Carbon and Certain Alloy Steel Wire Rod From Mexico: Notice of Court Decision Not in Harmony With Amended Final Determination and Notice of Second Amended Final Determination, 46051-46053 [2016-16803]
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Federal Register / Vol. 81, No. 136 / Friday, July 15, 2016 / Notices
briefs may be filed no later than five
days after the briefs are filed. All
rebuttal comments must be limited to
comments raised in the case briefs.9
Interested parties who wish to request
a hearing must submit a written request
to the Assistant Secretary for
Enforcement & Compliance, U.S.
Department of Commerce, within 30
days after the date of publication of this
notice.10 Requests should contain the
party’s name, address, and telephone
number, the number of participants, and
a list of the issues to be discussed. Oral
argument presentations will be limited
to issues raised in the briefs. If a request
for a hearing is made, the Department
intends to hold the hearing at the U.S.
Department of Commerce, 14th Street
and Constitution Avenue NW.,
Washington, DC 20230, at a date and
time to be determined.11 Parties should
confirm by telephone the date, time, and
location of the hearing two days before
the scheduled date.
All submissions, with limited
exceptions, must be filed electronically
using ACCESS. An electronically filed
document must be received successfully
in its entirety by the Department’s
electronic records system, ACCESS, by
5 p.m. Eastern Time (ET) on the due
date. Documents excepted from the
electronic submission requirements
must be filed manually (i.e., in paper
form) with the APO/Dockets Unit in
Room 18022, and stamped with the date
and time of receipt by 5 p.m. ET on the
due date.12
The Department intends to issue the
final results of this NSR, which will
include the results of its analysis of
issues raised in any briefs received, no
later than 90 days after the date these
preliminary results of review are issued
pursuant to section 751(a)(2)(B) of the
Act.
sradovich on DSK3GMQ082PROD with NOTICES
Dated: June 28, 2016.
Paul Piquado,
Assistant Secretary for Enforcement and
Compliance.
Appendix I
List of Sections in the Preliminary Decision
Memorandum
1. Summary
2. Background
3. Scope of the Order
4. Discussion of the Methodology
5. Conclusion
BILLING CODE 3510–DS–P
If the Department proceeds to a final
rescission of Durum’s NSR, the
assessment rate to which Durum’s
shipments will be subject will not be
affected by this review. If the
Department does not proceed to a final
rescission of this new shipper review,
pursuant to 19 CFR 351.212(b)(1), we
will calculate importer-specific (or
customer-specific) assessment rates
based on the final results of this review.
9 See
19 CFR 351.309(d).
19 CFR 351.310(c).
11 See 19 CFR 351.310(d).
12 See Antidumping and Countervailing Duty
Proceedings: Electronic Filing Procedures;
Administrative Protective Order Procedures, 76 FR
39263 (July 6, 2011).
10 See
19:03 Jul 14, 2016
Notification to Importers
This notice also serves as a
preliminary reminder to importers of
their responsibility under 19 CFR
351.402(f)(2) to file a certificate
regarding the reimbursement of
antidumping duties prior to liquidation
of the relevant entries during this
review period. Failure to comply with
this requirement could result in the
Department’s presumption that
reimbursement of antidumping duties
occurred and the subsequent assessment
of double antidumping duties.
We are issuing and publishing these
results in accordance with sections
751(a)(2)(B) and 777(i)(1) of the Act.
[FR Doc. 2016–16694 Filed 7–14–16; 8:45 am]
Assessment Rates
VerDate Sep<11>2014
Cash Deposit Requirements
Effective upon publication of the final
rescission or the final results of this
NSR, the Department will instruct CBP
to discontinue the option of posting a
bond or security in lieu of a cash
deposit for entries of Durum’s subject
merchandise. If the Department
proceeds to a final rescission of this
NSR, Durum’s cash deposit rate will
continue to be the all-others rate. If the
Department issues final results for this
NSR, the Department will instruct CBP
to collect cash deposits, effective upon
the publication of the final results, at
the rates established therein.
Jkt 238001
DEPARTMENT OF COMMERCE
International Trade Administration
[A–201–830]
Carbon and Certain Alloy Steel Wire
Rod From Mexico: Notice of Court
Decision Not in Harmony With
Amended Final Determination and
Notice of Second Amended Final
Determination
Enforcement and Compliance,
International Trade Administration,
Department of Commerce.
