lack of record evidence to support a collapsing determination as to
Prosperity and Yieh Phui and reinstated its use of AFA as to
Prosperity's
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reporting of yield strength for CORE production.\13\ On June 23, 2023,
the CIT issued its final judgment to sustain the Second Redetermination
Results concerning the underlying LTFV investigation of CORE from
Taiwan.\14\
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\12\ See Prosperity IV, 532 F. Supp. 3d at 1401.
\13\ See Final Results of Redetermination Pursuant to Court
Remand, Prosperity Tieh Enterprise Co., Ltd. et al. v. United
States, Consol. Court No. 19-00138, Slip Op. 21-113 (CIT 2021),
dated February 14, 2022 (Second Redetermination Results).
\14\ See Prosperity Tieh Enterprise Co., Ltd. and Yieh Phui
Enterprise Co., Ltd. v. United States, Consolidated Court No. 16-
00138, Slip Op. 23-95 (CIT 2023) (Prosperity V).
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All-Others Rate
Section 735(c)(5)(A) of the Act provides that the estimated
weighted-average dumping margin for all other producers and exporters
not individually examined shall be equal to the weighted average of the
estimated weighted-average dumping margins established for exporters
and producers individually investigated excluding rates that are zero,
de minimis, or determined entirely under section 776 of the Act.
Prosperity is the only respondent for which Commerce calculated an
estimated weighted-average dumping margin that is not zero, de minimis,
or based entirely on facts otherwise available. Therefore, for purposes
of determining the ``all-others'' rate, and pursuant to section
735(c)(5)(A) of the Act, we are using the estimated weighted-average
dumping margin calculated for Prosperity, as referenced in the ``Third
Amended Final Determination'' section below.
Third Amended Final Determination
Because there is now a final court decision, Commerce is amending
the Final Determination, Amended Final Determination and Order, and
Second Amended Final Determination and Timken Notice. The revised,
amended weighted-average dumping margins for the period April 1, 2014,
through March 31, 2015, are as follows:
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Weighted-average
Producer or exporter dumping margin
(percent)
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Prosperity Tieh Enterprise Co., Ltd................. 11.04
Yieh Phui Enterprise Co., Ltd., and Synn Industrial * 1.20
Co., Ltd...........................................
All Others.......................................... 11.04
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* De minimis.
Partial Exclusion From Antidumping Duty Order
Pursuant to section 735(a)(4) of the Act, Commerce ``shall
disregard any weighted average dumping margin that is de minimis as
defined in section 733(b)(3) of the Act.'' Furthermore, and pursuant to
section 735(c)(2) of the Act, ``the investigation shall be terminated
upon publication of that negative determination,'' and Commerce shall
``terminate the suspension of liquidation'' and ``release any bond or
other security, and refund any cash deposit.'' As a result of this
amended final determination, in which Commerce has calculated a de
minimis estimated weighted-average dumping margin of 1.20 percent for
Yieh Phui/Synn, Commerce is hereby excluding merchandise produced and
exported by Yieh Phui/Synn from the Order. Accordingly, if the CIT's
ruling is not appealed, or if appealed and upheld, Commerce will direct
U.S. Customs and Border Protection (CBP) to refund cash deposits
pertaining to any suspended entries produced and exported by Yieh Phui/
Synn.
Commerce applies the exclusion from the Order to the producer/
exporter combination that was examined in the investigation. Entries of
subject merchandise in any other producer/exporter combination, e.g.,
merchandise produced by a third party and exported by Yieh Phui or
Synn, or produced by Yieh Phui or Synn and exported by a third party,
are subject to the cash deposit requirements at the all-others rate. We
note, however, pursuant to Timken, the suspension of liquidation must
continue during the pendency of the appeals process.\15\ Accordingly,
we will instruct CBP to continue to suspend liquidation of all
unliquidated Yieh Phui/Synn entries referenced above until appropriate
liquidation instructions are sent. As of the date of the publication of
this notice in the Federal Register, a cash deposit rate of 0.00
percent will be the applicable cash deposit rate for Yieh Phui/Synn
entries referenced above.
