[Federal Register Volume 84, Number 118 (Wednesday, June 19, 2019)]
[Notices]
[Pages 28460-28461]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-12992]
[[Page 28460]]
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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, is amending its final scope ruling and now finds that
certain zinc and nylon anchors imported by Midwest Fastener Corp.
(Midwest Fastener) 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 June 13, 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 November 9, 2016, Midwest Fastener, an importer of zinc and
nylon anchors, filed a request with Commerce for a scope ruling that
its zinc and nylon anchors should be excluded from the scope of the
antidumping and countervailing duty Orders \1\ on certain steel nails
from Vietnam.\2\ Midwest Fastener described the zinc and nylon anchors
as a unitary article of commerce consisting of two parts: (1) A zinc
alloy or nylon body; and (2) a zinc plated steel pin.\3\
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\1\ See 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);
Certain Steel Nails from the Socialist Republic of Vietnam:
Countervailing Duty Order, 80 FR 41006 (July 14, 2015)
(collectively, the Orders).
\2\ See Midwest Fastener's Letter, ``Certain Steel Nails from
the Socialist Republic of Vietnam: Midwest Fastener Scope Request,''
dated November 9, 2016.
\3\ Id. at 2, 3.
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On May 17, 2017, Commerce issued its Final Scope Ruling, in which
it determined that Midwest Fastener's zinc and nylon anchors are
unambiguously within the scope of the Orders based upon the plain
meaning of the Orders and the description of the zinc and nylon anchors
contained in Midwest Fastener's scope ruling request and supplemental
questionnaire responses.\4\ Commerce also found that several factors
under 19 CFR 351.225(k)(1)--particularly the petition, the final
determination of the International Trade Commission (ITC) issued in
connection with the underlying investigation, and prior scope rulings--
further supported Commerce's determination that Midwest Fastener's zinc
and nylon 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
Midwest Fastener's zinc and nylon 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 Midwest Fastener Corp.'s Zinc and Nylon Anchors (Final
Scope Ruling), dated May 17, 2017 at 11-13.
\5\ Id. at 13.
\6\ See Message Number 7153303, dated June 2, 2017; Message
Number 7153302, dated June 2, 2017.
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Midwest Fastener challenged the Final Scope Ruling before the CIT,
and on October 1, 2018, the CIT remanded Commerce's scope ruling.\7\ In
its Remand Order, the CIT held that Midwest Fastener's zinc and nylon
anchors, as unitary articles of commerce, are not a ``nail'' within the
plain meaning of the word and are, therefore, outside the scope of the
Orders.\8\ The CIT relied on dictionary definitions to determine the
definition of ``nail'' and concluded that, because Midwest Fastener's
zinc and nylon anchors are 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.\9\ The CIT held that the entire
zinc or nylon anchor is not a nail ``constructed of two or more
pieces'' pursuant to the Orders.\10\ 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
Midwest Fastener's zinc and nylon anchors are not nails.\11\ In support
of its conclusion, the CIT cited its decision in OMG, Inc. v. United
States, in which it found a product with a zinc anchor body and a steel
pin outside the scope of the Orders.\12\
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\7\ See Midwest Fastener Corp. v. United States, Court No. 17-
00131, Slip Op. 18-132 (CIT 2018) (Remand Order).
\8\ See Remand Order, Slip Op. 18-132 at 14.
\9\ Id. at 11.
\10\ Id.
\11\ Id. at 12-13.
\12\ Id. at 13, citing OMG, Inc. v. United States, Court No. 17-
00036, Slip Op. 18-63 (CIT 2018) at 10-11.
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The CIT remanded the Final Scope Ruling to Commerce for further
consideration consistent with the CIT's opinion.\13\ The CIT also
directed Commerce to issue appropriate instructions to CBP regarding
the suspension of liquidation of Midwest Fastener's zinc and nylon
anchors.\14\
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\13\ See Remand Order, Slip Op. 18-132 at 14.
\14\ Id.
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Pursuant to the CIT's instructions, on remand, under protest,
Commerce found that Midwest Fastener's zinc and nylon anchors do not
fall within the scope of the Orders.\15\ On June 3, 2019, the CIT
sustained Commerce's Final Remand Results.\16\
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\15\ See Final Results of Redetermination Pursuant to Court
Remand, Midwest Fastener Corp. v. United States, Court No. 17-00131,
Slip Op. 18-132 (CIT October 1, 2018), dated December 21, 2018
(Final Remand Results).
\16\ See Midwest Fastener Corp. v. United States, Court No. 17-
00131, Slip Op. 19-66 (CIT 2019).
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Timken Notice
In its decision in Timken,\17\ as clarified by Diamond
Sawblades,\18\ 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 June 3, 2019 judgment in this case, sustaining Commerce's
decision in the Final Remand Results that Midwest Fastener's zinc and
nylon 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 Midwest Fastener's zinc and nylon anchors
pending expiration of the period of appeal or, if appealed, pending a
final and conclusive court decision.
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\17\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed.
Cir. 1990) (Timken).
\18\ 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 and nylon anchors specified
in Midwest
[[Page 28461]]
Fastener's Scope Ruling Request. Commerce will instruct CBP that the
cash deposit rate will be zero percent for the zinc and nylon anchors
subject to Midwest Fastener's scope ruling request. In the event that
the CIT's ruling is not appealed, or if appealed, upheld by the CAFC,
Commerce will instruct CBP to liquidate entries of Midwest Fastener's
zinc and nylon 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: June 10, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-12992 Filed 6-18-19; 8:45 am]
BILLING CODE 3510-DS-P