[Federal Register Volume 80, Number 217 (Tuesday, November 10, 2015)]
[Notices]
[Pages 69640-69641]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2015-28668]
-----------------------------------------------------------------------
DEPARTMENT OF COMMERCE
International Trade Administration
[C-570-968]
Aluminum Extrusions From the People's Republic of China: Amended
Final Affirmative Countervailing Duty Determination Pursuant to Court
Decision
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
SUMMARY: On October 23, 2015, the United States Court of International
Trade (CIT) sustained the Department of Commerce's (the Department's)
results of redetermination pursuant to court remand, which recalculated
the all-others subsidy rate in the countervailing duty (CVD)
investigation of aluminum extrusions from the People's Republic of
China (the PRC),\1\ pursuant to the CIT's MacLean-Fogg Remand Order.\2\
Consistent with the clarification in the United States Court of Appeals
for the Federal Circuit (CAFC) decision in Diamond Sawblades,\3\ we are
amending the Final Determination.
---------------------------------------------------------------------------
\1\ See Aluminum Extrusions from the People's Republic of China:
Final Affirmative Countervailing Duty Determination, 76 FR 18521
(April 4, 2011) and 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, 77 FR 74466
(December 14, 2012) (collectively, Final Determination).
\2\ See MacLean-Fogg Co. v. United States, Consol. Court No. 11-
00209, Slip Op. 15-85 (CIT August 2015) (MacLean-Fogg Remand Order).
\3\ See Diamond Sawblades Mfrs. Coalition v. United States, 626
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
---------------------------------------------------------------------------
DATES: Effective date: November 2, 2015.
FOR FURTHER INFORMATION CONTACT: Kristen Johnson, AD/CVD Operations,
Office III, Enforcement and Compliance, U.S. Department of Commerce,
14th Street and Constitution Avenue NW., Washington, DC 20230;
telephone: 202-482-4793.
SUPPLEMENTARY INFORMATION: 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. The Department averaged the rates calculated for the
mandatory respondents and applied that rate as the all-others rate,
calculated pursuant to section 705(c)(5)(A) of the Tariff Act of 1930
(the Act).\4\
---------------------------------------------------------------------------
\4\ See Final Determination, 76 FR at 18523, and accompanying
Issues and Decision at Comment 9.
---------------------------------------------------------------------------
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 respondents' rates in
calculating the all-others rate provided it did so in a reasonable
manner.\5\ Nonetheless, the CIT remanded the all-others rate to the
Department for reconsideration because the Department failed to
articulate a connection between the mandatory respondent rates, based
on AFA, and the all-others companies.\6\
---------------------------------------------------------------------------
\5\ See MacLean-Fogg Co. v. United States, 836 F. Supp. 2d 1367,
1373-1374 (CIT 2012) (MacLean-Fogg I).
\6\ Id., at 1376.
---------------------------------------------------------------------------
In MacLean-Fogg II, the CIT held that the Department's preliminary
all-others rate in the Preliminary Determination \7\ 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.\8\ Thus, in MacLean-Fogg II, the Court
held that it would consider the reasonableness of the preliminary rate
when it reviewed the Department's remand determination.\9\
---------------------------------------------------------------------------
\7\ See Aluminum Extrusions from the People's Republic of China:
Preliminary Affirmative Countervailing Duty Determination, 75 FR
54302 (September 7, 2010) (Preliminary Determination).
\8\ See MacLean-Fogg Co. v. United States, 853 F. Supp. 2d 1253,
1256 (CIT 2012) (MacLean-Fogg II).
\9\ Id.
---------------------------------------------------------------------------
In MacLean-Fogg III, the CIT considered the Department's remand
results.\10\ On remand, the Department did not recalculate the all-
others rate, but rather, provided data indicating that the rate
calculated for the mandatory respondents was logically connected to the
all-others companies because the mandatory respondents comprised a
significant portion of the PRC extruded aluminum producers and
exporters, and thus were representative of the PRC 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 calculated 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 again
to the Department for re-consideration of the issue.\14\
---------------------------------------------------------------------------
\10\ See MacLean-Fogg Co. v. United States, 853 F. Supp. 2d
1336, 1338 (2012) (MacLean-Fogg III).
\11\ Id.
\12\ Id., at 1341.
\13\ Id., at 1342-1343.
\14\ Id., at 1343.
---------------------------------------------------------------------------
In the second results of redetermination pursuant to remand issued
in this litigation, the Department designated the all-others rate as
equal to the preliminary rate it calculated for the mandatory
respondents, i.e., 137.65 percent.\15\ In MacLean-Fogg IV, the CIT
affirmed the Department's remand results, holding that the Department's
selection of this all-others rate was reasonable.\16\
---------------------------------------------------------------------------
\15\ See Final Results of Redetermination Pursuant to Court
Remand, dated September 13, 2012, available at http://enforcement.trade.gov/remands.
\16\ See MacLean Fogg Co., et al. v. United States, 885 F. Supp.
2d 1337 (CIT 2012) (MacLean Fogg IV) at 11-12.
