[Federal Register Volume 88, Number 164 (Friday, August 25, 2023)]
[Notices]
[Pages 58245-58248]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2023-18386]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-583-856]


Corrosion-Resistant Steel Products From Taiwan: Notice of Third 
Amended Final Determination of Sales at Less Than Fair Value Pursuant 
to Court Decision and Partial Exclusion From Antidumping Duty Order

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

SUMMARY: On June 23, 2023, the U.S. Court of International Trade (CIT) 
sustained the U.S. Department of Commerce's (Commerce) second remand 
redetermination concerning the antidumping duty investigation of 
certain corrosion-resistant steel products (CORE) from Taiwan, which: 
(1) reinstated the use of an adverse inference in the calculation of 
respondent Prosperity Tieh Enterprise Co., Ltd.'s (Prosperity) 
reporting of yield strength for CORE production, and (2) reversed 
Commerce's determination from the investigation to collapse mandatory 
respondent Prosperity with the other mandatory respondent, the Yieh 
Phui Enterprise Co., Ltd. (Yieh Phui) and Synn Industrial Co., Ltd. 
(Synn) single entity (collectively, Yieh Phui/Synn). Accordingly, 
Commerce is issuing a third amended final determination for the less-
than-fair-value (LTFV) investigation of CORE

[[Page 58246]]

from Taiwan. The determination to not collapse Prosperity with the Yieh 
Phui/Synn entity results in a negative amended final determination of 
sales at LTFV for Yieh Phui/Synn and, thus, excludes Yieh Phui/Synn 
from the antidumping duty order.

DATES: Applicable July 3, 2023.

FOR FURTHER INFORMATION CONTACT: Brendan Quinn, AD/CVD Operations, 
Office III, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-5848.

SUPPLEMENTARY INFORMATION:

