[Federal Register Volume 84, Number 181 (Wednesday, September 18, 2019)]
[Notices]
[Pages 49094-49095]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-20174]
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DEPARTMENT OF COMMERCE
International Trade Administration
[A-570-909]
Certain Steel Nails From the People's Republic of China: 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 and is,
therefore, finding that zinc and nylon anchors imported by Simpson
Strong-Tie Company (Simpson), are not within the scope of the
antidumping duty order on certain steel nails (nails) from the People's
Republic of China (China).
DATES: Applicable August 4, 2019.
FOR FURTHER INFORMATION CONTACT: Annathea Cook, Office V, AD/CVD
Operations, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-0250.
SUPPLEMENTARY INFORMATION:
Background
On March 10, 2016, Simpson submitted a scope request asking
Commerce to confirm its claim that ``Zinc Nailon\TM\'' anchors and
``Nylon Nailon\TM\'' anchors \1\ are outside the scope of the
antidumping duty order on nails from China.\2\ Simpson described the
zinc and nylon anchors as consisting of two parts: (1) A zinc alloy or
nylon body; and (2) a carbon and stainless steel pin.\3\
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\1\ See Simpson's Letter, ``Certain Steel Nails from the
People's Republic of China (A-570-909) for Simpson Strong-Tie and
Certain ``Zinc and ``Nylon Nailon\TM\'' Pin Drive Anchors,'' dated
July 21, 2016 (Scope Request).
\2\ See Antidumping Duty Order: Certain Steel Nails from the
People's Republic of China, 73 FR 44961 (August 1, 2008) (Order).
\3\ See Scope Request at 3-4, and 18.
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Commerce issued its Final Scope Ruling on March 20, 2017, finding
that Simpson's zinc and nylon anchors were subject to the scope of the
Order based upon the plain meaning of the Order and the description of
the zinc and nylon anchors contained in Simpson's scope ruling
request.\4\ Commerce also found that several sources 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 Simpson's zinc and nylon anchors fall
within the scope of the Order.\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 Simpson's zinc and
nylon anchors.\6\
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\4\ See Memorandum, ``Antidumping and Countervailing Duty Orders
on Certain Steel Nails from the People's Republic of China: Final
Scope Ruling on Simpson Strong-Tie Company's Anchors,'' dated March
20, 2017 (Final Scope Ruling).
\5\ Id. at 12-13.
\6\ See Message Number 7125304, dated May 5, 2017.
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Simpson challenged Commerce's Final Scope Ruling before the CIT. On
September 21, 2018, the CIT remanded the Final Scope Ruling, holding
that Simpson's zinc and nylon anchors are not a ``nail'' within the
plain meaning of the word and are, therefore, outside the scope of the
Order.\7\ The CIT relied on dictionary definitions to determine the
definition of ``nail'' and concluded that, because Simpson'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 Order.\8\ Therefore, the CIT held that the
entire zinc or nylon anchor is not a nail ``constructed of two or more
pieces'' pursuant to the Order.\9\ 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
Simpson's zinc and nylon anchors are not nails.\10\ 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
[[Page 49095]]
steel pin outside the scope of the antidumping duty order on certain
steel nails from the Socialist Republic of Vietnam.\11\
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\7\ See Simpson Strong-Tie Company, v. United States, Court No.
17-00057, Slip Op. 18-123 (CIT 2018) (Remand Order).
\8\ See Remand Order, Slip Op. 18-123 at 10-11.
\9\ Id. at 11.
\10\ Id. at 11-12.
\11\ Id. at 12-13 (citing OMG, Inc. v. United States, Court No.
17-00036, Slip. Op. 18-63 (CIT 2018)).
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The CIT remanded the Final Scope Ruling to Commerce for further
consideration consistent with the CIT's opinion.\12\ The CIT also
directed Commerce to issue appropriate instructions to CBP regarding
the suspension of liquidation of Simpson's zinc and nylon anchors.\13\
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\12\ Id. at 15.
\13\ Id.
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Pursuant to the CIT's instructions, on remand, under respectful
protest, Commerce found that Simpson's zinc and nylon anchors do not
fall within the scope of the Order.\14\ On July 25, 2019, the CIT
sustained Commerce's Final Remand Results.\15\
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\14\ See Final Results of Redetermination Pursuant to Court
Remand, Simpson Strong-Tie Company, v. United States, Court No. 17-
00057, Slip Op. 18-123 (CIT September 21, 2018), dated December 20,
2018 (Final Remand Results).
\15\ See Simpson Strong-Tie Company, v. United States, Court No.
17-00057, Slip Op. 19-93 (CIT 2019).
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Timken Notice
In its decision in Timken,\16\ as clarified by Diamond
Sawblades,\17\ 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 a court
decision that is not ``in harmony'' with a Commerce determination and
must suspend liquidation of entries pending a ``conclusive'' court
decision. The CIT's July 25, 2019 judgment in this case constitutes a
final decision of the court that is not in harmony with Commerce's
Final Scope Ruling. This notice is published in fulfillment of the
publication requirements of Timken. Accordingly, Commerce will continue
the suspension of liquidation of components for nails pending
expiration of the period of appeal or, if appealed, pending a final and
conclusive court decision.
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\16\ See Timken Co. v. United States, 893 F. 2d 337, 341 (Fed.
Cir. 1990) (Timken).
\17\ 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 Order does not cover the zinc and nylon anchors specified
in Simpson's Scope Request. Commerce will instruct CBP that the cash
deposit rate will be zero percent for zinc and nylon articles subject
to Simpson's Scope 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 Simpson's zinc and nylon anchors without
regard to antidumping 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: September 12, 2019.
James Maeder,
Deputy Assistant Secretary, for Antidumping and Countervailing Duty
Operations.
[FR Doc. 2019-20174 Filed 9-17-19; 8:45 am]
BILLING CODE 3510-DS-P