81 FR 223 - Aluminum Extrusions From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Results of Countervailing Duty Administrative Review and Notice of Amended Final Results Pursuant to Court Decision

DEPARTMENT OF COMMERCE
International Trade Administration

Federal Register Volume 81, Issue 2 (January 5, 2016)

On December 14, 2015, the United States Court of International Trade (CIT or the Court) sustained the Department of Commerce's (Department's) results of redetermination,\1\ which recalculated the subsidy rate for Tai Shan City Kam Kiu Aluminium Extrusion Co. Ltd. (Kam Kiu) in the first administrative review of the countervailing duty (CVD) order on aluminum extrusions from the People's Republic of China,\2\ pursuant to the Court's remand order in Kam Kiu.\3\ Consistent with the decision of the United States Court of Appeals for the Federal Circuit (CAFC) in Timken,\4\ as clarified by Diamond Sawblades,\5\ the Department is notifying the public that the final judgment in this case is not in harmony with the Department's Final Results and is amending its Final Results with respect to Kam Kiu. ---------------------------------------------------------------------------

[Federal Register Volume 81, Number 2 (Tuesday, January 5, 2016)]
[Notices]
[Pages 223-224]
From the Federal Register Online  [www.thefederalregister.org]
[FR Doc No: 2015-33164]


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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 Results of Countervailing 
Duty Administrative Review and Notice of Amended Final Results Pursuant 
to Court Decision

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

SUMMARY: On December 14, 2015, the United States Court of International 
Trade (CIT or the Court) sustained the Department of Commerce's 
(Department's) results of redetermination,\1\ which recalculated the 
subsidy rate for Tai Shan City Kam Kiu Aluminium Extrusion Co. Ltd. 
(Kam Kiu) in the first administrative review of the countervailing duty 
(CVD) order on aluminum extrusions from the People's Republic of 
China,\2\ pursuant to the Court's remand order in Kam Kiu.\3\ 
Consistent with the decision of the United States Court of Appeals for 
the Federal Circuit (CAFC) in Timken,\4\ as clarified by Diamond 
Sawblades,\5\ the Department is notifying the public that the final 
judgment in this case is not in harmony with the Department's Final 
Results and is amending its Final Results with respect to Kam Kiu.
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    \1\ See Tai Shan City Kam Kiu Aluminium Extrusion Co., Ltd. v. 
United States, Court No. 14-00016; Slip Op. 15-138 (CIT December 14, 
2015) (Kam Kiu II).
    \2\ See Aluminum Extrusions from the People's Republic of China: 
Final Results of Countervailing Duty Administrative Review; 2010 and 
2011, 79 FR 106 (January 2, 2014) (Final Results), and accompanying 
Issues and Decision Memorandum (Final Results Decision Memorandum).
    \3\ See Tai Shan City Kam Kiu Aluminium Extrusion Co., Ltd. v. 
United States, Court No. 14-00016; Slip Op. 15-21 (CIT March 20, 
2015) (Kam Kiu).
    \4\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 
1990) (Timken).
    \5\ 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 24, 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: 

Background

    In the Final Results, the Department determined that Kam Kiu failed 
to respond to its request for information regarding the company's 
quantity and value of imports of subject merchandise to the United 
States during the review period.\6\ The Department therefore found Kam 
Kiu to be uncooperative and determined that the application of facts 
available with an adverse inference was appropriate pursuant to 
sections 776(a)(2)(A) and (C) and section 776(b) of the Tariff Act of 
1930, as amended (the Act).\7\ The Department assigned to Kam Kiu a 
rate of 121.22 percent. This rate was based on the application of total 
adverse facts available (AFA) which the Department determined was 
corroborated to the extent practicable in accordance with section 
776(c) of the Act.\8\
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    \6\ This first administrative review covered the period 
September 7, 2010, through December 31, 2011.
    \7\ See Final Results Decision Memorandum at ``Use of Facts 
Otherwise Available and Adverse Inferences: Application of Total AFA 
to Non-Cooperative Companies'' and Comment 23.
    \8\ Id.
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    In Kam Kiu, the Court held that the Department must, to the extent 
practicable, corroborate the AFA rate assigned to Kam Kiu by either 
attempting to corroborate Kam Kiu's ability to benefit simultaneously 
from the location-specific subsidy programs included in the AFA rate, 
or adjusting its methodology as applied to Kam Kiu and corroborate its 
findings under the new methodology.\9\ The Court found

