[Federal Register Volume 87, Number 145 (Friday, July 29, 2022)]
[Notices]
[Pages 45758-45760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2022-16309]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-583-854]


Certain Steel Nails From Taiwan: Notice of Court Decision Not in 
Harmony With the Results of Antidumping Duty Administrative Review; 
Notice of Amended Final Results

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

SUMMARY: On July 15, 2022, the U.S. Court of International Trade (the 
Court or CIT) issued its final judgment in Pro-Team Coil Nail Enter. v. 
United States, Consol. Court No. 18-00027, Slip Op. 22-84 (Pro-Team 
IV), sustaining the U.S. Department of Commerce's (Commerce) remand 
results pertaining to the administrative review of the antidumping duty 
(AD) order on certain steel nails from Taiwan covering the period May 
20, 2015, to June 30, 2016. Commerce is notifying the public that the 
CIT's final judgment is not in harmony with Commerce's Final Results of 
the administrative review, and that Commerce is amending the Final 
Results with respect to the dumping margin assigned to the mandatory 
respondent, PT Enterprise, Inc./Pro-Team Coil Nail Enterprise, Inc. and 
to the respondents that were not selected for individual examination 
(i.e., the non-examined companies), Hor Liang Industrial Corp. and Romp 
Coil Nails Industries Inc.

DATES: Applicable July 25, 2022.

FOR FURTHER INFORMATION CONTACT: Erin Kearney or George McMahon, 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) 482-0167 or (202) 482-1167, 
respectively.

SUPPLEMENTARY INFORMATION:

Background

    On February 13, 2018, Commerce published its Final Results in the 
2015-2016 AD administrative review of certain steel nails from 
Taiwan.\1\ In this administrative review, Commerce selected three 
mandatory respondents for individual examination: PT Enterprise, Inc./
Pro-Team Coil Nail Enterprise, Inc. (PT/Pro-Team); Unicatch Industrial 
Co., Ltd. (Unicatch); and Bonuts Hardware Logistics Co., LLC (Bonuts). 
Based on the mandatory respondents' failure to cooperate to the best of 
their abilities in responding to Commerce's requests for information, 
Commerce initially relied on the petition rate as adverse facts 
available (AFA) to determine the dumping rates for each of the 
mandatory respondents. Commerce assigned to the non-examined companies 
the dumping margin assigned to the mandatory respondents, 78.17 
percent, in the Final Results.\2\
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    \1\ See Certain Steel Nails from Taiwan: Final Results of 
Antidumping Duty Administrative Review and Partial Rescission of 
Administrative Review; 2015-2016, 83 FR 6163 (February 13, 2018) 
(Final Results), and accompanying Issues and Decision Memorandum 
(IDM).
    \2\ Id.
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    PT/Pro-Team and Unicatch challenged the application of AFA. Bonuts 
did not challenge the AFA rate it was assigned.\3\
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    \3\ See Pro-Team Coil Nail Enter. v. United States (Pro-Team I), 
419 F. Supp. 3d 1319, 1323-25 (CIT 2019) (First Remand Order).
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    In its First Remand Order, the Court sustained Commerce's use of 
facts available to determine the margin for Unicatch, but remanded two 
issues to Commerce: (1) the application of AFA to determine the AD 
margin of PT/Pro-Team; and (2) to explain the use of an adverse 
inference when using facts available to determine the AD margin of 
Unicatch.\4\
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    \4\ Id.
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    In its first remand redetermination issued on March 25, 2020, 
Commerce reconsidered its AFA determinations.\5\ Commerce calculated a 
dumping margin for PT/Pro-Team that was de minimis, but continued to 
apply AFA to Unicatch.\6\ Commerce used the AFA rate that it 
corroborated in the Final Results and recalculated the non-examined 
companies' rate using the ``expected method'' of averaging PT's and 
Unicatch's rates. Commerce calculated the non-examined companies' rate 
using a simple average of PT/Pro-Team's calculated zero percent margin 
and the 78.17 percent AFA rate applied to Unicatch.\7\
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    \5\ See Final Results of Redetermination Pursuant to Court 
Remand, Pro-Team Coil Nail Enter. v. United States, Consol. Court 
No. 18-00027, Slip Op. 19-169 (CIT December 19, 2019), dated March 
25, 2020 (First Redetermination).
    \6\ Bonuts did not challenge the application of AFA to its 
company, and the AFA rate assigned to Bonuts has remained unchanged 
in this segment of the proceeding.
    \7\ See First Redetermination at 32.
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    In the Second Remand Order, the Court sustained Commerce's 
calculation of a weighted-average dumping margin of zero percent for 
PT/Pro-Team and Commerce's application of a rate based on AFA for 
Unicatch.\8\ The Court

