[Federal Register Volume 83, Number 236 (Monday, December 10, 2018)]
[Notices]
[Pages 63474-63478]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2018-26653]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-909]


Certain Steel Nails From the People's Republic of China: Notice 
of Court Decision Not in Harmony With the Final Results of the First 
Antidumping Duty Administrative Review and Notice of Amended Final 
Results of the First Antidumping Duty Administrative Review

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.
SUMMARY: On October 5, 2018, the United States Court of International 
Trade (CIT or Court) entered final judgment in The Stanley Works 
(Langfang) Fastening Systems Co., Ltd. v. United States, sustaining the 
final results of remand redetermination pertaining to the first 
administrative review of the antidumping duty order on certain steel 
nails from the People's Republic of China (China), covering the period 
of review (POR) of January 23, 2008 through July 31, 2009. The 
Department of Commerce (Commerce) is notifying the public that the 
final judgment in this case is not in harmony with Commerce's final 
results of the first administrative review or the

[[Page 63475]]

amended final results of the first administrative review, and that, 
therefore, Commerce is amending the final results with respect to its 
partial rescission of review and liquidation of certain entries that 
received combination rates, the dumping margin assigned to the sole 
mandatory respondent, and the dumping margin assigned to the separate 
rate companies.

DATES: Applicable October 15, 2018.

FOR FURTHER INFORMATION CONTACT: Paul Walker, Office V, Enforcement and 
Compliance, International Trade Administration, U.S. Department of 
Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: 
(202) 482-0413.

SUPPLEMENTARY INFORMATION:

Background

    In the final results of the first administrative review \1\ of the 
antidumping duty order on certain steel nails from China, Commerce 
calculated a weighted-average dumping margin of 13.90 percent for the 
sole cooperating mandatory respondent, The Stanley Works (Langfang) 
Fastening Systems Co., Ltd. (Stanley), and assigned that margin to the 
22 companies who had demonstrated their eligibility for a separate rate 
(The Separate Rate Companies).\2\ Commerce also rescinded the review 
with respect to certain companies that certified that they made no 
shipments of subject merchandise during the POR.\3\ In the amended 
final results of the first administrative review,\4\ after correcting 
two ministerial errors, Commerce revised Stanley's dumping margin to 
10.63 percent, again assigning that rate to the Separate Rate 
Companies.
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    \1\ See Certain Steel Nails from the People's Republic of China: 
Final Results of the First Antidumping Duty Administrative Review, 
76 FR 16379 (March 23, 2011) (Final Results 2008-2009), and 
accompanying Issues & Decision Memorandum (Final Results IDM).
    \2\ The Separate Rate Companies are: (1) Aironware (Shanghai) 
Co., Ltd.; (2) Chiieh Yung Metal Ind. Corp.; (3) China Staple 
Enterprise (Tianjin) Co., Ltd.; (4) Dezhou Hualude Hardware Products 
Co., Ltd.; (5) Faithful Engineering Products Co., Ltd.; (6) Hengshui 
Mingyao Hardware & Mesh Products Co., Ltd.; (7) Huanghua Jinhai 
Hardware Products Co., Ltd.; (8) Huanghua Xionghua Hardware Products 
Co., Ltd.; (9) Jisco Corporation (``Jisco''); (10) Koram Panagene 
Co., Ltd. (``Koram Panagene''); (11) Nanjing Yuechang Hardware Co., 
Ltd.; (12) Qidong Liang Chyuan Metal Industry Co., Ltd.; (13) 
Qingdao D & L Group Ltd.; (14) Romp (Tianjin) Hardware Co., Ltd.; 
(15) Shandong Dinglong Import & Export Co., Ltd.; (16) Shanghai Jade 
Shuttle Hardware Tools Co., Ltd.; (17) Shouguang Meiqing Nail 
Industry Co., Ltd.; (18) Tianjin Jinchi Metal Products Co., Ltd.; 
(19) Tianjin Jinghai County Hongli Industry & Business Co., Ltd.; 
(20) Tianjin Zhonglian Metals Ware Co., Ltd.; (21) Wintime Import & 
Export Corporation Limited of Zhongshan; and (22) Zhejiang Gem-Chun 
Hardware Accessory Co., Ltd.
    \3\ See Final Results 2008-2009, 76 FR at 16380. The no shipment 
companies are: (1) Besco Machinery Industry (Zhejiang) Co., Ltd.; 
(2) Certified Products International Inc.; (3) CYM (Nanjing) Nail 
Manufacture Co., Ltd.; (4) Dagang Zhitong Metal Products Co., Ltd.; 
(5) Hebei Super Star Pneumatic Nails Co., Ltd.; (6) Hong Kong Yu Xi 
Co., Ltd.; (7) Senco-Xingya Metal Products (Taicang) Co., Ltd.; (8) 
Shanghai Chengkai Hardware Product Co., Ltd.; (9) Shanghai March 
Import & Export Company Ltd.; (10) Shaoxing Chengye Metal Producting 
Co., Ltd.; (11) Suzhou Yaotian Metal Products Co., Ltd.; (12) 
Tianjin Chentai International Trading Co., Ltd.; (13) Tianjin Jurun 
Metal Products Co., Ltd.; (14) Tianjin Longxing (Group) Huanyu Imp. 
& Exp. Co., Ltd.; (15) Tianjin Port Free Trade Zone Xiangtong Intl. 
Industry & Trade Corp.; (16) Tianjin Shenyuan Steel Producting Group 
Co., Ltd.; (17) Wuhu Shijie Hardware Co., Ltd.; and (18) Wuxi 
Chengye Metal Products Co., Ltd.
    \4\ See Certain Steel Nails from the People's Republic of China: 
Amended Final Results of the First Antidumping Duty Administrative 
Review, 76 FR 23279 (April 26, 2011) (Amended Final Results 2008-
2009).
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    The Final Results 2008-2009 and Amended Final Results 2008-2009 
were challenged in two separate cases before the CIT.\5\ After certain 
claims were dismissed, eight distinct claims remained before the Court. 
Of those claims, the Court sustained several in two prior rulings; \6\ 
other claims were subjected to voluntary \7\ or court-ordered \8\ 
remand redeterminations, before being sustained by the CIT on October 
5, 2018.\9\ Between the three total court decisions, and four 
cumulative remand redeterminations, two claims resulted ultimately in 
changes to Final Results 2008-2009 and Amended Final Results 2008-2009, 
as explained below.
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    \5\ See The Stanley Works (Langfang) Fastening Systems Co., Ltd. 
v. United States, CIT Case No. 11-102; and Mid Continent Nail Corp. 
v. United States, CIT Case No. 11-119. The cases were partially 
consolidated into Case No. 11-102 in 2011, then fully consolidated 
prior to the Court's final ruling on October 5, 2018.
    \6\ See The Stanley Works (Langfang) Fastening Systems Co., Ltd. 
v. United States, 964 F.Supp.2d 1311, 1324 (Ct. Int'l Trade 2013) 
(Stanley Works I); and Mid Continent Nail Corp. v. United States, 
949 F.Supp.2d 1247, 1263-1264 (Ct. Int'l Trade 2013) (Mid 
Continent).
    \7\ See Stanley Works I at 1317.
    \8\ See Stanley Works I at 1324; Mid Continent at 1279-1280.
    \9\ See The Stanley Works (Langfang) Fastening Systems, Co., 
Ltd. et al v. United States, Court No. 11-102, Slip Op. 18-134 (CIT 
Oct. 5, 2018) (Stanley Works II).
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    The court sustained Commerce on several issues in its two prior 
rulings. Briefly, those issues pertained to: Whether net U.S. prices 
and normal value were calculated on the same basis; the propriety of 
using certain data to value electricity; deciding not to apply facts 
otherwise available, despite missing factors of production; electing 
not to use intermediate input methodology to calculate normal value; 
and, limiting to two the number of mandatory respondents.\10\ This left 
two issues unresolved, discussed below.
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    \10\ See Stanley Works I at 1324; Mid Continent at 1279-1280.
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Treatment of Certain Entries Under Certified Products International 
Inc.'s Combination Rates