SUMMARY: On December 22, 2014, the
United States Court of International
AGENCY:
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46051
Trade (CIT) entered its final judgment in
Deacero III,1 sustaining the Department
of Commerce’s (the Department)
negative circumvention determination
from the First Remand Results as it
relates to the antidumping duty order on
carbon and certain alloy steel wire rod
from Mexico.2 Consistent with the
decision of the United States Court of
Appeals for the Federal Circuit (Federal
Circuit) in Timken,3 as clarified by
Diamond Sawblades,4 the Department
issued the Amended Final
Determination 5 notifying the public that
the final judgment of the CIT in this
case was not in harmony with the
Department’s finding in the Final
Determination.6 In the Amended Final
Determination, the Department found,
under protest, that, pursuant to section
781(c) of the Tariff Act of 1930, as
amended (the Act) and 19 CFR 351.225,
Deacero’s entries of wire rod with an
actual diameter of 4.75 millimeters
(mm) to 5.00 mm (also referred to in this
notice as small diameter wire rod) did
not constitute circumvention of the
Order. On April 5, 2016, the Federal
Circuit reversed the CIT’s holding in
Deacero III.7 In its holding, the Federal
Circuit reinstated the Department’s
original finding from the Final
Determination that Deacero’s shipments
of small diameter wire rod to the United
States constitute a minor alteration
circumvention of the Order.8
DATES: Effective April 15, 2016.
FOR FURTHER INFORMATION CONTACT: Eric
B. Greynolds, or James Terpstra. AD/
1 See Deacero S.A.P.I. de C.V. and Deacero USA,
Inc. v. United States and Arcelormittal USA LLC,
Gerdau Ameristeel U.S. Inc., Evraz Rocky Mountain
Steel, and Nucor Corporation, Court No. 12–00345,
Slip Op. 14–151 (December 22, 2014) (Deacero III).
2 See Final Results of Redetermination Pursuant
to Deacero S.A. de C.V. and Deacero USA Inc. v.
United States and Arcelormittal USA LLC, Gerdau
Ameristeel U.S. Inc., Evraz Rocky Mountain Steel,
and Nucor Corporation, Court No. 12–00345; Slip
Op. 13–126 (CIT 2013) (January 29, 2014) (First
Remand Results); Notice of Antidumping Duty
Orders: Carbon and Certain Alloy Steel Wire Rod
from Brazil, Indonesia, Mexico, Moldova, Trinidad
and Tobago, and Ukraine, 67 FR 65945 (October 29,
2002) (Order).
3 See Timken Co. v. United States, 893 F.2d 337
(Fed. Cir. 1990) (Timken).
4 See Diamond Sawblades Mfrs. Coalition v.
United States, 626 F.3d 1374 (Fed. Cir. 2010)
(Diamond Sawblades).
5 See Carbon and Certain Alloy Steel Wire Rod
From Mexico: Notice of Court Decision Not in
Harmony With Final Results and Notice of
Amended Final Determination, 80 FR 44326 (July
27, 2015) (Amended Final Determination).
6 See Carbon and Certain Alloy Steel Wire Rod
From Mexico: Affirmative Final Determination of
Circumvention of the Antidumping Duty Order, 77
FR 59892 (October 1, 2012) (Final Determination)
and accompanying Issues and Decision
Memorandum (Final Decision Memorandum).
7 See Deacero S.A.de C.V. v. United States, 817
F.3d 1332 (Fed. Cir. 2016) (Deacero IV).
8 Id. at 12.
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Federal Register / Vol. 81, No. 136 / Friday, July 15, 2016 / Notices
CVD Operations, Office III, Enforcement
and Compliance, International Trade
Administration, U.S. Department of
Commerce, 14th Street and Constitution
Avenue NW., Washington, DC 20230;
telephone: (202) 482–6071, (202) 482–
3965, respectively.
