[Federal Register Volume 84, Number 107 (Tuesday, June 4, 2019)]
[Notices]
[Pages 25743-25744]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-11578]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-580-881]
Certain Cold Rolled Steel Flat Products From the Republic of
Korea: Notice of Court Decision Not in Harmony With Final Results and
Notice of Amended Final Results of the Antidumping Duty Investigation
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On February 26, 2019, the United States Court of International
Trade (the Court) issued final judgment in Hyundai Steel Company. v.
United States, Court No. 16-00228, sustaining the Department of
Commerce's (Commerce) final results of the redetermination pursuant to
remand. Consistent with the decision of the United States Court of
Appeals for the Federal Circuit (Federal Circuit) in Timken Co., v
United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken), as clarified by
Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed.
Cir. 2010) (Diamond Sawblades), Commerce is notifying the public that
the final judgment in this case is not in harmony with Commerce's
Amended Final Results and Antidumping Duty Order published on September
20, 2016 (Order). Commerce is amending the final results with respect
to the weighted-average dumping margin assigned to Hyundai Steel
Company (Hyundai Steel).
DATES: Applicable March 8, 2019.
FOR FURTHER INFORMATION CONTACT: Michael J. Heaney or Daniel Deku, AD/
CVD Operations, Office VI, Enforcement and Compliance, International
Trade Administration, U.S. Department of Commerce, 1401 Constitution
Avenue NW, Washington, DC 20230; telephone: (202) 482-4475 or (202)
482-5075, respectively.
SUPPLEMENTARY INFORMATION:
Background
Commerce published the Final Determination on July 29, 2016,\1\ and
issued the antidumping duty order on September 20, 2016.\2\ Hyundai
Steel filed an action before the CIT to challenge several aspects of
Commerce's Final Determination.
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\1\ See Certain Cold-Rolled Steel Flat Products from the
Republic of Korea: Final Determination of Sales at Less Than Fair
Value, 81 FR 49953 (July 29, 2016) (Final Determination).
\2\ See Certain Cold Rolled Steel Flat Products from Brazil,
India, the Republic of Korea, and the United Kingdom: Amended Final
Affirmative Antidumping Determinations for Brazil and the United
Kingdom and Antidumping Duty Orders, 81 FR 64432 (September 20,
2016) (Order).
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After review, the Court sustained Commerce's determination that
Hyundai Steel failed to demonstrate that the affiliated parties who
supplied Hyundai Steel with home market movement, home market
warehousing, U.S. international freight, and U.S. inland freight
expenses did so on an arm's-length basis.\3\ The Court further
sustained Commerce's application of adverse facts available (AFA),
pursuant to sections 776(a) and (b) of the Tariff Act of 1930 (the
Act), as amended, to the affiliated parties who provided Hyundai Steel
with home market movement, home market warehousing, U.S. international
freight, and U.S. inland freight.\4\ Additionally, the Court sustained
Commerce's application of AFA to three product specifications reported
by Hyundai Steel.\5\
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\3\ See Hyundai Steel Company v. United States, Slip Op. 18-80
Court No., 16-00228 dated June 28, 2018 (Remand Order) at 20-22.
\4\ Id. at 22-31.
\5\ Id. at 38-43.
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However, the Court remanded to Commerce for further explanation or
reconsideration whether it intended to apply AFA to those U.S. sales
where: (1) Hyundai Steel used an unaffiliated freight provider to
supply domestic inland freight; or (2) Hyundai Steel incurred no
domestic inland freight charges in the U.S.\6\ While the Court found
that Commerce appropriately assigned an AFA freight amount to U.S.
sales for which Hyundai Steel secured freight services from affiliated
parties,\7\ the Court found Commerce offered no justification as to why
Commerce applied AFA freight amounts to U.S. sales for which Hyundai
Steel either: (1) Incurred no domestic inland freight or warehousing
expense; or (2) the domestic inland freight or warehousing was provided
by unaffiliated parties.\8\
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\6\ Id. at 34.
\7\ Id. at 22-31.
\8\ Id. at 34.
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Additionally, the Court determined that the AFA adjustment applied
to
[[Page 25744]]
Hyundai Steel's U.S. ``Spec C'' sales was not supported by substantial
evidence.\9\ In the Final Determination, as AFA, Commerce selected the
highest calculated rate for any other reported sale by Hyundai
Steel.\10\ The Court sustained the application of an AFA rate on
Hyundai Steel's Spec C sales.\11\ However, the Court found the U.S.
sale associated with the highest calculated rate for Hyundai Steel in
the Final Determination to be aberrational.\12\ The Court noted that
the U.S. sale selected as AFA was invoiced in a different manner than
other Hyundai Steel sales because of the nature of the product.\13\
Based on the foregoing, the Court remanded this matter to Commerce, and
directed Commerce to select a AFA margin which was not based on an
aberrational sale.\14\
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\9\ Id. at 43-46. ``Spec C'' sales are sales that Hyundai Steel
reported as commercial quality, which we determined to be of either
drawing or deep drawing quality. See Final Determination and
accompanying Issues and Decision Memorandum (IDM) at Comment 12.
\10\ See Final Determination and accompanying IDM at Comment 12.
\11\ See Remand Order at 39-41.
\12\ Id. at 43-46.
\13\ Id. at 45.
\14\ Id. at 46.
