[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