[Federal Register Volume 82, Number 193 (Friday, October 6, 2017)]
[Notices]
[Pages 46758-46760]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-21582]


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DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-977]


High Pressure Steel Cylinders From the People's Republic of 
China: Notice of Court Decision Not in Harmony With Final Determination 
in Less Than Fair Value Investigation, Notice of Amended Final 
Determination Pursuant to Court Decision, Notice of Revocation of 
Antidumping Duty Order in Part, and Discontinuation of Fifth 
Antidumping Duty Administrative Review

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

SUMMARY: On August 17, 2017, the Court of International Trade (CIT or 
Court) sustained the Department of Commerce's (Department) remand 
redetermination pertaining to the final determination in the less than 
fair value (LTFV) investigation of high pressure steel cylinders from 
the People's Republic of China (PRC). Because of the CIT's final 
decision, we are notifying the public that this court decision is not 
in harmony with the Department's final determination in the LTFV 
investigation, and we are also amending our final determination, 
revoking this antidumping duty order, in part, and discontinuing the 
fifth administrative review.

DATES: Applicable August 27, 2017.

FOR FURTHER INFORMATION CONTACT: Annathea Cook, 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) 482-0250.

SUPPLEMENTARY INFORMATION: 

Background

    As noted above, on August 17, 2017, the CIT sustained the 
Department's Third Remand Redetermination pertaining to the final 
determination in the less than fair value (LTFV) investigation of high 
pressure steel cylinders from the People's Republic of China (PRC).\1\ 
In the underlying LTFV investigation, the Department found that, 
pursuant to section 777A(d)(1)(B) of the Tariff Act of 1930, as amended 
(Act), ``there was a pattern of prices that differ significantly by 
time period'' for respondent Beijing Tianhai Industry Co., Ltd. (BTIC), 
and that ``application of the standard A-to-A {(average-to-
average){time}  methodology would result in the masking of dumping that 
is unmasked by application of the alternative A-to-T {(average-to-
transaction){time}  methodology when calculating BTIC's weighted-
average dumping margin.'' \2\ In the Final Determination, the 
Department calculated BTIC's estimated weighted-average dumping margin 
using the A-to-T comparison method, applied to all of BTIC's export 
sales.\3\ In Beijing Tianhai I,\4\ the CIT held that the Department's 
explanation of its ``meaningful difference'' analysis in the Final 
Determination was insufficient to satisfy the explanation requirement 
under section 777A(d)(1)(B)(ii) of the Act, and also found that ``the 
explanation ignores the potential use of the {transaction-to-
transaction{time}  methodology entirely.'' \5\ With respect to BTIC's 
challenge to the Department's application of the A-to-T methodology to 
all of BTIC's export sales as being inconsistent with 19 CFR 
