[Federal Register Volume 81, Number 136 (Friday, July 15, 2016)]
[Notices]
[Pages 46051-46053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16803]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-201-830]


Carbon and Certain Alloy Steel Wire Rod From Mexico: Notice of 
Court Decision Not in Harmony With Amended Final Determination and 
Notice of Second Amended Final Determination

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: On December 22, 2014, the United States Court of International 
Trade (CIT) entered its final judgment in Deacero III,\1\ sustaining 
the Department of Commerce's (the Department) negative circumvention 
determination from the First Remand Results as it relates to the 
antidumping duty order on carbon and certain alloy steel wire rod from 
Mexico.\2\ Consistent with the decision of the United States Court of 
Appeals for the Federal Circuit (Federal Circuit) in Timken,\3\ as 
clarified by Diamond Sawblades,\4\ the Department issued the Amended 
Final Determination \5\ notifying the public that the final judgment of 
the CIT in this case was not in harmony with the Department's finding 
in the Final Determination.\6\ In the Amended Final Determination, the 
Department found, under protest, that, pursuant to section 781(c) of 
the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.225, 
Deacero's entries of wire rod with an actual diameter of 4.75 
millimeters (mm) to 5.00 mm (also referred to in this notice as small 
diameter wire rod) did not constitute circumvention of the Order. On 
April 5, 2016, the Federal Circuit reversed the CIT's holding in 
Deacero III.\7\ In its holding, the Federal Circuit reinstated the 
Department's original finding from the Final Determination that 
Deacero's shipments of small diameter wire rod to the United States 
constitute a minor alteration circumvention of the Order.\8\
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    \1\ See Deacero S.A.P.I. de C.V. and Deacero USA, Inc. v. United 
States and Arcelormittal USA LLC, Gerdau Ameristeel U.S. Inc., Evraz 
Rocky Mountain Steel, and Nucor Corporation, Court No. 12-00345, 
Slip Op. 14-151 (December 22, 2014) (Deacero III).
    \2\ See Final Results of Redetermination Pursuant to Deacero 
S.A. de C.V. and Deacero USA Inc. v. United States and Arcelormittal 
USA LLC, Gerdau Ameristeel U.S. Inc., Evraz Rocky Mountain Steel, 
and Nucor Corporation, Court No. 12-00345; Slip Op. 13-126 (CIT 
2013) (January 29, 2014) (First Remand Results); Notice of 
Antidumping Duty Orders: Carbon and Certain Alloy Steel Wire Rod 
from Brazil, Indonesia, Mexico, Moldova, Trinidad and Tobago, and 
Ukraine, 67 FR 65945 (October 29, 2002) (Order).
    \3\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (Timken).
    \4\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
    \5\ See Carbon and Certain Alloy Steel Wire Rod From Mexico: 
Notice of Court Decision Not in Harmony With Final Results and 
Notice of Amended Final Determination, 80 FR 44326 (July 27, 2015) 
(Amended Final Determination).
    \6\ See Carbon and Certain Alloy Steel Wire Rod From Mexico: 
Affirmative Final Determination of Circumvention of the Antidumping 
Duty Order, 77 FR 59892 (October 1, 2012) (Final Determination) and 
accompanying Issues and Decision Memorandum (Final Decision 
Memorandum).
    \7\ See Deacero S.A.de C.V. v. United States, 817 F.3d 1332 
(Fed. Cir. 2016) (Deacero IV).
    \8\ Id. at 12.

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DATES: Effective April 15, 2016.

FOR FURTHER INFORMATION CONTACT: Eric B. Greynolds, or James Terpstra. 
AD/

[[Page 46052]]

CVD Operations, Office III, Enforcement and Compliance, International 
Trade Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
6071, (202) 482-3965, respectively.

