[Federal Register Volume 84, Number 38 (Tuesday, February 26, 2019)]
[Notices]
[Pages 6129-6131]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-03240]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-583-856]
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
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On December 20, 2018, the United States Court of International
Trade (Court) issued a final judgment in Prosperity Tieh Enterprise
Co., Ltd. et al. v. United States, Consol. Court No. 16-00138; Slip Op.
18-175 (CIT Dec. 20, 2018), sustaining the Department of Commerce's
(Commerce) remand results for the final determination of the
antidumping investigation of certain corrosion-resistant steel products
(CORE) from Taiwan, covering the period of investigation (POI) April 1,
2014, through March 31, 2015. Commerce is notifying the public that the
Court has made a final judgment that is not in harmony with Commerce's
amended final determination of the antidumping investigation, and that
[[Page 6130]]
Commerce is amending the final determination.
DATES: Applicable December 30, 2018.
FOR FURTHER INFORMATION CONTACT: Shanah Lee, 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) 482-6386.
SUPPLEMENTARY INFORMATION:
Background
On June 2, 2016, Commerce published its Final Determination, and on
July 25, 2016, Commerce published its Amended Final Determination and
Order concerning the antidumping investigation of CORE from Taiwan.\1\
The plaintiffs in this litigation, consisting of the two-mandatory
respondents, Prosperity Tieh Enterprise Co., Ltd. (Prosperity) and Yieh
Phui Enterprise Co., Ltd. (Yieh Phui) timely filed complaints with the
Court challenging certain aspects of Commerce's investigation. The
petitioners in the investigation, AK Steel Corporation, Nucor
Corporation, Steel Dynamics, Inc., California Steel Industries, Inc.,
ArcelorMittal USA LLC, and United States Steel Corporation intervened
as defendant-intervenors.
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\1\ 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 (June 2, 2016), and accompanying Issues and Decision
Memorandum (IDM) (Final Determination), as amended by Certain
Corrosion-Resistant Steel Products from India, Italy, the People's
Republic of China, the Republic of Korea and Taiwan: Amended Final
Affirmative Antidumping Determination for India and Taiwan, and
Antidumping Duty Orders, 81 FR 48390 (July 25, 2016) (Amended Final
Determination and Order).
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On January 23, 2018, the Court remanded three aspects of Commerce's
findings, in Prosperity Tieh I.\2\ First, the Court held that
Commerce's determination to deny Yieh Phui's and Synn Industrial Co.,
Ltd.'s post-sale rebate adjustments ``violated its own regulations,''
and remanded to Commerce to ``correct this error.'' \3\ Second, the
Court remanded Commerce's determination to collapse Prosperity, Yieh
Phui, and Synn pursuant to its analysis under 19 CFR 351.401(f),
because ``the collapsing decision was based on erroneous findings of
fact.'' \4\ Third, the Court remanded Commerce's application of partial
adverse facts available to Prosperity based on Commerce's finding that
Prosperity misclassified certain of its products in reporting sales in
the databases by placing these products in the wrong yield strength
category.\5\ The Court held that, in reporting its yield strength,
``Prosperity complied with the instructions as Commerce wrote them.''
\6\ The Court ruled that ``Commerce may not use facts otherwise
available as a substitute for information that is now on the
administrative record of the investigation, but indicated that ``the
type of corrective action is a matter for Commerce to decide'' as to
this remanded issue.\7\
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\2\ See Prosperity Tieh Enterprise Co., Ltd. et al. v. United
States, Consol. Court No. 16-00138; Slip Op. 18-5, at 2, 31-32 (CIT
January 23, 2018) (Prosperity Tieh I).
\3\ Id. at 6-15.
\4\ Id. at 15-20.
\5\ Id. at 20-31.
\6\ Id. at 28.
\7\ Id. at 30-31.
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In its Final Results Redetermination, Commerce: (1) Granted, under
protest, downward price adjustments to the home market sales price
equal to the amount of Yieh Phui's post-sale rebates granted to the
company's home market customers; (2) continued to treat Prosperity,
Yieh Phui, and Synn as a single-entity consistent with 19 CFR
351.401(f); and (3) revised, under protest, the Yieh Phui/Prosperity/
Synn entity's weighted-average dumping margin by using Prosperity's
reported yield strength data.\8\ After accounting for all such changes
and issues in the Final Results Redetermination, the resulting
antidumping margin for the Yieh Phui/Prosperity/Synn entity is 3.66
percent.\9\ On December 20, 2018, the Court sustained the Final Results
Redetermination, in Prosperity II.\10\
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\8\ See Final Results of Redetermination Pursuant to Prosperity
Tieh Enterprise Co., Ltd. et al. v. United States, Consol. Court No.