    The first issue pertains to the treatment of entries of subject 
merchandise attributed to Certified Products International Inc. (CPI), 
a Taiwanese reseller that does not produce steel nails but, rather, 
purchases them from various unaffiliated producers in China and resells 
them to customers in the United States. In the first administrative 
review, CPI claimed that it had no shipments of subject merchandise 
during the POR; however, Commerce obtained data from U.S. Customs and 
Border Protection (CBP) that showed entries under 23 producer/exporter 
combination rates which identified CPI as the exporter. Therefore, 
Commerce considered whether CPI or its unaffiliated Chinese producers 
were the respondent(s), based on which party had knowledge that the 
merchandise was destined for the U.S. market. CPI asserted that it had 
not exported any subject merchandise during the review period and 
should not, therefore, be considered the exporter of the entries 
attributed to it. The company indicated, rather, that it had purchased 
nails for resale from 13 of the 23 unaffiliated producers that had 
entered subject merchandise into the United States during the POR using 
CPI's combination rates. Specifically, CPI acknowledged that it had 
sourced nails from these 13 companies and stated that these 13 
suppliers had knowledge that the sales were ultimately destined for the 
United States. CPI did not acknowledge having used the remaining 10 
combination rates during the review period.
    In the Final Results 2008-2009, based on the information from CPI 
and its review of the record evidence, Commerce determined, for the 
entries under the combination rates associated with the 13 producers 
that had knowledge that goods sold to CPI were destined for the United 
States, to instruct CBP to assess antidumping duties at the applicable 
separate rate for the respective producers.\11\ For the entries 
associated with the other 10 combinations that Commerce determined were 
misattributed to CPI, Commerce indicated that it would instruct CBP to 
assess antidumping duties at the rate in effect at the time of

[[Page 63476]]

the entry.\12\ Accordingly, Commerce rescinded the review with respect 
to CPI.\13\ Commerce's determination was challenged in CIT Court No. 
11-119.
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    \11\ See Final Results IDM at Comment 9. Pursuant to the Amended 
Final Results 2008-2009, the applicable separate rate was 10.63 
percent.
    \12\ Id.
    \13\ See Final Results 2008-2009, 76 FR at 16380.
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    In Mid Continent, the CIT held that Commerce's determination 
conflicted with the approach taken on the same issue in cases involving 
market economies, and remanded the issue for further consideration, 
particularly in light of a subsequent rule change \14\ which was 
finalized after the Final Results 2008-2009 were issued.\15\
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    \14\ See Non-Market Economy Antidumping Proceedings: Assessment 
of Antidumping Duties, 76 FR 65694 (October 24, 2011) (NME Reseller 
Policy Statement).
    \15\ See Mid Continent at 1287-1288.
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    In the Mid Continent First Remand Redetermination, Commerce found 
that the entries attributed to CPI's combination rates should be 
treated in a manner consistent with the NME Reseller Policy Statement. 
Therefore, Commerce determined to amend its previous rescission of the 
administrative review with respect to CPI, instead issuing final 
results of review with respect to CPI. Specifically, with regard to 
entries associated with the 10 combination rates that CPI did not 
acknowledge using, Commerce determined it appropriate to instruct CBP 
to liquidate those entries at the China-wide rate of 118.04 percent, 
because record evidence demonstrated that none of the companies 
associated with the 10 combination rates made the relevant export 
sales. Commerce continued to find the entries associated with the 
remaining 13 combination rates entitled to liquidation at the 
applicable separate rate for the respective producers, each of whom had 
knowledge of sales to the United States. Further, because of an 
intervening remand redetermination in the separate first administrative 
review litigation in CIT Court No. 11-102, Commerce determined to apply 
the revised separate rate of 15.43 percent to such entries.\16\
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    \16\ See Final Results of Redetermination Pursuant to Mid 
Continent Nail Corporation v. United States, Slip Op. 13-115 (March 
5, 2014) (Mid Continent First Remand Redetermination), referring to 
Final Results of Redetermination Pursuant to Stanley Works 
(Langfang) Fastening Systems Co., Ltd. et al v. United States, Slip 
Op. 13-118 (March 5, 2014) (Stanley Works First Remand 
Redetermination).
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    Several months later, before the Court issued a decision, Commerce 
requested a voluntary remand to address part of its first remand 
redetermination, which was granted.\17\ In the Mid Continent Second 
Remand Redetermination, Commerce sought to clarify the rate or rates at 
which entries associated with three of the producers within the 
grouping of 13 combination rates should be liquidated, because the 
underlying administrative review had been rescinded for those three 
producers.\18\ Consequently, Commerce found that the entries attributed 
to the three combination rates associated with producers for which the 
underlying administrative review had been rescinded should be 
liquidated at the rate in effect at the time of entry, not the separate 
rate calculated in the review.\19\
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    \17\ See Mid Continent Nail Corporation v. United States, Court 
No. 11-119, Order of Sept. 30, 2015.
    \18\ See Certain Steel Nails from the People's Republic of 
China: Notice of Partial Rescission of the First Antidumping Duty 
Administrative Review, 75 FR 43149, 43149-43150 (July 23, 2010).
    \19\ See Final Results of Redetermination Pursuant to Mid 
Continent Nail Corporation v. United States, Slip Op. 13-115 (Nov. 
13, 2015) (Mid Continent Second Remand Redetermination). The names 
of the three producers, which constitute business proprietary 
information (BPI), are identified in the BPI version of the remand 
redetermination.
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    On October 5, 2018, the CIT sustained Commerce's remand 
redeterminations pertaining to the treatment of entries under CPI's 
combination rates. The CIT held that, because there was no further 
challenge as to which entries would receive the CPI combination rates, 
the Court would not address the issue further.\20\ In addition, in 
response to challenges by certain companies, including CPI, the Court 
sustained Commerce's remand redetermination to apply the revised 
separate rate of 15.43 percent to entries under combination rates 
associated with the 10 producers that had knowledge that goods sold to 
CPI were destined for the United States, and that remained subject to 
review.\21\ Thus, in all respects, Commerce's treatment of entries 
under CPI's combination rates was sustained.
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    \20\ See Stanley Works II, Slip Op. 18-134 at 7.
    \21\ Id. at 16-18.
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Surrogate Financial Statements