SUPPLEMENTARY INFORMATION:
Background
On October 1, 2012, the Department
issued the Final Determination in which
it determined that Deacero’s entries of
wire rod with an actual diameter of 4.75
mm to 5.00 mm constitute a minor
alteration circumvention of the Order.9
Deacero challenged the Department’s
determination. Upon review, the CIT
remanded the Final Determination,
holding that the Department improperly
determined that Deacero’s entries of
small diameter wire rod were inside the
scope of the Order despite the fact that
small diameter wire rod was
commercially available before the
investigation and Petitioners 10
‘‘consciously chose to limit the Order’s
reach to certain steel products 5.00 mm
or more, but less than 19.00 mm in solid
cross-sectional diameter.’’ 11 On
remand, based on the Court’s reasoning,
the Department found that there was no
alternative but to change the results of
the anti-circumvention determination
and find that Deacero’s entries of wire
rod with an actual diameter of 4.75 mm
to 5.00 mm were not within the scope
of the Order.12
In Deacero II, the Court held that
although the Department ultimately
reached a supportable result in the First
Remand Results, remand was
nonetheless necessary because the
Department arrived at the result by
misinterpreting Deacero I.13 Therefore,
in Deacero II, the Court instructed the
Department to explain whether it seeks
the Court’s leave to revisit the issue of
commercial availability.14
In the Second Remand Results, the
Department continued to respectfully
disagree with the Court that the
‘‘commercial availability’’ of a product
in the country in question, in a third
country or in the United States bars the
Department from reaching an
Final Determination, 77 FR at 59893.
are ArcelorMittal USA LLC, Gerdau
Ameristeel U.S. Inc, Rocky Mountain Steel,
Members of the Wire Rod Producers Coalition and
Nucor Corporation (Nucor).
11 See Deacero S.A. de C.V. v. United States, 37
CIT, 942 F. Supp. 2d 1321, 1324–25 (September 20,
2013) (Deacero I); Deacero Remand, Slip Op. 13–
126 at 15.
12 See First Remand Results at 6.
13 See Deacero S.A.P.I. de C.V. v. United States,
Slip Op. 14–99, 2014 WL 4244349, * 1–3 (August
28, 2014) (Deacero II) at 11–12.
14 Id. at 12.
affirmative anti-circumvention
determination under the minor
alteration provision of the statute.15 For
these same reasons, the Department did
not request a remand to further consider
‘‘commercial availability’’ in the context
of this minor alteration proceeding. On
December 22, 2014, the CIT entered
final judgment sustaining the First
Remand Results.16 Accordingly, July 27,
2015, the Department issued the
Amended Final Determination in which
it found that Deacero’s entries of small
diameter wire rod were not
circumventing the Order and, thus, were
not subject to antidumping (AD)
duties.17 In the Amended Final
Determination, the Department
indicated that it would instruct Customs
and Border Protection (CBP) to continue
the suspension of liquidation of the
subject merchandise, but set the cash
deposit rate for Deacero’s entries of wire
rod with an actual diameter of 4.75 mm
up to 5.00 mm to zero pending a final
and conclusive court decision.18
Further, in the Amended Final
Determination, the Department stated
that for any AD duties which were
deposited for Deacero’s entries of wire
rod with an actual diameter of 4.75 mm
up to 5.00 mm entered from January 1,
2015, to July 27, 2015, the publication
date of the Amended Final
Determination, the Department would
instruct CBP to refund the cash deposit
upon request but continue to suspend
the entries at a zero cash deposit rate.19
In Deacero IV, the Federal Circuit
held that in reversing the Department’s
affirmative circumvention finding in the
Final Determination, the CIT erred in its
interpretation of case precedent.20 The
Federal Circuit found that the CIT
incorrectly interpreted Wheatland to
mean that an article cannot be subject to
an anti-circumvention inquiry if that
article is not expressly included within
the literal terms of the order.
Specifically, the Federal Circuit
reasoned that where Wheatland held
that a minor alternation inquiry is
inappropriate when an order expressly
excludes the allegedly altered product,
the order at issue contains no explicit
exclusion of steel wire rod with a
9 See
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10 Petitioners
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Jkt 238001
15 See Final Results of Redetermination Pursuant
to Deacero S.A. de C.V. et al., v. United States,
Court No. 12–00345; Slip Op. 14–99 (CIT August
28, 2014) (Second Remand Results).
16 See Deacero III.
17 See Amended Final Determination, 80 FR at
44327.
18 Id.
19 Id.
20 See Deacero IV, 817 F.3d at 1337–39, citing to
Deacero I, 942 F. Supp. 2d at 1328–1332 quoting
Wheatland Tube Co. v. United States, 161 F.3d
1365, 1370 (Fed. Cir. 1998) (Wheatland).