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\15\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed.
Cir. 1990) (Timken).
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Lastly, as a result of the exclusion of Yieh Phui/Synn from the
Order, Commerce is: (1) discontinuing the ongoing administrative review
of the Order covering the 7/1/2021 through 6/30/2022 period of review,
in part, with respect to Yieh Phui and Synn; and (2) will not initiate
any new administrative reviews of Yieh Phui's or Synn's entries
pursuant to the Order.
Cash Deposit Requirements
Since the Final Determination, Commerce has established a new cash
deposit rate for Prosperity.\16\ Therefore, this amended final
determination has no effect on subsequent cash deposit rates determined
for Prosperity. For all-other producers and/or exporters, except for
companies that received their own rates in subsequent administrative
reviews, Commerce will issue revised cash deposit instructions to CBP,
adjusting the cash deposit rate for all-other producers and/or
exporters to 11.04 percent, effective as of the date of this
publication of this notice.
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\16\ See Certain Corrosion-Resistant Steel Products from Taiwan:
Amended Final Results of Antidumping Duty Administrative Review;
2020-2021, 88 FR 13779 (March 6, 2023).
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Liquidation of Suspended Entries
At this time, Commerce remains enjoined by Court orders from
liquidating entries that were produced and exported by: (1) Prosperity
and imported by Prosperity Tieh USA; that were subject of the United
States Department of Commerce's final results in Certain Corrosion-
Resistant Steel Products from Taiwan: Final Results of Antidumping Duty
Administrative Review; 2017-2018, 85 FR 16613 (Dep't Commerce March 24,
2020); and that were entered, or withdrawn from warehouse, during the
period 07/01/2017 through 6/30/2018 (see CBP message number 0101402,
dated April 10, 2020); (2) Prosperity Tieh Enterprise Co., Ltd and
imported by Prosperity Tieh USA, that were the subject of the United
States Department of Commerce's final results in Certain Corrosion-
Resistant Steel Products From Taiwan: Final Results of Antidumping Duty
Administrative Review; 2016-2017, 83 FR 64527 (Dept Commerce Dec. 17,
2018), and that were entered, or withdrawn from warehouse, on or after
June 2, 2016 up to and including June
[[Page 58248]]
30, 2017 (see CBP message number 9035305, dated February 24, 2023); (3)
Yieh Phui Enterprise Co., Ltd; that were the subject of the United
States Department of Commerce's final determination in the Certain
Corrosion-Resistant Steel Products from Taiwan: Final Results of
Antidumping Duty Administrative Review and Final Determination of No
Shipments 2020-2021, 88 FR 7408 (February 3, 2023); and that were
entered or withdrawn from warehouse, for consumption, during the period
July 1, 2020, through June 30, 2021 (see CBP message 3055401, dated
February 24, 2023); and (4) Yieh Phui Enterprise Co., Ltd and imported
by Yieh Phui America, Inc.; that were subject of the United States
Depart of Commerce's final results in Certain Corrosion-Resistant Steel
Products from Taiwan: Final Results of Antidumping Duty Administrative
Review and Final Determination of No Shipments; 2019-2020, 87 FR 7106
(Dep't Commerce Feb. 8, 2022); and that were entered or withdrawn from
warehouse, on or after July 1, 2019 up to and including June 30, 2020
(see CBP message number 2074409, dated March 15, 2022).
These entries will remain enjoined pursuant to the terms of the
injunctions issued in CIT Court No. 16-00138 during the pendency of any
appeals process.
Notification to Interested Parties
This notice of the amended final determination is issued and
published in accordance with sections 735(d) and 516A(c)(1) and (e) of
the Act.
Dated: August 21, 2023.
Abdelali Elouaradia,
Deputy Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2023-18386 Filed 8-24-23; 8:45 am]
BILLING CODE 3510-DS-P
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