[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]


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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.
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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) 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).

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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\
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    \4\ See Final Determination, 76 FR at 18523, and accompanying 
Issues and Decision 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 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\
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    \5\ See MacLean-Fogg Co. v. United States, 836 F. Supp. 2d 1367, 
1373-1374 (CIT 2012) (MacLean-Fogg I).
    \6\ 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 \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\
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    \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.
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    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\
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    \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.
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    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\
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    \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.
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    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\
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    \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).
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    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\
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    \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.
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    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\
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    \22\ Petitioners are the Aluminum Extrusions Fair Trade 
Committee.
    \23\ See Third Remand Result.
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    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\
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    \24\ See MacLean-Fogg Remand Order, at 21.
    \25\ Id., at 30.
    \26\ Id., at 31.
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    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\
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    \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.
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    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\
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    \30\ See MacLean Fogg Co., et al. v. United States, Slip Op. 15-
119, Court No. 11-00209 (October 23, 2015).
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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 
following revised net subsidy rate exists:

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              Company                           Subsidy rate
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All-Others........................  7.37 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 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