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diameter that is less than 5.00 mm.21
The Federal Circuit also held that
substantial evidence supports the
Department’s determination that smalldiameter steel wire rod was not
commercially available prior to the
Order, notwithstanding that some smalldiameter steel wire rod was in existence
at some prior time in non-investigated
countries.22 Accordingly, the Federal
Circuit held that the Department’s
initial finding in the Final
Determination that Deacero’s entries of
wire rod with an actual diameter of 4.75
mm to 5.00 mm constitute a
circumventing minor alteration of the
Order was in accordance with law and
supported by substantial evidence.23
Timken Notice
In its decision in Timken, 893 F.2d at
341, as clarified by Diamond Sawblades,
the Federal Circuit held that, pursuant
to section 516A(e) of the Act, the
Department must publish a notice of a
court decision that is not ‘‘in harmony’’
with a Department determination and
must suspend liquidation of entries
pending a ‘‘conclusive’’ court decision.
The Federal Circuit’s judgement in
Deacero IV sustaining the Department’s
original finding in the Final
Determination that Deacero’s entries of
wire rod with an actual diameter of 4.75
mm to 5.00 mm constitute a minor
alteration circumvention of the Order
constitutes a final decision of the Court
that is not in harmony with the
Department’s negative circumvention
finding in the First Remand Results and
Amended Final Determination. This
notice is published in fulfillment of the
publication requirements of Timken.
Amended Final Determination
Because there is now a final court
decision, we are amending the
Amended Final Determination with
respect to Deacero’s entries of wire rod
with an actual diameter of 4.75 mm to
5.00 mm. Based on the Federal Circuit’s
holding in Deacero IV, Deacero’s entries
of wire rod with an actual diameter of
4.75 mm to 5.00 mm are covered by the
scope of the Order and, thus, subject to
AD duties.
Accordingly, the Department will
instruct CBP to continue to suspend
liquidation of the subject merchandise
and, as of January 1, 2015, the effective
date for the Amended Final
Determination giving effect to the CIT’s
since-reversed final judgment, to set the
cash deposit rate for Deacero’s entries of
wire rod with an actual diameter of 4.75
21 See
Deacero IV, 817 F.3d at 1338.
at 1339.
23 Id. at 1339.
22 Id.
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Federal Register / Vol. 81, No. 136 / Friday, July 15, 2016 / Notices
mm to 5.00 mm to the applicable cash
deposit rate as determined in
administrative reviews.24 Specifically,
for entries of small diameter wire rod
from Deacero that entered the United
States on or after January 1, 2015, whose
entries were suspended at a zero cash
deposit rate subject to the Amended
Final Determination, we will instruct
CBP to collect cash deposits at the
following rates:
Applicable
cash deposit
rate
On or after
Before
January 1, 2015 ..........................................................................
June 22, 2015 .............................................................................
May 19, 2016 ..............................................................................
June 22, 2015 ............................................................................
May 19, 2016 .............................................................................
.....................................................................................................
The Commission on
Enhancing National Cybersecurity will
meet Tuesday, August 23, 2016, from
9:00 a.m. until 5:00 p.m. Central Time
at the University of Minnesota’s TCF
Bank Stadium-DQ Club Room. The
primary purpose of the meeting is to
discuss the challenges and
opportunities for organizations and
consumers in securing the digital
economy. In particular, the meeting will
address: (1) Challenges confronting
consumers in the digital economy; (2)
innovation (Internet of Things,
healthcare, and other areas); and (3)
assured products and services. The
meeting will support detailed
recommendations to strengthen
cybersecurity in both the public and
private sectors while protecting privacy,
ensuring public safety and economic
and national security, fostering
discovery and development of new
technical solutions, and bolstering
partnerships between Federal, State,
local, tribal and territorial governments
and the private sector in the
development, promotion, and use of
cybersecurity technologies, policies, and
best practices. All sessions will be open
to the public.
DATES: The meeting will be held on
Tuesday, August 23, 2016, from 9:00
a.m. until 5:00 p.m. Central Time.