    The second issue pertains to Commerce's selection of financial 
statements for surrogate financial ratios. In the Final Results 2008-
2009, Commerce selected the financial statements of three companies to 
use as the source of surrogate financial ratios in the underlying 
review: Bansidhar Granites Private Limited (Bansidhar), J&K Wire & 
Steel Industries (J&K), and Nasco Steels Private Ltd. (Nasco). Commerce 
found that each of these companies produced steel nails, an 
``identical'' product, and declined to use the financial statements 
from a fourth company, Sundram Fasteners Ltd. (Sundram), finding that 
Sundram did not manufacture steel nails or comparable merchandise.\22\ 
Commerce's determination was challenged in CIT Court No. 11-102.
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    \22\ See Final Results 2008-2009 and IDM at Comment 2.
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    During litigation, Commerce published the final results of the 
second administrative review of steel nails from China.\23\ In the 
Second Review Final Results, Commerce stated that it had refined its 
practice with respect to the determination of whether a company is a 
producer of ``identical'' or ``comparable'' merchandise within the 
context of calculating surrogate values for manufacturing overhead, 
general expenses and profit.\24\ Given the modified practice, Commerce 
sought a voluntary remand in the first administrative review 
litigation, to reconsider its determination concerning the selection of 
financial statements. The Court granted Commerce's request.\25\
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    \23\ See Certain Steel Nails from the People's Republic of 
China: Final Results and Final Partial Rescission of the Second 
Antidumping Duty Administrative Review, 77 FR 12556 (March 1, 2012) 
(Second Review Final Results), and accompanying Issues & Decision 
Memorandum (Second Review IDM).
    \24\ See Second Review IDM at Comment 2.
    \25\ See Stanley Works I, 964 F. Supp. 2d at 1342.
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    In the Stanley Works First Remand Redetermination, Commerce 
continued to find it appropriate to use the financial statements of 
Bansidhar and Nasco, two of the three companies selected in the Final 
Results 2008-2009, to calculate the surrogate financial ratios. 
Commerce found, however, that it was no longer appropriate to use the 
financial statements of the third initially-selected company, J&K, and 
instead found it appropriate to use the financial statements of another 
company, Sundram, that had been rejected previously. In particular, 
Commerce found Sundram to be a producer of comparable merchandise but 
excluded J&K as a producer of non-comparable merchandise. Commerce also 
found that the financial statements of all four companies showed no 
receipt of countervailable subsidies, that the differences in the 
companies' scale of production did not render the data unreasonable, 
that the consumption of steel wire rod--the main input in the 
production of nails--was not determinative of whether a company is a 
producer of comparable merchandise, and that Sundram's financial 
statements were not aberrational. Based on this redetermination, 
Commerce recalculated the surrogate financial ratios and the margin for 
Stanley, and