351.414(f), a regulation BTIC alleged had been inappropriately 
withdrawn, the CIT also held that ``even if the Department's withdrawal 
of 19 CFR 351.414(f) (2007) was in violation of the APA's 
{(Administrative Procedure Act){time}  notice and comment requirement, 
that error was harmless as it relates to the plaintiff in this case,'' 
and also that ``the Department need not adhere to the requirements of 
19 CFR 351.414(f) (2007).'' \6\ The Court deferred resolution of 
several other issues pertaining to the Department's targeted dumping 
analysis and application of the A-to-T comparison method when 
determining BTIC's estimated weighted-average dumping margin in Beijing 
Tianhai I.\7\
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    \1\ See Beijing Tianhai Indus. Co. v. United States, Slip Op. 
17-105 (CIT August 17, 2017) (Beijing Tianhai IV); see also Final 
Results of Redetermination Pursuant to Court Remand, High Pressure 
Steel Cylinders from the People's Republic of China, Beijing Tianhai 
Indus. Co., Ltd. v. United States, Court No. 12-00203, Slip Op. 17-
79 (CIT July 5, 2017), dated August 3, 2017 (Third Remand 
Redetermination); High Pressure Steel Cylinders from the People's 
Republic of China: Final Determination of Sales at Less than Fair 
Value, 77 FR 26739 (May 7, 2012) (Final Determination), and 
accompanying Issues and Decision Memorandum; and High Pressure Steel 
Cylinders from the People's Republic of China: Antidumping Duty 
Order, 77 FR 37377 (June 21, 2012) (Order).
    \2\ See Final Determination, and accompanying Issues and 
Decision Memorandum at 23-24.
    \3\ Id. at 24-26.
    \4\ See Beijing Tianhai Indus. Co. v. United States, 7 F. Supp. 
3d 1318 (CIT 2014) (Beijing Tianhai I).
    \5\ See Beijing Tianhai I, 7 F. Supp. 3d at 1331-32.
    \6\ Id. at 1332-37.
    \7\ Id. at 1337.
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    Following the Department's First Remand Redetermination,\8\ the CIT 
in Beijing Tianhai II sustained the Department's Final Determination as 
to the other issues that BTIC challenged, for which the CIT had 
deferred consideration in Beijing Tianhai I.\9\ However, with regard to 
the Department's ``meaningful difference'' analysis and the further 
analysis the Department provided in the First Remand Redetermination on 
that issue, the CIT held that ``the Department has chosen a narrative 
rather than an explanation,'' and ``failed to satisfy the requirements 
of the statute.'' \10\ The Court again remanded that issue to the 
Department.\11\
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    \8\ See Final Results of Redetermination Pursuant to Court 
Remand, High Pressure Steel Cylinders from the People's Republic of 
China, Beijing Tianhai Indus. Co., Ltd. v. United States, Court No. 
12-00203, Slip Op. 14-104 (CIT September 9, 2014), dated January 7, 
2015 (First Remand Redetermination).
    \9\ See Beijing Tianhai Indus. Co. v. United States, 106 F. 
Supp. 3d 1342, 1352-56 (CIT 2015) (Beijing Tianhai II)
    \10\ Id. at 1351.
    \11\ Id.

