[Federal Register Volume 84, Number 226 (Friday, November 22, 2019)]
[Notices]
[Pages 64459-64460]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-25392]


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DEPARTMENT OF COMMERCE

International Trade Administration

[C-580-888]


Certain Carbon and Alloy Steel Cut-To-Length Plate From the 
Republic of Korea: Notice of Court Decision Not in Harmony With Final 
Countervailing Duty Determination, and Notice of Amended Final 
Countervailing Duty Determination

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: On November 8, 2019, the United States Court of International 
Trade (Court) sustained the final remand results pertaining to the 
countervailing duty (CVD) investigation on certain carbon and alloy 
steel cut-to-length (CTL) plate from the Republic of Korea (Korea) 
covering the period January 1, 2015 through December 31, 2015. The 
Department of Commerce (Commerce) is notifying the public that the 
final judgment in this case is not in harmony with the final 
determination of the CVD investigation and that Commerce is amending 
the final determination with respect to the net countervailable subsidy 
rates assigned to POSCO and all other producers/exporters not 
individually investigated.

DATES: Applicable November 18, 2019.

FOR FURTHER INFORMATION CONTACT: Yasmin Bordas, 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) 482-3813.

SUPPLEMENTARY INFORMATION:

Background

    On April 4, 2017, Commerce published its Final Determination.\1\ In 
the Final Determination, Commerce calculated a net countervailable 
subsidy rate of 4.31 percent for POSCO.\2\
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    \1\ See Certain Carbon and Alloy Steel Cut-To-Length Plate from 
the Republic of Korea: Final Affirmative Countervailing Duty 
Determination and Final Negative Critical Circumstances 
Determination, 82 FR 16341 (April 4, 2017) (Final Determination), 
and accompanying Issues and Decision Memorandum.
    \2\ See Final Determination, 82 FR at 16342; see also 
Memorandum, ``Countervailing Duty Investigation: Certain Carbon and 
Alloy Steel Cut-To-Length Plate from the Republic of Korea: Final 
Determination Calculation Memorandum for POSCO,'' dated March 29, 
2017.
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    On December 6, 2018, the Court remanded various aspects of the 
Final Determination to Commerce.\3\ In its Remand Order, the Court 
upheld Commerce's application of adverse facts available (AFA) to 
POSCO's cross-owned company POSCO M-Tech's unreported additional 
government subsidies, but remanded to the agency for reconsideration 
its determination that the assistance received by POSCO M-Tech was 
countervailable.\4\ Specifically, the Court held that Commerce did not 
sufficiently justify its application of AFA in making its benefit and 
specificity findings regarding this program.\5\
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    \3\ See POSCO v. United States, 353 F. Supp. 3d 1357 (CIT 2018) 
(Remand Order).
    \4\ Id. at 1374, 1376.
    \5\ Id. at 1374.
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    Separately, the Court held that Commerce did not ``evaluate the 
application of the highest available AFA rates'' as required by section 
776(d)(2) of the Tariff Act of 1930, as amended (the Act).\6\ 
Accordingly, it remanded the Final Determination to Commerce for 
reconsideration of ``why the highest available rate should apply to

[[Page 64460]]