ADDRESSES: The meeting will be held at
the University of Minnesota’s TCF Bank
Stadium-DQ Club Room, 3rd Level,
located at 420 SE 23rd Avenue,
Minneapolis, Minnesota 55455. The
meeting is open to the public and
interested parties are requested to
contact Sara Kerman at the contact
information indicated in the FOR
FURTHER INFORMATION CONTACT section of
this notice in advance of the meeting for
building entrance requirements.
FOR FURTHER INFORMATION CONTACT: Sara
Kerman, Information Technology
Laboratory, National Institute of
Standards and Technology, 100 Bureau
Drive, Stop 2000, Gaithersburg, MD
20899–8900, telephone: 301–975–4634,
or by email at: eo-commission@nist.gov.
Please use subject line ‘‘Open Meeting of
the Commission on Enhancing National
Cybersecurity—MN’’.
SUPPLEMENTARY INFORMATION: Pursuant
to the Federal Advisory Committee Act,
as amended, 5 U.S.C. App., notice is
hereby given that the Commission on
Enhancing National Cybersecurity (‘‘the
Commission’’) will meet Tuesday,
24 As of January 1, 2015, the cash deposit rate
applicable to Deacero’s entries of subject
merchandise was 12.08 percent, as established in
Carbon and Certain Alloy Steel Wire Rod From
Mexico: Final Results of Administrative Review:
2010–2011, 78 FR 28190, 28191 (May 14, 2013) (10/
11 Final Results). Deacero’s cash deposit rate was
subsequently revised to zero percent in Carbon and
Certain Alloy Steel Wire Rod From Mexico: Final
Results of Administrative Review: 2012–2013, 80 FR
35626, 35627 (June 22, 2015) (12/13 Amended Final
Results), and 1.13 percent in Carbon and Certain
Alloy Steel Wire Rod From Mexico: Amended Final
Results of Administrative Review: 2013–2014, 81 FR
41521, 41522 (June 27, 2016) (13/14 Amended Final
Results.).
Additionally, with regard to any of
Deacero’s unliquidated entries of wire
rod with an actual diameter of 4.75 mm
to 5.00 mm for which an administrative
review has been completed, we will
instruct CBP to assess AD duties at the
applicable rates.
Notification to Interested Parties
This notice is issued and published in
accordance with sections 516A(e)(1),
751(a)(1), and 777(i)(1) of the Act.
Dated: July 8, 2016.
Paul Piquado,
Assistant Secretary for Enforcement and
Compliance.
[FR Doc. 2016–16803 Filed 7–14–16; 8:45 am]
BILLING CODE 3510–DS–P
DEPARTMENT OF COMMERCE
National Institute of Standards and
Technology
Open Meeting of the Commission on
Enhancing National Cybersecurity
National Institute of Standards
and Technology, Commerce.
ACTION: Notice.
AGENCY:
sradovich on DSK3GMQ082PROD with NOTICES
SUMMARY:
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25 12.08
26 0.00
27 1.13
August 23, 2016, from 9:00 a.m. until
5:00 p.m. Central Time. All sessions
will be open to the public. The
Commission is authorized by Executive
Order 13718, Commission on Enhancing
National Cybersecurity.1 The
Commission was established by the
President and will make detailed
recommendations to strengthen
cybersecurity in both the public and
private sectors while protecting privacy,
ensuring public safety and economic
and national security, fostering
discovery and development of new
technical solutions, and bolstering
partnerships between Federal, state,
local, tribal and territorial governments
and the private sector in the
development, promotion, and use of
cybersecurity technologies, policies, and
best practices.
The agenda is expected to include the
following items:
—Introductions.
—Panel discussion on the challenges
confronting the consumers in the
digital economy.
—Panel discussion on innovation
(Internet of Things, healthcare, and
other areas).
—Panel discussion on assured products
and services.
—Conclusion.
Note that agenda items may change
without notice. The final agenda will be
posted on https://www.nist.gov/
cybercommission. Seating will be
available for the public and media. No
registration is required to attend this
meeting; however, on-site attendees are
asked to voluntarily sign in and space
will be available on a first-come, firstserved basis.
Public Participation: The Commission
agenda will include a period of time,
not to exceed fifteen minutes, for oral
comments from the public on Tuesday,
25 See
26 See
10/11 Final Results, 78 FR at 28191.
12/13 Amended Final Results, 80 FR at
35627.
27 See 13/14 Amended Final Results, 81 FR at
41522.