16-00138; Slip. Op. 18-5, dated May 23, 2018 (Final Results
Redetermination).
\9\ Id. at 31.
\10\ See Prosperity Tieh Enterprise Co., Ltd. et al. v. United
States, Consol. Court No. 16-00138, Slip. Op. 18-175 (CIT December
20, 2018) (Prosperity II) (this opinion was made public on February
11, 2019).
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Timken Notice
In its decision in Timken,\11\ as clarified by Diamond
Sawblades,\12\ the Court of Appeals for the Federal Circuit (Federal
Circuit) held that, pursuant to section 516A of the Tariff Act of 1930,
as amended (Act), Commerce must publish a notice of a court decision
that is not ``in harmony'' with a Commerce determination and must
suspend liquidation of entries pending a ``conclusive'' court
decision.\13\ The Court's December 20, 2018, judgment constitutes a
final decision of the Court that is not in harmony with Commerce's
Final Determination and Amended Final Determination and Order. As such,
Commerce has published this notice in fulfillment of the publication
requirement of Timken.
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\11\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\12\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
\13\ See sections 516A(c) and (e) of the Act.
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Amended Final Determination and Amended Order
Because there is now a final court decision, Commerce is amending
the Final Determination and Amended Final Determination and Order with
respect to the weighted-average dumping margin for the Yieh Phui/
Prosperity/Synn entity. Furthermore, in the Amended Final Determination
and Order, and in accordance with section 735(c)(5)(A) of the Act, for
companies not individually investigated, we applied an ``all-others''
rate of 10.34 percent.\14\ This rate was determined based on assigning
the Yieh Phui/Prosperity/Synn entity's rate as the all-others rate.\15\
As noted above, the Yieh Phui/Prosperity/Synn's amended weighted-
average dumping margin is now 3.66 percent. Therefore, for purposes of
this amended Final Determination, Commerce will instruct CBP that the
all-others rate is to be amended to 3.66 percent.\16\ Accordingly, the
revised weighted-average dumping margin for the collapsed Yieh Phui/
Prosperity/Synn entity and for all-others is as follows:
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\14\ See Amended Final Determination and Order, 81 FR at 48391;
Final Determination, 81 FR at 35314.
\15\ See Final Determination, 81 FR at 35314.
\16\ See United States Steel Corp. v. United States, Slip Op.
18-139, at 8 (CIT October 17, 2018).
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Weighted-
average
Producer dumping
margin
(percent)
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Prosperity Tieh Enterprise Co., Ltd., Yieh Phui Enterprise 3.66
Co., Ltd., and Synn Industrial Co., Ltd....................
All-Others.................................................. 3.66
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Cash Deposit Requirements
Since the Final Determination, Commerce has established a new cash
deposit rate for Prosperity and Yieh Phui/Synn.\17\ Therefore, this
amended final determination does not change the
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later-established cash deposit rates for those producers and/or
exporters. For all-other producers and/or exporters, except for
companies that subsequently received their own rates in the first
administrative review,\18\ Commerce will issue revised cash deposit
instructions to U.S. Customs and Border Protection, adjusting the cash
deposit rate for all-other producers and/or exporters to 3.66 percent,
effective December 30, 2018.
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\17\ See Certain Corrosion-Resistant Steel Products from Taiwan:
Final Results of Antidumping Administrative Review; 2016-2017, 83 FR
64527 (December 17, 2018) (First Administrative Review Final
Results). As a result of this administrative review, Commerce
continued to treat Yieh Phui and Synn as a single entity and
determined that Prosperity should no longer be collapsed with Yieh
Phui and Synn.
\18\ Id., at 64528.
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Lastly, we note that, at this time, Commerce remains enjoined by
Court order from liquidating entries that were produced and/or exported
by Prosperity and imported by Prosperity Tieh USA, that were the
subject of the First Administrative Review Final Results, and that
were entered, or withdrawn from warehouse, on or after June 2, 2016, up
to and including June 30, 2017. These entries will remain enjoined
pursuant to the terms of the injunction during the pendency of any
appeals process.
Notification to Interested Parties
This notice is issued and published in accordance with sections
516A(e), 751(a)(1), and 777(i)(1) of the Act.
Dated: February 19, 2019.
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. 2019-03240 Filed 2-25-19; 8:45 am]
BILLING CODE 3510-DS-P