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[[Page 46759]]

    The Department filed its Second Remand Redetermination with the 
Court on February 8, 2016,\12\ in which the Department provided further 
explanation as to its ``meaningful difference'' analysis under section 
777A(d)(1)(B)(ii) of the Act. However, while the Department's Second 
Remand Redetermination was pending before the CIT, the Court of Appeals 
for the Federal Circuit (Federal Circuit) held that the Department's 
2008 withdrawal of the Limiting Regulation did not comply with the 
notice-and-comment provision of the Administrative Procedure Act, and 
that not following this provision could not be excused as harmless 
error.\13\ BTIC subsequently moved in the Beijing Tianhai CIT 
proceeding for the CIT to reconsider its prior holding in Beijing 
Tianhai I on the status of the withdrawn regulation in this case. In 
Beijing Tianhai III, based on Mid Continent Nail, the CIT held that the 
Limiting Regulation (i.e., 19 CFR 351.414(f)(2) (2007)) was in effect 
at the time the Department issued the final determination in the 
original investigation.\14\ The Limiting Regulation provided, in 
pertinent part: ``Where the criteria for identifying targeted dumping . 
. . are satisfied, the {Department{time}  normally will limit the 
application of the average-to-transaction {(A-to-T){time}  method to 
those sales that constitute targeted dumping under {19 CFR 
351.414(f)(1)(i){time} .'' \15\ On remand, the Department was ordered 
by the CIT to ``reconsider: (1) Its determination that {section 
777A(d)(1)(B)(ii) of the Act{time}  may be satisfied by applying a 
`meaningful difference' analysis that relies on 100 percent of BTIC's 
U.S. sales; and (2) should it continue to determine that using the {A-
to-T{time}  method is appropriate, the scope of BTIC's U.S. sales to 
which the {A-to-T{time}  method applies, and revise its dumping margin 
calculations as may be appropriate.'' \16\
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    \12\ Final Results of Redetermination Pursuant to Court Remand, 
High Pressure Steel Cylinders from the People's Republic of China, 
Beijing Tianhai Indus. Co., Ltd. v. United States, Court No. 12-
00203, Slip Op. 15-114 (CIT October 14, 2015), dated February 8, 
2016 (Second Remand Redetermination).
    \13\ See Mid Continent Nail Corp. v. United States, 846 F.3d 
1364 (Fed. Cir. 2017) (Mid Continent Nail).
    \14\ See Beijing Tianhai III at 17-18.
    \15\ See Antidumping Duties; Countervailing Duties, 62 FR 27296, 
27416 (1997).
    \16\ See Beijing Tianhai III at 17-18.
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    In accordance with the Court's instructions in Beijing Tianhai III 
and in light of the CIT's holding that the Limiting Regulation applied 
in this investigation, the Department issued the Third Remand 
Redetermination, which it filed with the CIT on August 4, 2017. In the 
Third Remand Redetermination, we reconsidered our meaningful difference 
analysis under section 777A(d)(1)(B)(ii) of the Act, as that analysis 
was explained in the Second Remand Redetermination.\17\ As part of 
reconsidering our meaningful difference analysis, we recalculated 
BTIC's A-to-T margin in a manner consistent with the Limiting 
Regulation by applying the A-to-T comparison methodology only to BTIC's 
targeted sales (and applying the A-to-A methodology to all other 
transactions), which resulted in a calculated margin of zero.\18\ 
BTIC's calculated margin using the A-to-A methodology for all 
transactions was also zero.\19\ In applying section 777A(d)(1)(B)(ii) 
of the Act, we found that there was no meaningful difference in BTIC's 
antidumping margins using the two aforementioned comparison 
methodologies.\20\ Consequently, in the Third Remand Redetermination, 
we explained that ``the A-to-A method can account for BTIC's prices 
which differ significantly'' and ``determined that BTIC's weighted-
average dumping margin is now zero.'' \21\ The Department also 
explained that ``as no other aspect of our Final Determination is being 
challenged, we have not made changes to the margins for any other 
entity.'' \22\ The CIT sustained the Third Remand Redetermination in 
Beijing Tianhai IV on August 17, 2017.\23\
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    \17\ See Third Remand Redetermination at 6 & n. 28.
    \18\ Id. at 6-8.
    \19\ Id. at 7.
    \20\ Id.
    \21\ Id. at 7-8.
    \22\ Id. at 7.
    \23\ See Beijing Tianhai IV at 2.
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Timken Notice

    In its decision in Timken,\24\ as clarified in Diamond 
Sawblades,\25\ 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 CIT's August 17, 2017, final judgment sustaining the 
Third Remand Redetermination constitutes a final decision of the CIT 
that is not in harmony with the Department's Final Determination. This 
notice is published in fulfillment of the publication requirements in 
Timken.
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    \24\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. 
Cir. 1990) (Timken).
    \25\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Determination

    Because there is now a final court decision, the Department is 
amending the Final Determination with respect to BTIC:

------------------------------------------------------------------------
                                                      Estimated weighted-
            Exporter                   Producer         average dumping
                                                       margin (percent)
------------------------------------------------------------------------
Beijing Tianhai Industry Co.,     Beijing Tianhai                   0.00
 Ltd.                              Industry Co., Ltd.
Beijing Tianhai Industry Co.,     Tianjin Tianhai                   0.00
 Ltd.                              High Pressure
                                   Container Co.,
                                   Ltd.
Beijing Tianhai Industry Co.,     Langfang Tianhai                  0.00
 Ltd.                              High Pressure
                                   Container Co.,
                                   Ltd.
------------------------------------------------------------------------

Partial Exclusion From Antidumping Duty Order and Discontinuation of 
Fifth Antidumping Duty Administrative Review