1 https://www.federalregister.gov/articles/2016/
02/12/2016-03038/commission-on-enhancingnational-cybersecurity.
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]]>Agencies
[Federal Register Volume 81, Number 136 (Friday, July 15, 2016)]
[Notices]
[Pages 46051-46053]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2016-16803]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[A-201-830]
Carbon and Certain Alloy Steel Wire Rod From Mexico: Notice of
Court Decision Not in Harmony With Amended Final Determination and
Notice of Second Amended Final Determination
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On December 22, 2014, the United States Court of International
Trade (CIT) entered its final judgment in Deacero III,\1\ sustaining
the Department of Commerce's (the Department) negative circumvention
determination from the First Remand Results as it relates to the
antidumping duty order on carbon and certain alloy steel wire rod from
Mexico.\2\ Consistent with the decision of the United States Court of
Appeals for the Federal Circuit (Federal Circuit) in Timken,\3\ as
clarified by Diamond Sawblades,\4\ the Department issued the Amended
Final Determination \5\ notifying the public that the final judgment of
the CIT in this case was not in harmony with the Department's finding
in the Final Determination.\6\ In the Amended Final Determination, the
Department found, under protest, that, pursuant to section 781(c) of
the Tariff Act of 1930, as amended (the Act) and 19 CFR 351.225,
Deacero's entries of wire rod with an actual diameter of 4.75
millimeters (mm) to 5.00 mm (also referred to in this notice as small
diameter wire rod) did not constitute circumvention of the Order. On
April 5, 2016, the Federal Circuit reversed the CIT's holding in
Deacero III.\7\ In its holding, the Federal Circuit reinstated the
Department's original finding from the Final Determination that
Deacero's shipments of small diameter wire rod to the United States
constitute a minor alteration circumvention of the Order.\8\
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\1\ See Deacero S.A.P.I. de C.V. and Deacero USA, Inc. v. United
States and Arcelormittal USA LLC, Gerdau Ameristeel U.S. Inc., Evraz
Rocky Mountain Steel, and Nucor Corporation, Court No. 12-00345,
Slip Op. 14-151 (December 22, 2014) (Deacero III).
\2\ See Final Results of Redetermination Pursuant to Deacero
S.A. de C.V. and Deacero USA Inc. v. United States and Arcelormittal
USA LLC, Gerdau Ameristeel U.S. Inc., Evraz Rocky Mountain Steel,
and Nucor Corporation, Court No. 12-00345; Slip Op. 13-126 (CIT
2013) (January 29, 2014) (First Remand Results); Notice of
Antidumping Duty Orders: Carbon and Certain Alloy Steel Wire Rod
from Brazil, Indonesia, Mexico, Moldova, Trinidad and Tobago, and
Ukraine, 67 FR 65945 (October 29, 2002) (Order).
\3\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir.
1990) (Timken).
\4\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
\5\ See Carbon and Certain Alloy Steel Wire Rod From Mexico:
Notice of Court Decision Not in Harmony With Final Results and
Notice of Amended Final Determination, 80 FR 44326 (July 27, 2015)
(Amended Final Determination).
\6\ See Carbon and Certain Alloy Steel Wire Rod From Mexico:
Affirmative Final Determination of Circumvention of the Antidumping
Duty Order, 77 FR 59892 (October 1, 2012) (Final Determination) and
accompanying Issues and Decision Memorandum (Final Decision
Memorandum).
\7\ See Deacero S.A.de C.V. v. United States, 817 F.3d 1332
(Fed. Cir. 2016) (Deacero IV).
\8\ Id. at 12.
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DATES: Effective April 15, 2016.
FOR FURTHER INFORMATION CONTACT: Eric B. Greynolds, or James Terpstra.
AD/
[[Page 46052]]
CVD Operations, Office III, Enforcement and Compliance, International
Trade Administration, U.S. Department of Commerce, 14th Street and
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
6071, (202) 482-3965, respectively.