[[Page 224]]

that the Department did not explain how the final rate of 121.22 
percent was related to Kam Kiu, and that such a rate appeared punitive 
in light of the lower rates assigned to the mandatory respondents which 
were partially based on AFA.\10\ The Court further held that the 
Department failed to corroborate its finding that Kam Kiu could have 
benefited from the ``Export Rebate for Mechanic, Electronic, and High-
Tech Products'' program, and evidence that the mandatory respondents in 
the review did not use the program detracted from the Department's 
finding.\11\
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    \9\ See Kam Kiu, Slip Op. at 18-20.
    \10\ Id., at 22-23.
    \11\ Id., at 23.
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    On remand, the Court instructed the Department to reconsider its 
corroboration methodology with regard to location-specific subsidy 
programs included in Kam Kiu's rate and the ``Export Rebate for 
Mechanic, Electronic, and High-Tech Products'' program also included in 
Kam Kiu's rate, as well as to explain how the final AFA rate relates to 
Kam Kiu.\12\
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    \12\ Id.
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    In its final results of redetermination pursuant to Kam Kiu,\13\ 
the Department demonstrated that the AFA rate applied to Kam Kiu in the 
Final Results was corroborated to the extent practicable and was 
relevant to Kam Kiu. However, to comply with the Court's remand order, 
under protest, the Department adjusted Kam Kiu's AFA rate to remove all 
location-specific subsidy programs aside from programs that Kam Kiu 
could have used based on its mailing address. The Department further 
explained its corroboration of Kam Kiu's ability to use the ``Export 
Rebate for Mechanic, Electronic, and High-Tech Products'' program to 
the extent practicable, and demonstrated that the revised AFA rate of 
79.80 percent was relevant to Kam Kiu.
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    \13\ See Final Results of Redetermination Pursuant to Court 
Remand--Tai Shan City Kam Kiu Aluminium Extrusion Co., Ltd. v. 
United States, Court No. 14-00016; Slip Op. 15-21 (CIT 2015), signed 
August 13, 2015.
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    On December 14, 2015, the Court sustained the Department's final 
results of redetermination pursuant to remand.\14\
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    \14\ See Kam Kiu II.
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Timken Notice

    In its decision in Timken \15\ as clarified by Diamond Sawblades, 
the CAFC has 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 Court's opinion 
in Kam Kiu II, issued on December 14, 2015, sustaining the Department's 
final results of redetermination, constitutes a final decision of the 
court that is not in harmony with the Department's Final Results. This 
notice is published in fulfillment of the publication requirements of 
Timken. Accordingly, the Department will continue the suspension of 
liquidation of the subject merchandise pending the expiration of the 
period of appeal or, if appealed, pending a final and conclusive court 
decision.
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    \15\ See Timken, 893 F.2d at 341.
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Amended Final Results

    Because there is now a final court decision with respect to the 
Final Results, the Department amends its Final Results. The Department 
finds that the following revised net subsidy rate exists:

------------------------------------------------------------------------
                  Company                           Subsidy rate
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Tai Shan City Kam Kiu Aluminium Extrusion   79.80 percent ad valorem
 Co. Ltd.
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    Since the Final Results, the Department established a new cash 
deposit rate for Kam Kiu.\16\ Therefore, the cash deposit rate for Kam 
Kiu does not need to be updated as a result of these amended final 
results. In the event that the Court's ruling is not appealed, or if 
appealed, upheld by the CAFC, the Department will instruct U.S. Customs 
and Border Protection to liquidate entries of subject merchandise that 
were exported by Kam Kiu, and which were entered, or withdrawn from 
warehouse, for consumption during the period September 7, 2010, through 
December 31, 2011, at the revised rate of 79.80 percent ad valorem.
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    \16\ See Aluminum Extrusions from the People's Republic of 
China: Final Results of Countervailing Duty Administrative Review; 
2012, 79 FR 78788 (December 31, 2014).
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    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 29, 2015.
Paul Piquado,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2015-33164 Filed 1-4-16; 8:45 am]
BILLING CODE 3510-DS-P