[[Page 45759]]

remanded Commerce's selection of the 78.17 percent rate applied as AFA, 
which the Court found Commerce did not adequately corroborate.\9\ The 
Court also stated that ``Commerce largely ignored Unicatch's arguments 
that the 78.17 percent rate was punitive, aberrational, and lacking 
consideration of the totality of the circumstances or the seriousness 
of Unicatch's conduct,'' but deferred further consideration of 
Unicatch's arguments that the petition rate was unduly punitive.\10\
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    \8\ See Pro-Team Coil Nail Enterprise, Inc. v. United States, 
483 F. Supp. 3d 1242 (CIT 2020) (Second Remand Order).
    \9\ Id., 483 F. Supp. 3d at 1245, 1251
    \10\ Id., 483 F. Supp. 3d at 1251.
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    In its second remand redetermination issued on February 23, 2021, 
Commerce provided additional analysis concerning the corroboration of 
the margin assigned to Unicatch as AFA. Commerce also recalculated the 
rate assigned to the non-examined companies using a simple average of 
the mandatory respondents' rates.\11\
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    \11\ See Final Results of Redetermination Pursuant to Court 
Remand, Pro-Team Coil Nail Enter. v. United States, Consol. Court 
No. 18-00027, Slip Op. 20-163 (CIT November 16, 2020), dated 
February 23, 2021 (Second Redetermination), at 12. Upon review of 
the calculation of the non-examined companies' rate, we found that 
Commerce erred in the First Redetermination by inadvertently 
omitting Bonuts' rate from the calculation.
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    In Pro-Team III, the non-examined companies challenged Commerce's 
decision to use a simple average of the mandatory respondents' AFA and 
de minimis rates to calculate the rate for non-examined companies. The 
CIT remanded Commerce's use of a simple average to calculate the rate 
for non-examined companies.\12\ The CIT found that substantial evidence 
did not support Commerce's departure from the expected method \13\ 
(i.e., using a weighted average to calculate the non-examined 
companies' rate) because Commerce had not explained why the U.S. 
Customs and Border Protection (CBP) import volume data it had relied on 
for selecting mandatory respondents was not reliable for the purpose of 
calculating a dumping rate using the expected method.\14\
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    \12\ See Pro-Team Coil Nail Enter. v. United States, 532 F. 
Supp. 3d 1281, 1294 (CIT 2021) (Pro-Team III).
    \13\ The Statement of Administrative Action accompanying the 
Uruguay Round Agreements Act (URAA), which Congress has approved as 
an authoritative interpretation of the statute, Id. Sec.  3512(d), 
provides an ``expected method'' to determine the all-others rate in 
these situations. See Statement of Administrative Action 
Accompanying the Uruguay Round Agreements Act, H.R. Doc. No. 103-
316, Vol. 1 (1994) (SAA), at 873. When the dumping margins for all 
individually investigated exporters and producers are determined 
entirely on the basis of facts available or are zero or de minimis, 
``{t{time} he expected method in such cases will be to weight-
average the zero and de minimis margins and margins determined 
pursuant to the facts available, provided that volume data is 
available.'' Id. The SAA further provides that ``if this method is 
not feasible, or if it results in an average that would not be 
reasonably reflective of potential dumping margins for non-
investigated exporters or producers, Commerce may use other 
reasonable methods.'' Id.
    \14\ See Pro-Team III, 532 F. Supp. 3d at 1293-94.
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    In its third remand redetermination issued on October 13, 2021, 
Commerce continued to assign rates based on total AFA to two selected 
respondents (Bonuts and Unicatch), calculated a zero percent margin for 
a third selected respondent (PT/Pro-Team), and calculated the weighted-
average of the rates of these three mandatory respondents to apply to 
the non-examined companies.\15\ This use of the expected method 
resulted in an AD rate of 35.30 percent for the non-examined 
companies.\16\
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    \15\ See Final Results of Redetermination Pursuant to Court 
Remand, Pro-Team Coil Nail Enter. v. United States, Consol. Court 
No. 18-00027, Slip Op. 21-93 (CIT July 20, 2021), dated October 13, 
2021 (Third Redetermination).
    \16\ Id. at 17.
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    In Pro-Team IV, the Court explained that the statute, SAA, and case 
law supported the legal framework in which the mandatory respondents 
are assumed representative of the non- examined companies and also 
explained that Commerce does not bear a burden of data collection to 
determine non-examined companies' potential dumping margins.\17\ The 
CIT agreed with Commerce's finding that substantial evidence did not 
support a finding that the mandatory respondents' rates were not 
representative because the history of the rates showed fluctuations 
from administrative review to administrative review. Moreover, the CIT 
held that Commerce's determination to include in the calculation of the 
rate applicable to non-selected respondents Bonuts' AFA rate was lawful 
because absent Bonuts' cooperation, Commerce could not verify Bonuts' 
claim that it was not representative.\18\
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    \17\ See Pro-Team Coil Nail Enter. v. United States, Consol. 
Court No. 18-00027, Slip Op. 22-84 (CIT July 15, 2022) (Pro-Team 
IV).
    \18\ Id. at 18.
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    On July 15, 2022, the Court sustained Commerce's Third 
Redetermination, and entered a final judgment.\19\
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    \19\ Id.
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Timken Notice

