81 FR 7749 - Aluminum Extrusions From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Scope Ruling and Notice of Amended Final Scope Ruling Pursuant to Court Decision
DEPARTMENT OF COMMERCE
International Trade Administration Federal Register Volume 81, Issue 30 (February 16, 2016)
International Trade Administration
Federal Register Volume 81, Issue 30 (February 16, 2016)
| Page Range | 7749-7750 | |
| FR Document | 2016-02998 |
[Federal Register Volume 81, Number 30 (Tuesday, February 16, 2016)] [Notices] [Pages 7749-7750] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2016-02998] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE International Trade Administration [A-570-967; C-570-968] Aluminum Extrusions From the People's Republic of China: Notice of Court Decision Not in Harmony With Final Scope Ruling and Notice of Amended Final Scope Ruling Pursuant to Court Decision AGENCY: Enforcement and Compliance, International Trade Administration, Department of Commerce. SUMMARY: On January 20, 2016, the United States Court of International Trade (CIT or Court) sustained the Department of Commerce's (Department) third and final results of redetermination,\1\ in which the Department determined, under protest, that certain refrigerator/ freezer trim kits meet the description of excluded finished goods kits and are therefore not covered by the scope of the Orders,\2\ pursuant to the CIT's remand order in Meridian LLC v. United States, Court No. 13-00018, Slip Op. 15-67 (CIT June 23, 2015) (Meridian IV). --------------------------------------------------------------------------- \1\ See Meridian LLC v. United States, Court No. 13-00018, Slip Op. 16-5 (CIT January 20, 2016) (Meridian V), which sustained the Final Results of Redetermination Pursuant to Court Remand, Meridian Products, LLC v. United States, Court No. 13-00018, Slip. Op. 15-67 (Oct. 29, 2015) (Third Remand). \2\ See Aluminum Extrusions from the People's Republic of China: Antidumping Duty Order, 76 FR 30650 (May 26, 2011) and Aluminum Extrusions from the People's Republic of China: Countervailing Duty Order, 76 FR 30653 (May 26, 2011) (Orders). --------------------------------------------------------------------------- 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 Court's final judgment in this case is not in harmony with the Department's Final Scope Ruling on Refrigerator Trim Kits and is therefore amending its final scope ruling.\5\ --------------------------------------------------------------------------- \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). \5\ See Memorandum to Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, ``Final Scope Ruling on Certain Refrigerator/Freezer Trim Kits,'' (December 17, 2012) (Final Scope Ruling on Refrigerator Trim Kits). --------------------------------------------------------------------------- DATES: Effective date: January 30, 2016. FOR FURTHER INFORMATION CONTACT: James Terpstra, AD/CVD Operations, Office III, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-3965. SUPPLEMENTARY INFORMATION: On December 17, 2012, the Department issued its Final Scope Ruling on Refrigerator Trim Kits in which it determined that the refrigerator/freezer trim kits imported by Meridian LLC (Meridian) did not meet the scope exclusions for ``finished merchandise'' and ``finished goods kits.'' \6\ In particular, the Department held that because the trim kits at issue consisted of pieces of aluminum extrusions plus fasteners and extraneous materials, they did not meet either scope exclusion. Therefore, the Department found the products at issue to be within the scope of the Orders.\7\ --------------------------------------------------------------------------- \6\ The finished goods kit exclusion states: ``A finished goods kits is understood to mean a packaged combination of parts that contains, at the time of importation, all of the necessary parts to fully assemble a final finished good and requires no further finishing or fabrication, such as cutting or punching, and is assembled `as is' into a finished product.'' The scope further states that, ``{a{time} n imported product will not be considered a `finished goods kit'' and therefore excluded from the scope of the investigation merely by including fasteners such as screws, bolts, etc. in the packaging with an aluminum extrusion product.'' \7\ See Final Scope Ruling on Refrigerator Trim Kits at 11. --------------------------------------------------------------------------- As discussed in further detail in the Third Remand, the Court remanded the Final Scope Ruling on Refrigerator Trim Kits three times.