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The Court also directed Commerce to reconsider its denial of a CEP
offset concerning Hyundai Steel's constructed export price (CEP)
sales.\15\ The Court noted that Commerce determined that one level of
trade (LOT) existed in the home market.\16\ The Court also noted that
Commerce found Hyundai Steel to have three channels of distribution in
the U.S. market: Channel 1 sales (export price (EP) sales through
unaffiliated Korean distributors); Channel 2 sales (CEP sales through
Hyundai Steel's U.S. affiliates to unaffiliated processors); and
Channel 3 sales (CEP sales through Hyundai Steel's U.S. affiliate to
unaffiliated and affiliated U.S. processors). Finally, the Court noted
that, regarding the LOT in the U.S. market, Commerce found: (1) That
Hyundai Steel's Channel 1 and Channel 3 sales were at a more advanced
LOT than Channel 2 sales; and (2) that Hyundai Steel's Channel 1 and
Channel 3 sales were at the same LOT as its home market sales.\17\ The
Court determined that Commerce's decision that Hyundai Steel's U.S. CEP
sales were at the same LOT as Hyundai's home market sales ``cannot be
reconciled'' with Commerce's determination that Hyundai Steel's Channel
2 U.S. sales are at a less advanced LOT than Hyundai Steel's Channel 1
and Channel 3 U.S. sales. Thus, the Court directed Commerce to
reconsider this analysis and determination.\18\
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\15\ Id. at 47-49.
\16\ Id. at 47-48 (citing Final Determination and accompanying
IDM at Comment 18).
\17\ Id. at 48 (citing Final Determination and accompanying IDM
at Comment 18).
\18\ Id. at 49 (citing Final Determination and accompanying IDM
at Comment 18).
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Finally, the Court directed Commerce to reconsider whether to
correct ministerial errors which Commerce had previously found to have
no effect on the margin calculation and, thus, declined to correct in
the LTFV investigation.\19\ The errors involved: (1) The magnitude by
which the AFA rate selected on Hyundai Steel's Spec C sales exceeded
the calculated rate set forth in Hyundai Steel's margin calculation;
\20\ and (2) the application of AFA for certain Hyundai Steel product
matching control numbers (CONNUMs).\21\
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\19\ Id. at 50.
\20\ See Memorandum, ``Re: Antidumping Duty Investigation of
Certain Cold-Rolled Steel Flat Products from the Republic of Korea:
Allegation of Ministerial Errors in the Final Determination,'' dated
August 31, 2016 (Ministerial Error Memorandum) at 2-3.
\21\ Id. at 6-8.
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On October 16, 2018, we filed our Redetermination.\22\ In our
Redetermination, we removed our application of AFA for domestic
movement expenses for transactions for which either Hyundai Steel did
not incur domestic movement expenses or the movement expenses were
provided by unrelated parties.\23\ We also reanalyzed our application
of AFA to Hyundai Steel's ``Spec C'' sales, and assigned a revised FA
rate to Hyundai Steel's ``Spec C'' sales based on the instructions of
the Court.\24\ Additionally we reconsidered Hyundai Steel's claim for a
CEP offset based on the instructions of the Court, and continued to
determine that no constructed export price (CEP) offset is warranted on
Hyundai Steel's U.S. sales.\25\ Finally, we have determined that
correction of the ministerial errors identified by the Court have no
effect on Hyundai Steel's margin calculation.\26\
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\22\ See Final Results of Redetermination Pursuant to Court
Remand, Certain Cold-Rolled Steel Flat Products from the Republic of
Korea, Hyundai Steel Company. v. United States, Court No. 16-00228,
Slip Op. 18-80 (CIT June 28, 2018), dated October 16, 2018
(Redetermination), available at http://enforcement.trade.gov/remands/index.htm.
\23\ Id. at 6-8.
\24\ Id. at 8-9.
\25\ Id. at 9-11.
\26\ Id. at 12.
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On February 26, 2019, the Court sustained Commerce's
Redetermination, and entered final judgment.\27\
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\27\ See Hyundai Steel Company v. United States, Slip Op. 19-24
Court No., 16-00228 dated February 26, 2019 (Final Judgement).
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Timken Notice
In its decision in Timken, 893 F.2d at 341, as clarified by Diamond
Sawblades, the Federal Circuit has held that, pursuant to section
516A(e) of the Act, Commerce must publish a notice of a court decision
not ``in harmony'' with a Commerce determination and must suspend
liquidation of entries pending a ``conclusive'' court decision. The
Court's February 26, 2019, judgment sustaining the Redetermination
constitutes a final decision of the Court that is not in harmony with
the Department's Amended Final Results and Order. This notice is
published in fulfillment of the publication requirement of Timken.
Accordingly, Commerce will continue the suspension of liquidation of
the subject merchandise pending the expiration of the period of appeal
or, if appealed, pending a final and conclusive court decision.
Amended Final Results
Because there is now a final court decision, Commerce amends the
Amended Final Results of the Order with respect to the dumping margin
of Hyundai Steel. The revised cash deposit rates for the LTFV
investigation, is as follows:
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Weighted
average
Exporter dumping
margin
(percent)
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Hyundai Steel Company...................................... 28.42
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Cash Deposit Requirements
In accordance with section 735(c)(1)(B) of the Act, Commerce will
instruct CBP to collect a cash deposit of 28.42 percent for entries of
subject merchandise exported by Hyundai Steel, effective March 8, 2019,
in accordance with the Timken Notice.
This notice is issued and published in accordance with sections
516(A)(e), 751(a)(1), and 777(i)(1) of the Act.
Dated: May 29, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-11578 Filed 6-3-19; 8:45 am]
BILLING CODE 3510-DS-P