[Federal Register Volume 85, Number 33 (Wednesday, February 19, 2020)]
[Notices]
[Pages 9457-9458]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03215]
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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 the Final Results of Antidumping
Duty Administrative Review and Notice of Amended Final Results
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On October 18, 2019, the United States Court of International
Trade (CIT) entered final judgment sustaining the final results of
redetermination pertaining to the sixth administrative review of the
antidumping duty order on certain steel nails (steel nails) from the
People's Republic of China (China). The Department of Commerce
(Commerce) is notifying the public that the final judgment in this case
is not in harmony final results of the administrative review covering
the period of review (POR) August 1, 2013 through July 31, 2014, and
that Commerce is amending the final results with respect to the dumping
margin assigned to Shandong Oriental Cherry Hardware Group Co., Ltd.
(Oriental Cherry).
DATES: Applicable October 28, 2019.
FOR FURTHER INFORMATION CONTACT: Javier Barrientos, AD/CVD Operations,
Office V, Enforcement and Compliance, International Trade
Administration, U.S. Department of Commerce, 1401 Constitution Avenue
NW, Washington, DC 20230; telephone: (202) 482-2243.
SUPPLEMENTARY INFORMATION:
Background
In the Preliminary Results,\1\ which remained unchanged in the
Final Results,\2\ Commerce treated Oriental Cherry and its affiliated
companies as a single entity.\3\ Commerce also determined that Oriental
Cherry's responses were deficient, and that the use of facts otherwise
available, pursuant to section 776(a) of the Tariff Act of 1930, as
amended (the Act), was necessary.\4\ As a result, Commerce determined
that Oriental Cherry was not eligible for separate rate status and
treated it as part of the China-wide entity, subject to a dumping
margin of 118.04 percent.
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\1\ See Certain Steel Nails from the People's Republic of China:
Preliminary Results of the Antidumping Duty Administrative Review
and Preliminary Determination of No Shipments; 2013-2014, 80 FR
53490 (September 4, 2015) (Preliminary Results) and accompanying
Preliminary Decision Memorandum at 11-12.
\2\ See Certain Steel Nails from the People's Republic of China:
Final Results of Antidumping Duty Administrative Review; 2013-2014,
81 FR 14092 (March 16, 2016) (Final Results), and accompanying
Issues and Decision Memorandum (IDM), amended by Certain Steel Nails
from the People's Republic of China: Final Results of Antidumping
Duty Administrative Review; 2013-2014, 81 FR 19136 (April 4, 2016).
\3\ The Shandong Oriental Cherry Entity is comprised of:
Oriental Cherry, Shandong Oriental Cherry Hardware Import & Export
Co., Ltd., Heze Products Co., Ltd., Jining Huarong Hardware Products
Co., Ltd., Jining Dragon Fasteners Co., Ltd., and Jining Yonggu
Metal Products Co., Ltd.
\4\ See Final Results IDM at 60-63.
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On January 2, 2018, the CIT remanded the Final Results with respect
to our decision to deny Oriental Cherry a separate rate.\5\ The CIT
remanded the Final Results to Commerce to reevaluate the evidence on
the record regarding Oriental Cherry's eligibility for a separate rate,
and to assign a separate rate to Oriental Cherry, if appropriate.
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\5\ See National Nail Corp. et al. v. United States, 279 F.
Supp. 3d 1372 (January 2, 2018), Slip Op. 18-1, CIT Court No. 16-
00052.
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On April 20, 2018, Commerce issued the First Remand Results.\6\ On
remand, Commerce determined that Oriental Cherry was eligible for a
separate rate, because the record supported the finding that Oriental
Cherry demonstrated an absence of de jure and de facto government
control.\7\ Commerce did not, however, determine a rate using any of
the production and sales information that Oriental Cherry had placed on
the record in response to its questionnaires. Rather, Commerce further
explained its findings from the Final Results, continuing to find that
such information was missing from the record and that Oriental Cherry
did not cooperate to the best of its ability to provide such
information, and, thus, assigned Oriental Cherry the rate of 118.04
percent as the total adverse facts available (AFA) rate pursuant to
section 776(b) of the Act, i.e., the highest rate on the record of this
proceeding.\8\
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\6\ See Final Results of Redetermination Pursuant to Remand
Order in National Nail Corp. v. United States, Consol. Ct. No. 16-
00052 (April 20, 2018) (First Remand Results).
\7\ Id. at 8-12.
\8\ Id. at 12 and 15-18.
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On June 12, 2019, the CIT remanded the First Remand Results. The
CIT held that Commerce's application of total
[[Page 9458]]
AFA in the First Remand Results was neither supported by substantial
evidence, nor in accordance with law.\9\ Specifically, the CIT held
that ``neither the law nor the facts support the Department's findings
that: (1) None of Oriental Cherry's factors of production or its U.S.
sales information was usable; (2) Oriental Cherry failed to comply with
Commerce's requests for production and sales information to the best of
its ability; and (3) a rate of 118.04 percent was legally and factually
justified.'' \10\ As such, the CIT ordered that: (1) Commerce calculate
a rate for Oriental Cherry using the factors of production and U.S.
sales information submitted by Oriental Cherry in the underlying
review; \11\ and (2) with respect to shooting nails supplied by
Oriental Cherry's affiliate, Jining Dragon, Commerce use facts
available in filling in missing necessary information, and (3) Commerce
may draw an adverse inference with respect to information regarding the
sales of shooting nails during the period of review.\12\ On September
5, 2019, Commerce issued its Second Remand Results.\13\
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\9\ See National Nail Corp. et al. v. United States, Slip Op.
19-71 (June 12, 2019), CIT Court No. 16-00052 (Second Remand Order)
at 32-42 and 47.
\10\ Id. at 6 and 47.
\11\ Id. at 47-48.
\12\ Id. at 48.
\13\ See Final Results of Redetermination Pursuant to Remand
Order in National Nail Corp. v. United States, Consol. Ct. No. 16-
00052 (September 5, 2019) (Second Remand Results).
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Timken Notice
In its decision in Timken,\14\ as clarified by Diamond
Sawblades,\15\ the Court of Appeals for the Federal Circuit (CAFC) held
that, pursuant to section 516A 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 October 18, 2019, judgment sustaining the Second Remand Results
constitutes a final decision of the Court that is not in harmony with
Commerce's Final Results. This notice is published in fulfillment of
the publication requirements of Timken.
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\14\ See Timken Co., v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\15\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Results
Because there is now a final court decision, Commerce is amending
the Final Results with respect to Oriental Cherry. The revised
weighted-average dumping margin for Oriental Cherry for the period
August 1, 2013 through July 31, 2014 is as follows:
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Weighted-
average
Exporter margin
(percent)
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The Shandong Oriental Cherry Entity........................ 61.05
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The CIT's ruling was not appealed and thus represents a final and
conclusive court decision. Commerce will therefore instruct U.S.
Customs and Border Protection to assess antidumping duties on
unliquidated entries of subject merchandise exported by Oriental Cherry
using the appropriate assessment rates.
Cash Deposit Requirements
The cash deposit rate for Oriental Cherry has been superseded by
cash deposit rates calculated in intervening administrative reviews of
the antidumping duty order on certain steel nails from China. Thus, we
will not alter its cash deposit rate.
Notification to Interested Parties
This notice is issued and published in accordance with sections
516A(e), 751(a)(1), and 777(i)(1) of the Act.
Dated: February 11, 2020.
Christian Marsh,
Deputy Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2020-03215 Filed 2-18-20; 8:45 am]
BILLING CODE 3510-DS-P