Background

    The litigation in this case relates to Commerce's final 
determination in the LTFV investigation of CORE from Taiwan, which was 
later amended. In the Preliminary Determination, Commerce determined 
that Yieh Phui and Synn comprised a single entity, and no party 
challenged this determination in its case brief. Thus, Commerce 
continued to find Yieh Phui and Synn to be a single entity in the Final 
Determination.\1\ In the Final Determination, Commerce further 
determined that Prosperity was part of the Synn single entity.\2\ With 
regard to Prosperity and Synn, Commerce found that Prosperity was 
affiliated with Synn, and that it should be treated as a part of the 
Synn single entity. As a result, Commerce concluded that 
``{s{time} ince Prosperity Tieh is collapsed with {Synn{time} , and 
Yieh Phui is collapsed with {Synn{time} , {as a result of{time}  the 
potential for manipulation of price and production among the three 
companies comprising the two collapsed entities, we find that 
Prosperity Tieh/{Synn{time}  and Yieh Phui/{Synn{time}  should be 
collapsed as a single entity for purposes of the final determination in 
this investigation.'' \3\
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    \1\ See Certain Corrosion-Resistant Steel Products from Taiwan: 
Negative Preliminary Determination of Sales at Less than Fair Value, 
81 FR 72 (January 4, 2016), and accompanying Preliminary Decision 
Memorandum (PDM) at 4; see also Certain Corrosion-Resistant Steel 
Products from Taiwan: Final Determination of Sales at Less Than Fair 
Value and Final Affirmative Determination of Critical Circumstances, 
in Part, 81 FR 35313, 35314 (June 2, 2016) (Final Determination), 
and accompanying Issues and Decision Memorandum (IDM); and 
Memorandum, ``Less Than Fair Value Investigation of Certain 
Corrosion-Resistant Steel Products from Taiwan: Final Affiliation 
and Collapsing Memorandum,'' dated May 24, 2016 (Final Collapsing 
Memo).
    \2\ See Certain Corrosion Resistant Steel Products (CORE) from 
India, Italy, China, Korea and Taiwan: Amended Final Affirmative 
Antidumping Determination for India and Taiwan, and Antidumping Duty 
Orders, 81 FR 48390 (July 26, 2016) (Amended Final Determination and 
Order). Although the Amended Final Determination changed the 
weighted-average dumping margins, it did not change the analysis 
from the Final Determination.
    \3\ See Final Affiliation and Collapsing Memorandum, at 9.
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    Also, in the Final Determination, Commerce determined that 
Prosperity misreported the yield strength of certain of its sales of 
CORE, which resulted in Commerce's determination that Prosperity failed 
to cooperate to the best of its ability.\4\ To determine the costs of 
the sales found to have been misclassified by Prosperity, Commerce 
resorted to partial adverse facts available pursuant to sections 
776(a)(2)(B) and (D) and 776(b) of the Tariff Act of 1930, as amended 
(the Act).\5\
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    \4\ See Final Determination, 81 FR 35314, and accompanying IDM 
at Comment 1.
    \5\ Id.
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    Mandatory respondents, Prosperity and Yieh Phui, each a Taiwanese 
producer and exporter of CORE, challenged aspects of Commerce's final 
affirmative LTFV determination before the CIT, including Commerce's 
single entity determination with respect to Prosperity and the Yieh 
Phui/Synn entity and Commerce's use of facts otherwise available with 
an adverse inference in response to Prosperity's reporting of yield 
strength. In Prosperity I, the CIT ordered Commerce to: (1) reconsider 
its decision to collapse Prosperity with the Yieh Phui/Synn entity; and 
(2) ``correct the errors resulting from {Commerce's{time}  unlawful 
decision to use the facts otherwise available and an adverse inference 
pertaining to the yield strength classification and coding of 
Prosperity's home market and U.S. market sales.'' \6\ In its First 
Redetermination Results, Commerce: (1) reconsidered the collapsing 
determination in accordance with the CIT's opinion, but continued to 
treat Prosperity, Yieh Phui, and Synn as a single-entity, consistent 
with 19 CFR 351.401(f); and (2) under respectful protest, revised the 
Yieh Phui/Prosperity/Synn entity's weighted-average dumping margin by 
using Prosperity's reported yield strength data rather than facts 
otherwise available with an adverse inference.\7\ In Prosperity II, the 
CIT sustained Commerce's First Redetermination Results.\8\ On February 
26, 2019, Commerce published the second amended final determination and 
notification of final judgment that is not in harmony with Commerce's 
amended final determination of the antidumping investigation.\9\
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    \6\ See Prosperity Tieh Enter. Co. v. United States, 284 F. 
Supp. 3d 1364, 1382 (CIT 2018) (Prosperity I).
    \7\ See Final Results of Redetermination Pursuant to Court 
Remand, Prosperity Tieh Enterprise Co., Ltd. et al. v. United 
States, Consol. Court No. 19-00138, Slip Op 18-5 (CIT 2018), dated 
May 23, 2018 (First Redetermination Results).
    \8\ See Prosperity Tieh Enter. Co. v. United States, 358 F. 
Supp. 3d 1363, 1370 (CIT 2018) (Prosperity II).
    \9\ See Corrosion-Resistant Steel Products from Taiwan: Notice 
of Court Decision Not in Harmony With Final Determination of 
Antidumping Duty Investigation and Notice of Amended Final 
Determination of Investigation, 84 FR 6129 (February 26, 2019) 
(Second Amended Final Determination and Timken Notice).
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    In Prosperity III, the U.S. Court of Appeals for the Federal 
Circuit (Federal Circuit) vacated the CIT's judgment on the collapsing 
issue in Prosperity II by concluding that ``Commerce acted contrary to 
law when it collapsed Prosperity, Yieh {Phui{time} , and Synn without 
considering the {19 CFR{time}  351.401(f) factors as between the 
relationships of Prosperity and Yieh {Phui{time}  or between Prosperity 
and Yieh {Phui{time} /Synn . . . Commerce must consider the `totality 
of circumstances' between all entities when it evaluates whether, for 
purposes of collapsing entities, there is significant potential for 
manipulation of price or production to circumvent antidumping duties.'' 
\10\ Regarding Prosperity's yield strength, the Federal Circuit held 
that the CIT ``erred when it reversed Commerce's finding that 
Prosperity misreported yield strength,'' and that ``{s{time} ubstantial 
evidence also supports Commerce's finding that Prosperity failed to 
provide yield strength information based on the ASTM industry 
standard.'' \11\
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    \10\ See Prosperity Tieh Enter. Co. v. United States, 965 F.3d 
1320, 1326 (Fed. Cir. 2020) (Prosperity III); Federal Circuit 
Mandate in Appeal #19-1400 (September 8, 2020), ECF. No. 132; see 
also Prosperity Tieh Enter. Co. v. United States, 532 F. Supp. 3d 
1401 (CIT 2021) (Prosperity IV).
    \11\ See Prosperity III, 965 F.3d at 1328.
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    The Federal Circuit remanded to the CIT for further proceedings 
consistent with its opinion, and on September 1, 2021, the CIT issued 
its remand order, ordering Commerce to reach a new determination on 
whether collapsing is appropriate, reinstate the use of facts available 
with an adverse inference with respect to Prosperity's reporting of 
yield strength which Commerce used in its final and amended LTFV 
determinations, and redetermine margins, as appropriate, consistent 
with Prosperity III.\12\ On February 14, 2022, Commerce issued the 
second remand redetermination, in which it reversed its determination 
to collapse Prosperity with the Yieh Phui/Synn single-entity based on 
the lack of record evidence to support a collapsing determination as to 
Prosperity and Yieh Phui and reinstated its use of AFA as to 
Prosperity's

