[Federal Register Volume 84, Number 105 (Friday, May 31, 2019)]
[Notices]
[Pages 25237-25238]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11397]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-552-818, C-552-819]
Certain Steel Nails From the Socialist Republic of Vietnam:
Notice of Court Decision Not in Harmony With Final Scope Ruling and
Notice of Amended Final Scope Ruling Pursuant to Court Decision
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: The Department of Commerce (Commerce) is notifying the public
that the Court of International Trade's (CIT) final judgment in this
case is not in harmony with Commerce's final scope ruling. Commerce,
therefore, finds that certain zinc anchors imported by OMG, Inc. (OMG),
are not within the scope of the antidumping and countervailing duty
orders on certain steel nails from the Socialist Republic of Vietnam
(Vietnam).
DATES: Applicable May 24, 2019.
FOR FURTHER INFORMATION CONTACT: Yasmin Bordas at (202) 482-3813, AD/
CVD Operations, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230.
SUPPLEMENTARY INFORMATION:
Background
On August 5, 2016, OMG, an importer of zinc anchors, filed a
request with Commerce for a scope ruling that its zinc anchors should
be excluded from the scope of the antidumping and countervailing duty
Orders \1\ on certain steel nails from Vietnam.\2\ OMG described the
zinc anchors as a unitary article of commerce consisting of two parts:
(1) A zinc alloy body; and (2) a zinc plated steel pin.\3\
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\1\ See Certain Steel Nails from the Socialist Republic of
Vietnam: Countervailing Duty Order, 80 FR 41006 (July 14, 2015);
Certain Steel Nails from the Republic of Korea, Malaysia, the
Sultanate of Oman, Taiwan, and the Socialist Republic of Vietnam:
Antidumping Duty Orders, 80 FR 39994 (July 13, 2015) (collectively,
the Orders).
\2\ See ``Certain Steel Nails from the Socialist Republic of
Vietnam: Scope Ruling Request,'' dated August 5, 2016.
\3\ Id. at 3, 23.
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On February 6, 2017, Commerce issued its Final Scope Ruling, in
which it determined that OMG's zinc anchors are unambiguously within
the scope of the Orders based upon the plain meaning of the Orders and
the description of the zinc anchors contained in OMG's scope ruling
request and supplemental questionnaire
[[Page 25238]]
responses.\4\ Commerce also found that several factors under 19 CFR
351.225(k)(1)--particularly the petition, the final report of the
International Trade Commission (ITC), and a prior scope ruling--further
supported Commerce's determination that OMG's zinc anchors fall within
the scope of the Orders.\5\ As a result of the Final Scope Ruling,
Commerce instructed U.S. Customs and Border Protection (CBP) to
continue suspension of liquidation of entries of OMG's zinc anchors.\6\
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\4\ See Antidumping and Countervailing Duty Orders on Certain
Steel Nails from the Socialist Republic of Vietnam: Final Scope
Ruling on OMG, Inc.'s Zinc Anchors (Final Scope Ruling), dated
February 6, 2017 at 9-10.
\5\ Id. at 10.
\6\ See Message Number 7041303, dated February 10, 2017; see
also Message Number 7041301, dated February 10, 2017.
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OMG challenged the Final Scope Ruling before the CIT, and on May
29, 2018, the CIT remanded Commerce's scope ruling.\7\ In its Remand
Order, the CIT held that OMG's zinc anchor is not a ``nail'' within the
plain meaning of the word and is therefore outside the scope of the
Orders.\8\ In determining the definition of a ``nail,'' the CIT
consulted The American Heritage Dictionary of the English Language and
Webster's Third New International Dictionary of the English Language
(Unabridged).\9\ The CIT held that both of these sources unambiguously
present ``a `single clearly defined or stated meaning {of a
nail{time} ': A slim, usually pointed object used as a fastener
designed for impact insertion.'' \10\
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\7\ See OMG, Inc. v. United States, Court No. 17-00036, Slip.
Op. 18-63 (CIT 2018) (Remand Order).
\8\ See Remand Order, Slip Op. 18-63 at 9.
\9\ Id.
\10\ Id. at 9-10.
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The CIT held that although the steel pin fits the common definition
of a nail, the zinc anchor as a whole, does not.\11\ According to the
CIT, because OMG's zinc anchor is a unitary article of commerce, the
entire product, not just a component part, must fit the definition of a
nail to fall within the scope of the Orders.\12\ The CIT concluded that
because OMG's zinc anchors are composed of a steel pin and a zinc body,
the entire product is not a nail.\13\ Additionally, the CIT held that
because the relevant industry classifies anchors with a steel pin as
anchors, not nails, trade usage further supports the conclusion that
OMG's zinc anchors are not nails.\14\ The CIT remanded the Final Scope
Ruling to Commerce for further consideration consistent with the CIT's
opinion.\15\ The CIT also directed Commerce to issue appropriate
instructions to CBP regarding the suspension of liquidation of OMG's
zinc anchors.\16\
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\11\ Id. at 10.
\12\ Id.
\13\ Id.
\14\ Id. at 10-11.
\15\ Id. at 11.
\16\ Id.
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Pursuant to the CIT's instructions, on remand, under protest,
Commerce found that OMG's zinc anchors do not fall within the scope of
the Orders.\17\ On May 14, 2019, the CIT sustained Commerce's Final
Remand Results.\18\
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\17\ See Final Results of Redetermination Pursuant to Court
Remand, OMG, Inc. v. United States, Court No. 17-00036, Slip Op. 18-
63 (CIT May 29, 2018), dated August 27, 2018 (Final Remand Results).
\18\ See OMG, Inc. v. United States, Court No. 17-00036, Slip
Op. 19-58, No. 17-00036 (CIT 2019).
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Timken Notice
In its decision in Timken,\19\ as clarified by Diamond
Sawblades,\20\ the Court of Appeals for the Federal Circuit (CAFC) held
that, pursuant to sections 516A(c) and (e) of the Tariff Act of 1930,
as amended (the Act), Commerce must publish a notice of 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 May 14, 2019, judgment in this case, sustaining Commerce's
decision in the Final Remand Results that OMG's zinc anchors fall
outside the scope of the Orders, constitutes a final decision of that
court that is not in harmony with the Final Scope Ruling. This notice
is published in fulfillment of the publication requirements of Timken.
Accordingly, Commerce will continue the suspension of liquidation of
OMG's zinc anchors pending expiration of the period of appeal or, if
appealed, pending a final and conclusive court decision.
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\19\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed.
Cir. 1990) (Timken).
\20\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Scope Ruling
Because there is now a final court decision with respect to this
case, Commerce is amending its Final Scope Ruling and finds that the
scope of the Orders does not cover the zinc anchors specified in OMG's
Scope Ruling Request. Commerce will instruct CBP that the cash deposit
rate will be zero percent for the zinc anchors subject to OMG's scope
ruling request. In the event that the CIT's ruling it not appealed, or
if appealed, upheld by the CAFC, Commerce will instruct CBP to
liquidate entries of OMG's zinc anchors without regard to antidumping
and/or countervailing duties, and to lift suspension of liquidation of
such entries.
Notification to Interested Parties
This notice is issued and published in accordance with section
516A(e)(1) of the Act.
Dated: May 23, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-11397 Filed 5-30-19; 8:45 am]
BILLING CODE 3510-DS-P