    In its decision in Timken,\20\ as clarified by Diamond 
Sawblades,\21\ the U.S. Court of Appeals for the Federal Circuit held 
that, pursuant to section 516A(e) of the Tariff Act of 1930, as amended 
(the Act), Commerce must publish a notice of a court decision not ``in 
harmony'' with a Commerce determination and must suspend liquidation of 
entries pending a ``conclusive'' court decision. The Court's July 15, 
2022, judgment sustaining the Third Redetermination 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 
requirement of Timken.
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    \20\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. 
Cir. 1990) (Timken).
    \21\ 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 PT/Pro-Team and the non-examined 
companies for the period May 20, 2015, through June 30, 2016. The 
revised rates for PT/Pro-Team and the non-examined companies are as 
follows:

------------------------------------------------------------------------
                                                               Weighted
                                                                average
                      Producer/exporter                         dumping
                                                                margin
                                                               (percent)
------------------------------------------------------------------------
PT Enterprise, Inc./Pro-Team................................        0.00
Coil Nail Enterprise, Inc...................................
Non-examined companies \22\.................................       35.30
------------------------------------------------------------------------

Cash Deposit Requirements

    Because PT/Pro-Team and the non-examined companies have superseding 
cash deposit rates, i.e., there have been final results published in a 
subsequent administrative review, we will not issue revised cash 
deposit instructions to CBP. This notice will not affect the current 
cash deposit rates.
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    \22\ The non-examined companies are Hor Liang Industrial Corp. 
and Romp Coil Nails Industries Inc.
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Liquidation of Suspended Entries

    At this time, Commerce remains enjoined by CIT order from 
liquidating entries that: were imported by PrimeSource Building 
Products, Inc.; produced and exported by Pro-Team Coil Nail Enterprise, 
Inc. and/or PT Enterprise Inc.; produced and exported by Hor Liang 
Industrial Corp. or Romp Coil Nails Industries Inc.; or produced and 
exported by Unicatch Industrial Co., Ltd., and were entered, or 
withdrawn from warehouse, for consumption during the period May 20, 
2015 through June 30, 2016. Liquidation of these entries will remain 
enjoined pursuant to the terms of the injunction during the pendency of 
any appeals process.
    In the event the CIT's ruling is not appealed, or, if appealed, 
upheld by a final and conclusive court decision,

[[Page 45760]]

Commerce intends to instruct CBP to assess ADs on unliquidated entries 
of subject merchandise imported by PrimeSource Building Products, Inc.; 
produced and exported by Pro-Team Coil Nail Enterprise, Inc. and/or PT 
Enterprise Inc.; produced and exported by Hor Liang Industrial Corp. or 
Romp Coil Nails Industries Inc.; or produced and exported by Unicatch 
Industrial Co., Ltd., in accordance with 19 CFR 351.212(b). We will 
instruct CBP to assess ADs on all appropriate entries covered by this 
review when the importer-specific ad valorem assessment rate is not 
zero or de minimis. Where an importer-specific ad valorem assessment 
rate is zero or de minimis,\23\ we will instruct CBP to liquidate the 
appropriate entries without regard to ADs.
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    \23\ See 19 CFR 351.106(c)(2).
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Notification to Interested Parties

    This notice is issued and published in accordance with sections 
516(A)(c) and (e) and 777(i)(1) of the Act.

    Dated: July 25, 2022.
Lisa W. Wang,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2022-16309 Filed 7-28-22; 8:45 am]
BILLING CODE 3510-DS-P