[[Page 58247]]

reporting of yield strength for CORE production.\13\ On June 23, 2023, 
the CIT issued its final judgment to sustain the Second Redetermination 
Results concerning the underlying LTFV investigation of CORE from 
Taiwan.\14\
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    \12\ See Prosperity IV, 532 F. Supp. 3d at 1401.
    \13\ See Final Results of Redetermination Pursuant to Court 
Remand, Prosperity Tieh Enterprise Co., Ltd. et al. v. United 
States, Consol. Court No. 19-00138, Slip Op. 21-113 (CIT 2021), 
dated February 14, 2022 (Second Redetermination Results).
    \14\ See Prosperity Tieh Enterprise Co., Ltd. and Yieh Phui 
Enterprise Co., Ltd. v. United States, Consolidated Court No. 16-
00138, Slip Op. 23-95 (CIT 2023) (Prosperity V).
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All-Others Rate

    Section 735(c)(5)(A) of the Act provides that the estimated 
weighted-average dumping margin for all other producers and exporters 
not individually examined shall be equal to the weighted average of the 
estimated weighted-average dumping margins established for exporters 
and producers individually investigated excluding rates that are zero, 
de minimis, or determined entirely under section 776 of the Act. 
Prosperity is the only respondent for which Commerce calculated an 
estimated weighted-average dumping margin that is not zero, de minimis, 
or based entirely on facts otherwise available. Therefore, for purposes 
of determining the ``all-others'' rate, and pursuant to section 
735(c)(5)(A) of the Act, we are using the estimated weighted-average 
dumping margin calculated for Prosperity, as referenced in the ``Third 
Amended Final Determination'' section below.

Third Amended Final Determination

    Because there is now a final court decision, Commerce is amending 
the Final Determination, Amended Final Determination and Order, and 
Second Amended Final Determination and Timken Notice. The revised, 
amended weighted-average dumping margins for the period April 1, 2014, 
through March 31, 2015, are as follows:

------------------------------------------------------------------------
                                                       Weighted-average
                Producer or exporter                    dumping margin
                                                           (percent)
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Prosperity Tieh Enterprise Co., Ltd.................               11.04
Yieh Phui Enterprise Co., Ltd., and Synn Industrial               * 1.20
 Co., Ltd...........................................
All Others..........................................               11.04
------------------------------------------------------------------------
* De minimis.

Partial Exclusion From Antidumping Duty Order

    Pursuant to section 735(a)(4) of the Act, Commerce ``shall 
disregard any weighted average dumping margin that is de minimis as 
defined in section 733(b)(3) of the Act.'' Furthermore, and pursuant to 
section 735(c)(2) of the Act, ``the investigation shall be terminated 
upon publication of that negative determination,'' and Commerce shall 
``terminate the suspension of liquidation'' and ``release any bond or 
other security, and refund any cash deposit.'' As a result of this 
amended final determination, in which Commerce has calculated a de 
minimis estimated weighted-average dumping margin of 1.20 percent for 
Yieh Phui/Synn, Commerce is hereby excluding merchandise produced and 
exported by Yieh Phui/Synn from the Order. Accordingly, if the CIT's 
ruling is not appealed, or if appealed and upheld, Commerce will direct 
U.S. Customs and Border Protection (CBP) to refund cash deposits 
pertaining to any suspended entries produced and exported by Yieh Phui/
Synn.
    Commerce applies the exclusion from the Order to the producer/
exporter combination that was examined in the investigation. Entries of 
subject merchandise in any other producer/exporter combination, e.g., 
merchandise produced by a third party and exported by Yieh Phui or 
Synn, or produced by Yieh Phui or Synn and exported by a third party, 
are subject to the cash deposit requirements at the all-others rate. We 
note, however, pursuant to Timken, the suspension of liquidation must 
continue during the pendency of the appeals process.\15\ Accordingly, 
we will instruct CBP to continue to suspend liquidation of all 
unliquidated Yieh Phui/Synn entries referenced above until appropriate 
liquidation instructions are sent. As of the date of the publication of 
this notice in the Federal Register, a cash deposit rate of 0.00 
percent will be the applicable cash deposit rate for Yieh Phui/Synn 
entries referenced above.
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    \15\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. 
Cir. 1990) (Timken).
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    Lastly, as a result of the exclusion of Yieh Phui/Synn from the 
Order, Commerce is: (1) discontinuing the ongoing administrative review 
of the Order covering the 7/1/2021 through 6/30/2022 period of review, 
in part, with respect to Yieh Phui and Synn; and (2) will not initiate 
any new administrative reviews of Yieh Phui's or Synn's entries 
pursuant to the Order.