SUPPLEMENTARY INFORMATION: 

Background

    On October 1, 2012, the Department issued the Final Determination 
in which it determined that Deacero's entries of wire rod with an 
actual diameter of 4.75 mm to 5.00 mm constitute a minor alteration 
circumvention of the Order.\9\ Deacero challenged the Department's 
determination. Upon review, the CIT remanded the Final Determination, 
holding that the Department improperly determined that Deacero's 
entries of small diameter wire rod were inside the scope of the Order 
despite the fact that small diameter wire rod was commercially 
available before the investigation and Petitioners \10\ ``consciously 
chose to limit the Order's reach to certain steel products 5.00 mm or 
more, but less than 19.00 mm in solid cross-sectional diameter.'' \11\ 
On remand, based on the Court's reasoning, the Department found that 
there was no alternative but to change the results of the anti-
circumvention determination and find that Deacero's entries of wire rod 
with an actual diameter of 4.75 mm to 5.00 mm were not within the scope 
of the Order.\12\
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    \9\ See Final Determination, 77 FR at 59893.
    \10\ Petitioners are ArcelorMittal USA LLC, Gerdau Ameristeel 
U.S. Inc, Rocky Mountain Steel, Members of the Wire Rod Producers 
Coalition and Nucor Corporation (Nucor).
    \11\ See Deacero S.A. de C.V. v. United States, 37 CIT, 942 F. 
Supp. 2d 1321, 1324-25 (September 20, 2013) (Deacero I); Deacero 
Remand, Slip Op. 13-126 at 15.
    \12\ See First Remand Results at 6.
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    In Deacero II, the Court held that although the Department 
ultimately reached a supportable result in the First Remand Results, 
remand was nonetheless necessary because the Department arrived at the 
result by misinterpreting Deacero I.\13\ Therefore, in Deacero II, the 
Court instructed the Department to explain whether it seeks the Court's 
leave to revisit the issue of commercial availability.\14\
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    \13\ See Deacero S.A.P.I. de C.V. v. United States, Slip Op. 14-
99, 2014 WL 4244349, * 1-3 (August 28, 2014) (Deacero II) at 11-12.
    \14\ Id. at 12.
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    In the Second Remand Results, the Department continued to 
respectfully disagree with the Court that the ``commercial 
availability'' of a product in the country in question, in a third 
country or in the United States bars the Department from reaching an 
affirmative anti-circumvention determination under the minor alteration 
provision of the statute.\15\ For these same reasons, the Department 
did not request a remand to further consider ``commercial 
availability'' in the context of this minor alteration proceeding. On 
December 22, 2014, the CIT entered final judgment sustaining the First 
Remand Results.\16\ Accordingly, July 27, 2015, the Department issued 
the Amended Final Determination in which it found that Deacero's 
entries of small diameter wire rod were not circumventing the Order 
and, thus, were not subject to antidumping (AD) duties.\17\ In the 
Amended Final Determination, the Department indicated that it would 
instruct Customs and Border Protection (CBP) to continue the suspension 
of liquidation of the subject merchandise, but set the cash deposit 
rate for Deacero's entries of wire rod with an actual diameter of 4.75 
mm up to 5.00 mm to zero pending a final and conclusive court 
decision.\18\ Further, in the Amended Final Determination, the 
Department stated that for any AD duties which were deposited for 
Deacero's entries of wire rod with an actual diameter of 4.75 mm up to 
5.00 mm entered from January 1, 2015, to July 27, 2015, the publication 
date of the Amended Final Determination, the Department would instruct 
CBP to refund the cash deposit upon request but continue to suspend the 
entries at a zero cash deposit rate.\19\
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    \15\ See Final Results of Redetermination Pursuant to Deacero 
S.A. de C.V. et al., v. United States, Court No. 12-00345; Slip Op. 
14-99 (CIT August 28, 2014) (Second Remand Results).
    \16\ See Deacero III.
    \17\ See Amended Final Determination, 80 FR at 44327.
    \18\ Id.
    \19\ Id.
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    In Deacero IV, the Federal Circuit held that in reversing the 
Department's affirmative circumvention finding in the Final 
Determination, the CIT erred in its interpretation of case 
precedent.\20\ The Federal Circuit found that the CIT incorrectly 
interpreted Wheatland to mean that an article cannot be subject to an 
anti-circumvention inquiry if that article is not expressly included 
within the literal terms of the order. Specifically, the Federal 
Circuit reasoned that where Wheatland held that a minor alternation 
inquiry is inappropriate when an order expressly excludes the allegedly 
altered product, the order at issue contains no explicit exclusion of 
steel wire rod with a diameter that is less than 5.00 mm.\21\ The 
Federal Circuit also held that substantial evidence supports the 
Department's determination that small-diameter steel wire rod was not 
commercially available prior to the Order, notwithstanding that some 
small-diameter steel wire rod was in existence at some prior time in 
non-investigated countries.\22\ Accordingly, the Federal Circuit held 
that the Department's initial finding in the Final Determination that 
Deacero's entries of wire rod with an actual diameter of 4.75 mm to 
5.00 mm constitute a circumventing minor alteration of the Order was in 
accordance with law and supported by substantial evidence.\23\
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    \20\ See Deacero IV, 817 F.3d at 1337-39, citing to Deacero I, 
942 F. Supp. 2d at 1328-1332 quoting Wheatland Tube Co. v. United 
States, 161 F.3d 1365, 1370 (Fed. Cir. 1998) (Wheatland).
    \21\ See Deacero IV, 817 F.3d at 1338.
    \22\ Id. at 1339.
    \23\ Id. at 1339.
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Timken Notice