\8\ Most recently, in Meridian IV, the Court held that the Department's long-standing recognition of a ``fasteners'' exception to the ``finished goods kit'' exclusion is unreasonable, finding that ``the inclusion of `fasteners' or `extraneous materials' is not determinative when qualifying a kit consistent of multiple parts which otherwise meets the exclusionary requirements, as a `finished goods kit.' '' \9\ Additionally, the Court explained that there is nothing in the scope language that indicates that the parts of a finished goods kit cannot consist entirely of aluminum extrusions.\10\ The Court explained that ``to qualify as a `finished goods kit', a kit must contain every part required to assemble the final finished good, and it logically follows that if a kit is imported with all of the parts necessary to fully assemble the kit into its final finished form, then obviously (and necessarily) some of those `parts' may be fasteners.'' \11\ --------------------------------------------------------------------------- \8\ See Third Remand at 6-10. \9\ See Meridian IV, Slip Op. 15-67 at 12-13. \10\ Id. \11\ Id. at 14 (emphasis omitted). --------------------------------------------------------------------------- In the Third Remand, the Department found, in accordance with the Court's instructions in Meridian IV, under respectful protest, that Meridian's trim kits are excluded from the scope of the Orders as finished goods kits because at the time of importation, the kits contained all the parts necessary to assemble a final finished good--a complete trim kit.\12\ In Meridian V, the Court sustained the Third Remand in its entirety.\13\ --------------------------------------------------------------------------- \12\ See Third Remand at 14. \13\ See Meridian V, Slip Op. 16-5 at 4. --------------------------------------------------------------------------- Timken Notice In its decision in Timken \14\ as clarified by Diamond Sawblades, the CAFC has held that, pursuant to sections 516A(c) and (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 January 20, 2016, judgment in Meridian V sustaining the Department's decision in the Third Remand to find [[Page 7750]] that Meridian's trim kits are excluded from the scope of the Orders constitutes a final decision of that court that is not in harmony with the Department's Final Scope Ruling on Refrigerator Trim Kits. This notice is published in fulfillment of the publication requirements of Timken. Accordingly, the Department will continue the suspension of liquidation of the trim kits at issue pending expiration of the period of appeal or, if appealed, pending a final and conclusive court decision. --------------------------------------------------------------------------- \14\ See Timken, 893 F.2d at 341. --------------------------------------------------------------------------- In accordance with the Courts instructions in Meridian IV, we determine that Meridian's trim kits are excluded from the scope of the Orders as finished goods kits. Amended Final Determination Because there is now a final court decision with respect to the Final Scope Ruling on Refrigerator Trim Kits, the Department amends its final scope ruling. The Department finds that the scope of the Orders does not cover the products addressed in the Final Scope Ruling on Refrigerator Trim Kits. The Department will instruct U.S. Customs and Border Protection (CBP) that the cash deposit rate will be zero percent for the refrigerator/freezer trim kits imported by Meridian. In the event that the CIT's ruling is not appealed, or if appealed, upheld by the CAFC, the Department will instruct CBP to liquidate entries of Meridian's Refrigerator Trim Kits without regard to antidumping and/or countervailing duties, and to lift suspension of liquidation of such entries. This notice is issued and published in accordance with section 516A(c)(1) of the Act. Dated: February 8, 2016. Paul Piquado, Assistant Secretary for Enforcement and Compliance. [FR Doc. 2016-02998 Filed 2-12-16; 8:45 am] BILLING CODE 3510-DS-P
![Federal Register / Vol. 81, No. 30 / Tuesday, February 16, 2016 / Notices 7749
constituting the sides of the openings and Department determined, under protest, did not meet either scope exclusion.