    Pursuant to section 735(a)(4) of the Act, the Department ``shall 
disregard any weighted average dumping margin that is de minimis as 
defined in section 733(b)(3) of the Act.'' \26\ Furthermore, and 
pursuant to section 735(c)(2) of the Act, ``the investigation shall be 
terminated upon publication of that negative determination'' and the 
Department shall ``terminate the suspension of liquidation'' and 
``release any bond or other security, and refund any cash deposit.'' 
\27\ As a result of this amended final determination, in which the 
Department has calculated an estimated weighted-average dumping margin 
of 0.00 percent for BTIC, the Department is hereby excluding 
merchandise from the above three

[[Page 46760]]

producer/exporter chains from the antidumping duty Order: \28\ 
Accordingly, the Department will direct U.S. Customs and Border 
Protection (CBP) to release any bonds or other security and refund cash 
deposits pertaining to any suspended entries from the three 
aforementioned producer-exporter combinations. This exclusion does not 
apply beyond the three producer-exporter combinations referenced above.
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    \26\ Section 733(b)(3) of the Act defines de minimis dumping 
margin as ``less than 2 percent ad valorem or the equivalent 
specific rate for the subject merchandise.''
    \27\ See sections 735(c)(2)(A) and (B) of the Act.
    \28\ See Third Remand Redetermination at 8. There continues to 
be a countervailing duty order covering BTIC's entries. This 
countervailing duty order is unaffected by this Timken notice and 
notice of amended final determination. See High Pressure Cylinders 
from the People's Republic of China: Countervailing Duty Order, 77 
FR 37384 (June 21, 2012).
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    We note, however, that pursuant to Timken the suspension of 
liquidation must continue during the pendency of the appeals process. 
Thus, we will instruct CBP to suspend liquidation of all unliquidated 
entries from the three aforementioned producer-exporter combinations at 
a cash deposit rate of 0.00 percent which are entered, or withdrawn 
from warehouse, for consumption after August 27, 2017, which is ten 
days after the CIT's final decision, in accordance with section 516A of 
the Act.\29\ If the CIT's ruling is not appealed, or if appealed and 
upheld, the Department will instruct CBP to terminate the suspension of 
liquidation and to liquidate entries subject to the three producer-
exporter combination rates stated above without regard to antidumping 
duties. As a result of the exclusion, the Department is discontinuing 
the ongoing fifth administrative review covering the period June 1, 
2016, through May 31, 2017, which only pertains to BTIC's entries 
during that period of review,\30\ and the Department will not initiate 
any new administrative reviews of BTIC's entries pursuant to the 
antidumping Order.\31\
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    \29\ See Drill Pipe from the People's Republic of China: Notice 
of Court Decision Not in Harmony with International Trade 
Commission's Injury Determination, Revocation of Antidumping and 
Countervailing Duty Orders Pursuant to Court Decision, and 
Discontinuation of Countervailing Duty Administrative Review, 79 FR 
78037, 78038 (December 29, 2014) (Drill Pipe).
    \30\ See Initiation of Antidumping and Countervailing Duty 
Administrative Reviews, 82 FR 35749 (August 1, 2017).
    \31\ See Drill Pipe, 79 FR at 78038; see also Certain Steel 
Nails from the United Arab Emirates: Notice of Court Decision Not in 
Harmony with the Final Determination and Amended Final Determination 
of the Less Than Fair Value Investigation, 80 FR 77316 (December 14, 
2015).
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    Lastly, we note that, at this time, the Department remains enjoined 
by Court order from liquidating entries that were exported by BTIC, and 
were entered, or withdrawn from warehouse, for consumption during the 
period December 16, 2011, through May 31, 2016. These entries will 
remain enjoined pursuant to the terms of the injunction during the 
pendency of any appeals process.
    This notice is issued and published in accordance with sections 
516A(c)(1) and (e) of the Act.

    Dated: September 29, 2017.
Carole Showers,
Executive Director, Office of Policy performing the non-exclusive 
functions and duties of the Assistant Secretary for Enforcement and 
Compliance.
[FR Doc. 2017-21582 Filed 10-5-17; 8:45 am]
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