    In its decision in Timken, 893 F.2d at 341, as clarified by Diamond 
Sawblades, the Federal Circuit held that, pursuant to section 516A(e) 
of the Act, the Department must publish a notice of a court decision 
that is not ``in harmony'' with a Department determination and must 
suspend liquidation of entries pending a ``conclusive'' court decision. 
The Federal Circuit's judgement in Deacero IV sustaining the 
Department's original finding in the Final Determination that Deacero's 
entries of wire rod with an actual diameter of 4.75 mm to 5.00 mm 
constitute a minor alteration circumvention of the Order constitutes a 
final decision of the Court that is not in harmony with the 
Department's negative circumvention finding in the First Remand Results 
and Amended Final Determination. This notice is published in 
fulfillment of the publication requirements of Timken.

Amended Final Determination

    Because there is now a final court decision, we are amending the 
Amended Final Determination with respect to Deacero's entries of wire 
rod with an actual diameter of 4.75 mm to 5.00 mm. Based on the Federal 
Circuit's holding in Deacero IV, Deacero's entries of wire rod with an 
actual diameter of 4.75 mm to 5.00 mm are covered by the scope of the 
Order and, thus, subject to AD duties.
    Accordingly, the Department will instruct CBP to continue to 
suspend liquidation of the subject merchandise and, as of January 1, 
2015, the effective date for the Amended Final Determination giving 
effect to the CIT's since-reversed final judgment, to set the cash 
deposit rate for Deacero's entries of wire rod with an actual diameter 
of 4.75

[[Page 46053]]

mm to 5.00 mm to the applicable cash deposit rate as determined in 
administrative reviews.\24\ Specifically, for entries of small diameter 
wire rod from Deacero that entered the United States on or after 
January 1, 2015, whose entries were suspended at a zero cash deposit 
rate subject to the Amended Final Determination, we will instruct CBP 
to collect cash deposits at the following rates:
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    \24\ As of January 1, 2015, the cash deposit rate applicable to 
Deacero's entries of subject merchandise was 12.08 percent, as 
established in Carbon and Certain Alloy Steel Wire Rod From Mexico: 
Final Results of Administrative Review: 2010-2011, 78 FR 28190, 
28191 (May 14, 2013) (10/11 Final Results). Deacero's cash deposit 
rate was subsequently revised to zero percent in Carbon and Certain 
Alloy Steel Wire Rod From Mexico: Final Results of Administrative 
Review: 2012-2013, 80 FR 35626, 35627 (June 22, 2015) (12/13 Amended 
Final Results), and 1.13 percent in Carbon and Certain Alloy Steel 
Wire Rod From Mexico: Amended Final Results of Administrative 
Review: 2013-2014, 81 FR 41521, 41522 (June 27, 2016) (13/14 Amended 
Final Results.).

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                                                            Applicable
            On or after                    Before          cash deposit
                                                               rate
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January 1, 2015...................  June 22, 2015.......      \25\ 12.08
June 22, 2015.....................  May 19, 2016........       \26\ 0.00
May 19, 2016......................  ....................       \27\ 1.13
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Additionally, with regard to any of Deacero's unliquidated entries of 
wire rod with an actual diameter of 4.75 mm to 5.00 mm for which an 
administrative review has been completed, we will instruct CBP to 
assess AD duties at the applicable rates.
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    \25\ See 10/11 Final Results, 78 FR at 28191.
    \26\ See 12/13 Amended Final Results, 80 FR at 35627.
    \27\ See 13/14 Amended Final Results, 81 FR at 41522.
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Notification to Interested Parties

    This notice is issued and published in accordance with sections 
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.

    Dated: July 8, 2016.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2016-16803 Filed 7-14-16; 8:45 am]
BILLING CODE 3510-DS-P