POSCO.'' \7\ Because the Court remanded Commerce's Final Determination 
on these bases, it did not address whether the agency corroborated the 
AFA rates at issue.\8\
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    \6\ Id. at 1374 and 1382-83.
    \7\ Id. at 1374 and 1383.
    \8\ Id. at 1383 n.15.
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    Shortly thereafter, POSCO filed a motion for reconsideration of the 
Court's opinion. In its Reconsideration Order,\9\ the Court concluded 
that ``Commerce did not provide any additional explanation of how it 
determined that there was no identical program before moving to the 
second step of its AFA methodology--using the rate in another 
investigation--and, thus, did not make the requisite factual findings 
to address POSCO's contention that the {Industrial Technology 
Innovation Promotion Act{time}  grant was an identical program in the 
proceeding.'' \10\ Accordingly, it further remanded the Final 
Determination to Commerce for consideration of this issue.
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    \9\ See POSCO v. United States, 382 F. Supp. 3d 1346 (CIT 2019) 
(Reconsideration Order).
    \10\ Id. at 1349.
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    Pursuant to the Remand Order and Reconsideration Order, Commerce 
issued its Final Redetermination, which addressed the Court's holdings 
and revised the net countervailable subsidy rate assigned to POSCO to 
3.72 percent.\11\ On November 8, 2019, the Court sustained Commerce's 
Final Redetermination and entered final judgment.\12\
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    \11\ See Final Results of Redetermination Pursuant to Court 
Order, Consol. Court No. 17-00137, dated July 1, 2019 (Final 
Redetermination).
    \12\ See POSCO v. United States, Slip Op. 18-169, Consol. Ct. 
No. 17-00137 (CIT 2018).
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Timken Notice

    In its decision in Timken,\13\ as clarified by Diamond 
Sawblades,\14\ the United States Court of Appeals for the Federal 
Circuit held that, pursuant to sections 516A(e) of 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 Court's November 8, 2019, 
judgment sustaining Commerce's Final Redetermination constitutes a 
final decision of that court, which is not in harmony with Commerce's 
Final Determination. This notice is published in fulfillment of the 
publication requirements of Timken. Commerce will continue the 
suspension of liquidation of the subject merchandise at issue pending a 
final and conclusive court decision.
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    \13\ See Timken Co. v. United States, 893 F. 2d 337 (Fed. Cir. 
1990) (Timken).
    \14\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F. 3d 1374 (Fed. Cir. 20 10) (Diamond Sawblades).
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Amended Final Determination

    Because there is now a final court decision, Commerce is amending 
its Final Determination with respect to the net countervailable subsidy 
rate assigned to POSCO. Additionally, because the rate for all other 
producers/exporters not individually investigated was based on the net 
countervailable subsidy rate calculated for POSCO, Commerce is amending 
the all-others rate.\15\ As previously indicated, in accordance with 
the scope of the underlying investigation, this application of POSCO's 
subsidy rate to all other producers/exporters applies only to subject 
CTL plate not within the physical description of cut-to-length carbon 
quality steel plate in the 1999 Korea CVD Order.\16\ The revised net 
countervailable subsidy rates for POSCO, and all other producers/
exporters not individually investigated for the period January 1, 2015, 
through December 31, 2015, are as follows:
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    \15\ See Final Determination, 82 FR at 16342.
    \16\ See id. n.10 (citing Final Affirmative Countervailing Duty 
Determination: Certain Cut-to-Length Carbon-Quality Steel Plate from 
the Republic of Korea, 64 FR 6587 (December 29, 1999), as amended, 
65 FR 6587 (February 10, 2000) (1999 Korea CVD Order)).

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                                                                Subsidy
                      Producer/exporter                          rate
                                                               (percent)
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POSCO.......................................................        3.72
All Others..................................................        3.72
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Cash Deposit Requirements

    Because POSCO does not have a superseding cash deposit rate, i.e., 
there have been no final results published in a subsequent 
administrative review for POSCO, Commerce will issue revised cash 
deposit instructions to U.S. Customs and Border Protection (CBP). 
Effective November 18, 2019, the cash deposit rate applicable to 
entries of subject merchandise exported by POSCO is 3.72 percent. 
Similarly, Commerce will also instruct CBP to collect cash deposits for 
companies covered by the all-others cash deposit rate according to the 
table above, effective November 18, 2019.
    This notice is issued and published in accordance with sections 
516A(c)(1) and (e)(1), 705(c)(1)(B), and 777(i)(1) of the Act.

    Dated: November 18, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-25392 Filed 11-21-19; 8:45 am]
BILLING CODE 3510-DS-P