SUPPLEMENTARY INFORMATION:
Background
On October 1, 2012, the Department issued the Final Determination
in which it determined that Deacero's entries of wire rod with an
actual diameter of 4.75 mm to 5.00 mm constitute a minor alteration
circumvention of the Order.\9\ Deacero challenged the Department's
determination. Upon review, the CIT remanded the Final Determination,
holding that the Department improperly determined that Deacero's
entries of small diameter wire rod were inside the scope of the Order
despite the fact that small diameter wire rod was commercially
available before the investigation and Petitioners \10\ ``consciously
chose to limit the Order's reach to certain steel products 5.00 mm or
more, but less than 19.00 mm in solid cross-sectional diameter.'' \11\
On remand, based on the Court's reasoning, the Department found that
there was no alternative but to change the results of the anti-
circumvention determination and find that Deacero's entries of wire rod
with an actual diameter of 4.75 mm to 5.00 mm were not within the scope
of the Order.\12\
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\9\ See Final Determination, 77 FR at 59893.
\10\ Petitioners are ArcelorMittal USA LLC, Gerdau Ameristeel
U.S. Inc, Rocky Mountain Steel, Members of the Wire Rod Producers
Coalition and Nucor Corporation (Nucor).
\11\ See Deacero S.A. de C.V. v. United States, 37 CIT, 942 F.
Supp. 2d 1321, 1324-25 (September 20, 2013) (Deacero I); Deacero
Remand, Slip Op. 13-126 at 15.
\12\ See First Remand Results at 6.
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In Deacero II, the Court held that although the Department
ultimately reached a supportable result in the First Remand Results,
remand was nonetheless necessary because the Department arrived at the
result by misinterpreting Deacero I.\13\ Therefore, in Deacero II, the
Court instructed the Department to explain whether it seeks the Court's
leave to revisit the issue of commercial availability.\14\
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\13\ See Deacero S.A.P.I. de C.V. v. United States, Slip Op. 14-
99, 2014 WL 4244349, * 1-3 (August 28, 2014) (Deacero II) at 11-12.
\14\ Id. at 12.
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In the Second Remand Results, the Department continued to
respectfully disagree with the Court that the ``commercial
availability'' of a product in the country in question, in a third
country or in the United States bars the Department from reaching an
affirmative anti-circumvention determination under the minor alteration
provision of the statute.\15\ For these same reasons, the Department
did not request a remand to further consider ``commercial
availability'' in the context of this minor alteration proceeding. On
December 22, 2014, the CIT entered final judgment sustaining the First
Remand Results.\16\ Accordingly, July 27, 2015, the Department issued
the Amended Final Determination in which it found that Deacero's
entries of small diameter wire rod were not circumventing the Order
and, thus, were not subject to antidumping (AD) duties.\17\ In the
Amended Final Determination, the Department indicated that it would
instruct Customs and Border Protection (CBP) to continue the suspension
of liquidation of the subject merchandise, but set the cash deposit
rate for Deacero's entries of wire rod with an actual diameter of 4.75
mm up to 5.00 mm to zero pending a final and conclusive court
decision.\18\ Further, in the Amended Final Determination, the
Department stated that for any AD duties which were deposited for
Deacero's entries of wire rod with an actual diameter of 4.75 mm up to
5.00 mm entered from January 1, 2015, to July 27, 2015, the publication
date of the Amended Final Determination, the Department would instruct
CBP to refund the cash deposit upon request but continue to suspend the
entries at a zero cash deposit rate.\19\
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\15\ See Final Results of Redetermination Pursuant to Deacero
S.A. de C.V. et al., v. United States, Court No. 12-00345; Slip Op.
14-99 (CIT August 28, 2014) (Second Remand Results).
\16\ See Deacero III.
\17\ See Amended Final Determination, 80 FR at 44327.
\18\ Id.
\19\ Id.
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In Deacero IV, the Federal Circuit held that in reversing the
Department's affirmative circumvention finding in the Final
Determination, the CIT erred in its interpretation of case
precedent.\20\ The Federal Circuit found that the CIT incorrectly
interpreted Wheatland to mean that an article cannot be subject to an
anti-circumvention inquiry if that article is not expressly included
within the literal terms of the order. Specifically, the Federal
Circuit reasoned that where Wheatland held that a minor alternation
inquiry is inappropriate when an order expressly excludes the allegedly
altered product, the order at issue contains no explicit exclusion of
steel wire rod with a diameter that is less than 5.00 mm.\21\ The
Federal Circuit also held that substantial evidence supports the
Department's determination that small-diameter steel wire rod was not
commercially available prior to the Order, notwithstanding that some
small-diameter steel wire rod was in existence at some prior time in
non-investigated countries.\22\ Accordingly, the Federal Circuit held
that the Department's initial finding in the Final Determination that
Deacero's entries of wire rod with an actual diameter of 4.75 mm to
5.00 mm constitute a circumventing minor alteration of the Order was in
accordance with law and supported by substantial evidence.\23\
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\20\ See Deacero IV, 817 F.3d at 1337-39, citing to Deacero I,
942 F. Supp. 2d at 1328-1332 quoting Wheatland Tube Co. v. United
States, 161 F.3d 1365, 1370 (Fed. Cir. 1998) (Wheatland).