Cash Deposit Requirements

    Since the Final Determination, Commerce has established a new cash 
deposit rate for Prosperity.\16\ Therefore, this amended final 
determination has no effect on subsequent cash deposit rates determined 
for Prosperity. For all-other producers and/or exporters, except for 
companies that received their own rates in subsequent administrative 
reviews, Commerce will issue revised cash deposit instructions to CBP, 
adjusting the cash deposit rate for all-other producers and/or 
exporters to 11.04 percent, effective as of the date of this 
publication of this notice.
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    \16\ See Certain Corrosion-Resistant Steel Products from Taiwan: 
Amended Final Results of Antidumping Duty Administrative Review; 
2020-2021, 88 FR 13779 (March 6, 2023).
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Liquidation of Suspended Entries

    At this time, Commerce remains enjoined by Court orders from 
liquidating entries that were produced and exported by: (1) Prosperity 
and imported by Prosperity Tieh USA; that were subject of the United 
States Department of Commerce's final results in Certain Corrosion-
Resistant Steel Products from Taiwan: Final Results of Antidumping Duty 
Administrative Review; 2017-2018, 85 FR 16613 (Dep't Commerce March 24, 
2020); and that were entered, or withdrawn from warehouse, during the 
period 07/01/2017 through 6/30/2018 (see CBP message number 0101402, 
dated April 10, 2020); (2) Prosperity Tieh Enterprise Co., Ltd and 
imported by Prosperity Tieh USA, that were the subject of the United 
States Department of Commerce's final results in Certain Corrosion-
Resistant Steel Products From Taiwan: Final Results of Antidumping Duty 
Administrative Review; 2016-2017, 83 FR 64527 (Dept Commerce Dec. 17, 
2018), and that were entered, or withdrawn from warehouse, on or after 
June 2, 2016 up to and including June

[[Page 58248]]

30, 2017 (see CBP message number 9035305, dated February 24, 2023); (3) 
Yieh Phui Enterprise Co., Ltd; that were the subject of the United 
States Department of Commerce's final determination in the Certain 
Corrosion-Resistant Steel Products from Taiwan: Final Results of 
Antidumping Duty Administrative Review and Final Determination of No 
Shipments 2020-2021, 88 FR 7408 (February 3, 2023); and that were 
entered or withdrawn from warehouse, for consumption, during the period 
July 1, 2020, through June 30, 2021 (see CBP message 3055401, dated 
February 24, 2023); and (4) Yieh Phui Enterprise Co., Ltd and imported 
by Yieh Phui America, Inc.; that were subject of the United States 
Depart of Commerce's final results in Certain Corrosion-Resistant Steel 
Products from Taiwan: Final Results of Antidumping Duty Administrative 
Review and Final Determination of No Shipments; 2019-2020, 87 FR 7106 
(Dep't Commerce Feb. 8, 2022); and that were entered or withdrawn from 
warehouse, on or after July 1, 2019 up to and including June 30, 2020 
(see CBP message number 2074409, dated March 15, 2022).
    These entries will remain enjoined pursuant to the terms of the 
injunctions issued in CIT Court No. 16-00138 during the pendency of any 
appeals process.

Notification to Interested Parties

    This notice of the amended final determination is issued and 
published in accordance with sections 735(d) and 516A(c)(1) and (e) of 
the Act.

    Dated: August 21, 2023.
Abdelali Elouaradia,
Deputy Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2023-18386 Filed 8-24-23; 8:45 am]
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