[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