\21\ See Deacero IV, 817 F.3d at 1338.
\22\ Id. at 1339.
\23\ Id. at 1339.
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Timken Notice
In its decision in Timken, 893 F.2d at 341, as clarified by Diamond
Sawblades, the Federal Circuit held that, pursuant to section 516A(e)
of the Act, the Department must publish a notice of a court decision
that is not ``in harmony'' with a Department determination and must
suspend liquidation of entries pending a ``conclusive'' court decision.
The Federal Circuit's judgement in Deacero IV sustaining the
Department's original finding in the Final Determination that Deacero's
entries of wire rod with an actual diameter of 4.75 mm to 5.00 mm
constitute a minor alteration circumvention of the Order constitutes a
final decision of the Court that is not in harmony with the
Department's negative circumvention finding in the First Remand Results
and Amended Final Determination. This notice is published in
fulfillment of the publication requirements of Timken.
Amended Final Determination
Because there is now a final court decision, we are amending the
Amended Final Determination with respect to Deacero's entries of wire
rod with an actual diameter of 4.75 mm to 5.00 mm. Based on the Federal
Circuit's holding in Deacero IV, Deacero's entries of wire rod with an
actual diameter of 4.75 mm to 5.00 mm are covered by the scope of the
Order and, thus, subject to AD duties.
Accordingly, the Department will instruct CBP to continue to
suspend liquidation of the subject merchandise and, as of January 1,
2015, the effective date for the Amended Final Determination giving
effect to the CIT's since-reversed final judgment, to set the cash
deposit rate for Deacero's entries of wire rod with an actual diameter
of 4.75
[[Page 46053]]
mm to 5.00 mm to the applicable cash deposit rate as determined in
administrative reviews.\24\ Specifically, for entries of small diameter
wire rod from Deacero that entered the United States on or after
January 1, 2015, whose entries were suspended at a zero cash deposit
rate subject to the Amended Final Determination, we will instruct CBP
to collect cash deposits at the following rates:
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\24\ As of January 1, 2015, the cash deposit rate applicable to
Deacero's entries of subject merchandise was 12.08 percent, as
established in Carbon and Certain Alloy Steel Wire Rod From Mexico:
Final Results of Administrative Review: 2010-2011, 78 FR 28190,
28191 (May 14, 2013) (10/11 Final Results). Deacero's cash deposit
rate was subsequently revised to zero percent in Carbon and Certain
Alloy Steel Wire Rod From Mexico: Final Results of Administrative
Review: 2012-2013, 80 FR 35626, 35627 (June 22, 2015) (12/13 Amended
Final Results), and 1.13 percent in Carbon and Certain Alloy Steel
Wire Rod From Mexico: Amended Final Results of Administrative
Review: 2013-2014, 81 FR 41521, 41522 (June 27, 2016) (13/14 Amended
Final Results.).
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Applicable
On or after Before cash deposit
rate
------------------------------------------------------------------------
January 1, 2015................... June 22, 2015....... \25\ 12.08
June 22, 2015..................... May 19, 2016........ \26\ 0.00
May 19, 2016...................... .................... \27\ 1.13
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Additionally, with regard to any of Deacero's unliquidated entries of
wire rod with an actual diameter of 4.75 mm to 5.00 mm for which an
administrative review has been completed, we will instruct CBP to
assess AD duties at the applicable rates.
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\25\ See 10/11 Final Results, 78 FR at 28191.
\26\ See 12/13 Amended Final Results, 80 FR at 35627.
\27\ See 13/14 Amended Final Results, 81 FR at 41522.
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Notification to Interested Parties
This notice is issued and published in accordance with sections
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.
Dated: July 8, 2016.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2016-16803 Filed 7-14-16; 8:45 am]
BILLING CODE 3510-DS-P
