[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Notices]
[Pages 74466-74467]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2012-30213]
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DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-968]
Aluminum Extrusions From the People's Republic of China: Notice
of Court Decision Not in Harmony With Final Affirmative Countervailing
Duty Determination and Notice of Amended Final Affirmative
Countervailing Duty Determination
AGENCY: Import Administration, International Trade Administration,
Department of Commerce.
SUMMARY: On November 30, 2012, the United States Court of
International Trade (CIT) sustained the Department of Commerce's
(Department's) results of redetermination, which recalculated the all
others subsidy rate in the countervailing duty (CVD) investigation of
aluminum extrusions from the People's Republic of China (PRC) \1\
pursuant to the CIT's remand order in MacLean Fogg IV. \2\ Consistent
with the decision of the United States Court of Appeals for the Federal
Circuit (CAFC) in Timken, \3\ as clarified by Diamond Sawblades, \4\
the Department is notifying the public that the final judgment in this
case is not in harmony with the Department's Final Determination and is
therefore amending its Final Determination.
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\1\ See Aluminum Extrusions From the People's Republic of China:
Final Affirmative Countervailing Duty Determination, 76 FR 18521
(April 4, 2011) (Final Determination).
\2\ See MacLean Fogg Co., et al. v . United States, Slip Op. 12-
146, Court No. 11-00209 (November 30, 2012) (MacLean Fogg IV).
\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).
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DATES: Effective Date: December 10, 2012.
FOR FURTHER INFORMATION CONTACT: Robert Copyak, AD/CVD Operations,
Office 8, Import Administration, U.S. Department of Commerce, C129,
14th Street and Constitution Avenue NW., Washington, DC 20230;
telephone: 202-482-2209.
SUPPLEMENTARY INFORMATION: On April 4, 2011, the Department issued the
Final Determination. In the Final Determination, the Department
assigned a total adverse facts available (AFA) rate of 374.14 percent
to the three non-cooperating mandatory respondents and calculated
company-specific net subsidy rates for two participating voluntary
respondents. Pursuant to the statute and regulations, the Department
averaged the rates calculated for the mandatory respondents and applied
this rate as the all-others rate.\5\
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\5\ See Final Determination, 76 FR at 18523, and accompanying
Issues and Decision Memorandum (I&D Memorandum) at Comment 9.
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In MacLean Fogg I, the CIT held that the statute was ambiguous
concerning whether the Department is required to base the all-others
rate on rates calculated for mandatory respondents and therefore the
Department was permitted to use the mandatory respondent's rate in
calculating the all-others rate, provided it did so in a reasonable
manner.\6\ Nonetheless, the CIT remanded the all-others rate to the
Department for reconsideration because the Department had failed to
articulate a logical connection between the mandatory respondent rates,
based on AFA, and the all-others companies.\7\
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\6\ See MacLean-Fogg Co. v. United States, 836 F. Supp. 2d 1367,
1373-1374 (CIT 2012) (MacLean-Fogg I).
\7\ Id. at 1376.
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In MacLean Fogg II, the CIT held that the Department's preliminary
all-others rate in the Preliminary Determination \8\ was also subject
to review under the same reasonableness standard because it had legal
effect on the entries made during the interim time period between the
issuance of the preliminary and final CVD rates, both as a cash deposit
rate and, if an annual review was sought, as a cap on the final rate
for those particular entries.\9\ Thus, in MacLean-Fogg II, the Court
held that it would consider the reasonableness of the preliminary rate
when it reviews Commerce's remand determination.\10\
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\8\ See Aluminum Extrusions From the People's Republic of China:
Preliminary Affirmative Countervailing Duty Determination, 75 FR
54302 (September 7, 2010) (Preliminary Determination).
\9\ See MacLean-Fogg Co. v. United States, 853 F. Supp. 2d 1253,
1256 (2012) (MacLean-Fogg II).
\10\ Id.
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In MacLean Fogg III, the Court considered the Department's first
remand results in which the Department did not recalculate the all-
others rate, but rather, provided data indicating that the rate
calculated for the mandatory respondents is logically connected to the
all-others companies because the mandatory respondents comprise a
significant portion of the Chinese extruded aluminum producers and
exporters and thus are representative of the Chinese extruded aluminum
industry as a whole.\11\ The CIT held that ``nothing in the statute
requires that the mandatory respondents' rates, even when based on AFA,
may only be used to develop rates for uncooperative respondents.'' \12\
However, in MacLean Fogg III, the CIT also concluded that the
Department failed to explain how the all-others rate was remedial and
not punitive when it assumed use of all subsidy programs identified in
the investigation.\13\ Therefore, the CIT remanded for the Department's
consideration of the issue.\14\
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\11\ See MacLean-Fogg Co. v. United States, 853 F. Supp. 2d
1336, 1338 (2012) (MacLean-Fogg III).
\12\ Id. at 1341.
\13\ Id. at 1342--1343.
\14\ Id. at 1343.
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In its final results of redetermination pursuant to MacLean Fogg
III, the Department designated the all-others rate as equal to the
preliminary rate it calculated for the mandatory respondents: 137.65
percent ad valorem.\15\ In MacLean Fogg IV, the CIT affirmed the
Department's final results of redetermination pursuant to remand,
holding that the Department's selection of this all-others rate is
reasonable.\16\
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\15\ See ``Final Results of Redetermination Pursuant to Court
Remand,'' dated September 13, 2012.
\16\ See MacLean Fogg IV at 11-12. The Court also held that the
preliminary all-others rate, at issue in MacLean Fogg II, is
reasonable, and sustained this rate. Id. at 12.
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[[Page 74467]]
Timken Notice
In its decision in Timken \17\ as clarified by Diamond Sawblades,
the CAFC has held that, pursuant to section 516A(e) of the Tariff Act
of 1930, as amended (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 November 30, 2012, judgment in
MacLean Fogg IV sustaining the Department's decision to designate the
all others rate as equal to the preliminary rate it calculated for the
mandatory respondents (137.65 percent ad valorem), constitutes a final
decision of that court that is not in harmony with the Department's
Final Determination. This notice is published in fulfillment of the
publication requirements of Timken.
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\17\ See Timken, 893 F.2d at 341.
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Amended Final Determination
Because there is now a final court decision with respect to the
Final Determination, the Department amends its Final Determination. The
Department finds the following revised net subsidy rate exists:
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Company Ad valorem net subsidy rate
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All Others Rate......................... 137.65 percent
ad valorem.
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For companies subject to the all others rate, the cash deposit rate
will be the rate listed above and the Department will instruct U.S.
Customs and Border Protection accordingly. This notice is issued and
published in accordance with sections 516A(e)(1), 751(a)(1), and
777(i)(1) of the Act.
Dated: December 6, 2012.
Paul Piquado,
Assistant Secretary for Import Administration.
[FR Doc. 2012-30213 Filed 12-13-12; 8:45 am]
BILLING CODE 3510-DS-P