[[Page 63477]]

the Separate Rate Companies, was revised to 15.43 percent.\26\
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    \26\ See Final Results of Redetermination Pursuant to Stanley 
Works (Langfang) Fastening Systems Co., Ltd. et al v. United States, 
Slip Op. 13-118 (March 5, 2014) (Stanley Works First Remand 
Redetermination).
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    Several months later, before the Court issued a decision, Commerce 
requested a voluntary remand to address part of its first remand 
redetermination, which was granted.\27\ In the Stanley Works Second 
Remand Redetermination, Commerce corrected its error in using Nasco's 
overhead ratio calculated in the Final Results 2008-2009, rather than 
that used in the Amended Final Results 2008-2009. Commerce relied on 
this ratio in a comparison with Sundram's overhead ratio to demonstrate 
why Sundram's financial statements are not aberrational. Commerce found 
that there were no ``extraordinary'' items within Sundram's financial 
statements, and that inherent variations in overhead ratios derived 
from a limited number of available financial statements cannot provide 
a basis for finding one company's ratio aberrational.\28\ Stanley 
raised numerous arguments related to Commerce's remand 
redeterminations.
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    \27\ See Stanley Works (Langfang) Fastening Systems Co., Ltd. et 
al v. United States, Court No. 11-102, Order of Feb. 18, 2015.
    \28\ See Final Results of Redetermination Pursuant to Stanley 
Works (Langfang) Fastening Systems Co., Ltd. et al v. United States, 
Slip Op. 13-118 (April 16, 2015) (Stanley Works Second Remand 
Redetermination).
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    On October 5, 2018, the CIT sustained Commerce's remand 
redeterminations pertaining to the selection of financial statements 
for surrogate financial ratios. First, the Court affirmed Commerce's 
determination that Commerce did not have a reason to believe or suspect 
that Sundram may have received countervailable subsidies based on the 
record information.\29\ Second, the Court upheld Commerce's revised 
methodology for determining that J&K was not a suitable surrogate 
financial company because its activities related primarily to the 
production and sale of non-comparable merchandise, while finding that 
Sundram produced comparable merchandise.\30\ Third, the Court held that 
Commerce's finding that Sundram's overhead ratios were not aberrational 
or distortive is supported by substantial evidence, and could be 
included in the averaging of financial data for surrogate value 
purposes.\31\ Accordingly, the Court affirmed applying the revised 
margin, 15.43 percent, to Stanley and the Separate Rate Companies.\32\
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    \29\ See Stanley Works II, Slip Op. 18-134 at 9-13.
    \30\ Id. at 13-14.
    \31\ Id. at 14-15.
    \32\ Id. at 8 and 18.
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Timken Notice

    In its decision in Timken,\33\ as clarified by Diamond 
Sawblades,\34\ the 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 that is not 
``in harmony'' with Commerce's determination and must suspend 
liquidation of entries pending a ``conclusive'' court decision. The 
CIT's October 5, 2018, final judgment sustaining issues related to the 
treatment of the entries associated with CPI's combinations rates, and 
sustaining application of the revised margin calculated for Stanley and 
the Separate Rate Companies, constitutes a final decision of that court 
that is not in harmony with the Final Results 2008-2009 and Amended 
Final Results 2008-2009. This notice is published in fulfillment of the 
publication requirements of Timken. Accordingly, Commerce will continue 
the suspension of liquidation of the subject merchandise pending a 
final and conclusive court decision.
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    \33\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (Timken).
    \34\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Second Amended Final Results 2008-2009