---------------------------------------------------------------------------
The CIT's holdings were appealed to the CAFC. On June 3, 2014, the
CAFC held that section 351.204(d)(3) of the Department's regulations,
which directs the Department to exclude voluntary respondents' rates
from its calculation of the all-others rate, was inconsistent
[[Page 69641]]
with the statute.\17\ Accordingly, the CAFC held that the Department
must include rates calculated for voluntary respondents in determining
an all-others rate.\18\ As the Department had not used the rates
calculated for the voluntary respondents in the underlying
investigation to determine the all-others rate, the CAFC therefore held
that the Department was required to recalculate the all-others rate
using the voluntary respondents' rates. The CIT subsequently remanded
the issue to the Department for reconsideration in light of the CAFC's
holding.\19\
---------------------------------------------------------------------------
\17\ See MacLean-Fogg Co. v. United States (CAFC), 753 F.3d 1237
(Fed. Cir. 2014).
\18\ Id., at 1245.
\19\ See MacLean-Fogg Co. v. United States, 32 F. Supp. 3d 1358
(CIT 2014) (MacLean-Fogg V).
---------------------------------------------------------------------------
On remand, the Department recalculated the all-others rate using a
simple average of the voluntary respondents' rates.\20\ Section
705(c)(5)(A)(i) of the Act provides that, in general, the all-others
rate ``shall be an amount equal to the weighted average countervailable
subsidy rates established for exporters and producers individually
investigated . . . .'' However, the Department explained in the Third
Remand Results that the use of a weighted average would have revealed
the proprietary information of the voluntary respondents to each
other.\21\
---------------------------------------------------------------------------
\20\ See Final Results of Redetermination Pursuant to Court
Remand, dated March 17, 2015 (Third Remand Results) at 6, available
at http://enforcement.trade.gov/remands.
\21\ Id.
---------------------------------------------------------------------------
Petitioners \22\ argued that the Department should have requested
publicly ranged versions of proprietary data on the record from the
voluntary respondents to use in its calculation of the all-others rate,
but in the Third Remand Results, the Department instead calculated the
all-others rate using a simple average of the rates of the two
voluntary respondents, which resulted in a rate of 7.42 percent.\23\
---------------------------------------------------------------------------
\22\ Petitioners are the Aluminum Extrusions Fair Trade
Committee.
\23\ See Third Remand Result.
---------------------------------------------------------------------------
After considering the Third Remand Results, the CIT remanded to the
Department the all-others rate calculation, explaining that the
``statute unequivocally and without exception requires that the
Department base the all-others rate on the weighted average of
individually-investigated non-zero, non-de minimis, non-AFA rates.''
\24\ Furthermore, the CIT emphasized that 19 CFR 351.304(c)(1) requires
all proprietary information ``to be accompanied by public versions `in
sufficient detail to permit a reasonable understanding of the substance
of the information.' '' \25\ The CIT thus directed the Department on
remand to either request the publicly ranged data from the voluntary
respondents, or publicly range the companies' information itself, and
reconsider its determination to use a simple average of their subsidy
rates.\26\
---------------------------------------------------------------------------
\24\ See MacLean-Fogg Remand Order, at 21.
\25\ Id., at 30.
\26\ Id., at 31.
---------------------------------------------------------------------------
The Department requested and received from the voluntary
respondents (i.e., Guang Ya Companies and Zhongya Companies) their
publicly ranged sales value and volume data for exports of subject
merchandise to the United States during the 2009 investigation period.
Using that data, the Department calculated a weighted-average all-
others subsidy rate of 7.37 percent.\27\ In accordance with the
MacLean-Fogg Remand Order, the Department reconsidered its decision to
rely on the simple average of the voluntary respondents' rates in
determining the all-others rate.\28\ Specifically, because the subsidy
rate determined based on the publicly ranged data, rather than the
subsidy rate determined based on a simple average, is closer to the
subsidy rate that would have resulted from weighting the voluntary
respondents' rates based on proprietary sales values, the Department
revised the all-others rate to 7.37 percent in its Final Remand
Results.\29\
---------------------------------------------------------------------------
\27\ See Final Results of Redetermination Pursuant to Court
Remand, dated October 15, 2015 (Final Remand Results), available at
http://enforcement.trade.gov/remands.
\28\ Id.
\29\ Id.
---------------------------------------------------------------------------
On October 23, 2015, in MacLean Fogg Remand Order, the CIT affirmed
the Department's Final Remand Results, upholding that the Department's
all-others rate of 7.37 percent.\30\
---------------------------------------------------------------------------
\30\ See MacLean Fogg Co., et al. v. United States, Slip Op. 15-
119, Court No. 11-00209 (October 23, 2015).
---------------------------------------------------------------------------
Amended Final Determination
Because there is now a final court decision with respect to the
Final Determination, the Department amends its Final Determination. The
following revised net subsidy rate exists:
------------------------------------------------------------------------
Company Subsidy rate
------------------------------------------------------------------------
All-Others........................ 7.37 percent ad valorem.
------------------------------------------------------------------------
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 705(d) and 777(i)(1) of the Act
and consistent with the clarification in Diamond Sawblades.
Dated: November 4, 2015.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2015-28668 Filed 11-9-15; 8:45 am]
BILLING CODE 3510-DS-P