    Because there is now a final court decision, Commerce is amending 
the Final Results 2008-2009 and Amended Final Results 2008-2009 with 
respect to the rate assigned to Stanley and the 22 Separate Rate 
Companies listed below. Accordingly, the revised weighted-average 
dumping margins for these companies are as follows:

------------------------------------------------------------------------
                                                       Weighted-average
                      Exporter                          dumping margin
                                                           (percent)
------------------------------------------------------------------------
The Stanley Works (Langfang) Fastening Systems Co.,                15.43
 Ltd................................................
Aironware (Shanghai) Co., Ltd.......................               15.43
Chiieh Yung Metal Ind. Corp.........................               15.43
China Staple Enterprise (Tianjin) Co., Ltd..........               15.43
Dezhou Hualude Hardware Products Co., Ltd...........               15.43
Faithful Engineering Products Co., Ltd..............               15.43
Hengshui Mingyao Hardware & Mesh Products Co., Ltd..               15.43
Huanghua Jinhai Hardware Products Co., Ltd..........               15.43
Huanghua Xionghua Hardware Products 10.63 Co., Ltd..               15.43
Jisco Corporation...................................               15.43
Koram Panagene Co., Ltd.............................               15.43
Nanjing Yuechang Hardware Co., Ltd..................               15.43
Qidong Liang Chyuan Metal Industry Co., Ltd.........               15.43
Qingdao D & L Group Ltd.............................               15.43
Romp (Tianjin) Hardware Co., Ltd....................               15.43
Shandong Dinglong Import & Export Co., Ltd..........               15.43
Shanghai Jade Shuttle Hardware Tools Co., Ltd.......               15.43
Shouguang Meiqing Nail Industry Co., Ltd............               15.43
Tianjin Jinchi Metal Products Co., Ltd..............               15.43
Tianjin Jinghai County Hongli Industry & Business                  15.43
 Co., Ltd...........................................
Tianjin Zhonglian Metals Ware Co., Ltd..............               15.43
Wintime Import & Export Corporation Limited of                     15.43
 Zhongshan..........................................
Zhejiang Gem-Chun Hardware Accessory Co., Ltd.......               15.43
------------------------------------------------------------------------


[[Page 63478]]

    Commerce is also amending the Amended Final Results 2008-2009 with 
respect to CPI. In particular, Commerce is amending its previous 
rescission of the administrative review and is no longer rescinding the 
review with respect to CPI but, instead, is issuing final results of 
review with respect to CPI. Moreover, Commerce intends to issue 
instructions to CBP to liquidate entries entered under CPI's 23 
combination rates as follows. For the 10 combination rates that CPI 
does not acknowledge using, Commerce intends to instruct CBP to 
liquidate entries under those 10 combination rates at the China-wide 
rate of 118.04 percent because the record evidence demonstrates that 
none of the companies associated with these 10 combination rates made 
the relevant export sale. For the 10 combination rates that CPI does 
acknowledge using and for which each producer had knowledge the 
merchandise was destined for the United States, Commerce intends to 
instruct CBP to liquidate entries under those 10 combination rates at 
the separate rate of 15.43 percent, determined for each respective 
producer during the administrative review. For the remaining three 
combination rates, Commerce intends to instruct CBP to liquidate such 
entries at the rate in effect at the time of entry, because the three 
producers at issue were not included in the final results of the 
administrative review.
    In the event that the CIT's ruling is not appealed, or, if 
appealed, is upheld by a final and conclusive court decision, Commerce 
will instruct CBP to assess antidumping duties in accordance with the 
above.

Cash Deposit Requirements

    The cash deposit rates for Stanley and the 22 Separate Rate 
Companies have changed as a result of subsequent administrative 
reviews. Therefore, this amended final results does not change the 
later-established cash deposit rates for these companies.

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: December 3, 2018.
Gary Taverman,
Deputy Assistant Secretary for Antidumping and Countervailing Duty 
Operations, performing the non-exclusive functions and duties of the 
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2018-26653 Filed 12-7-18; 8:45 am]
 BILLING CODE 3510-DS-P