integral junctions where the strands intersect. that certain refrigerator/freezer trim kits Therefore, the Department found the
The scope includes products in which four- meet the description of excluded products at issue to be within the scope
sided figures predominate whether or not finished goods kits and are therefore not of the Orders.7
they also contain additional strands As discussed in further detail in the
intersecting the four-sided figures and
covered by the scope of the Orders,2
whether or not the inside corners of the four- pursuant to the CIT’s remand order in Third Remand, the Court remanded the
sided figures are rounded off or not sharp Meridian LLC v. United States, Court Final Scope Ruling on Refrigerator Trim
angles. As used herein, the term ‘‘integral’’ No. 13–00018, Slip Op. 15–67 (CIT June Kits three times.8 Most recently, in
refers to strands and junctions that are 23, 2015) (Meridian IV). Meridian IV, the Court held that the
homogenous with each other. The products Consistent with the decision of the Department’s long-standing recognition
covered have a tensile strength of greater United States Court of Appeals for the of a ‘‘fasteners’’ exception to the
than 5 kilonewtons per meter (‘‘kN/m’’) Federal Circuit (CAFC) in Timken,3 as ‘‘finished goods kit’’ exclusion is
according to American Society for Testing clarified by Diamond Sawblades,4 the unreasonable, finding that ‘‘the
and Materials (‘‘ASTM’’) Standard Test Department is notifying the public that inclusion of ‘fasteners’ or ‘extraneous
Method D6637/D6637M in any direction and the Court’s final judgment in this case materials’ is not determinative when
average overall flexural stiffness of more than
100,000 milligram-centimeter according to
is not in harmony with the Department’s qualifying a kit consistent of multiple
the ASTM D7748/D7748M Standard Test Final Scope Ruling on Refrigerator Trim parts which otherwise meets the
Method for Flexural Rigidity of Geogrids, Kits and is therefore amending its final exclusionary requirements, as a
Geotextiles and Related Products, or other scope ruling.5 ‘finished goods kit.’ ’’ 9 Additionally, the
equivalent test method standards. DATES: Effective date: January 30, 2016. Court explained that there is nothing in
Subject merchandise includes material FOR FURTHER INFORMATION CONTACT: the scope language that indicates that
matching the above description that has been the parts of a finished goods kit cannot
James Terpstra, AD/CVD Operations,
finished, packaged, or otherwise further consist entirely of aluminum
processed in a third country, including by Office III, Enforcement and Compliance,
U.S. Department of Commerce, 14th extrusions.10 The Court explained that
trimming, slitting, coating, cutting, punching ‘‘to qualify as a ‘finished goods kit’, a kit
holes, stretching, attaching to woven or non- Street and Constitution Avenue NW.,
woven fabric or sheet material, or any other Washington, DC 20230; telephone: 202– must contain every part required to
finishing, packaging, or other further 482–3965. assemble the final finished good, and it
processing that would not otherwise remove logically follows that if a kit is imported
SUPPLEMENTARY INFORMATION: On
the merchandise from the scope of the with all of the parts necessary to fully
December 17, 2012, the Department
investigation if performed in the country of assemble the kit into its final finished
issued its Final Scope Ruling on
manufacture of the biaxial integral geogrid. form, then obviously (and necessarily)
The products subject to the scope are Refrigerator Trim Kits in which it
some of those ‘parts’ may be
currently classified in the Harmonized Tariff determined that the refrigerator/freezer
fasteners.’’ 11
Schedule of the United States (‘‘HTSUS’’) trim kits imported by Meridian LLC In the Third Remand, the Department
under the following subheading: (Meridian) did not meet the scope found, in accordance with the Court’s
3926.90.9995. Subject merchandise may also exclusions for ‘‘finished merchandise’’ instructions in Meridian IV, under
enter under subheadings 3920.20.0050 and and ‘‘finished goods kits.’’ 6 In
3925.90.0000. The HTSUS subheadings set
respectful protest, that Meridian’s trim
particular, the Department held that kits are excluded from the scope of the
forth above are provided for convenience and because the trim kits at issue consisted
U.S. Customs purposes only. The written Orders as finished goods kits because at
of pieces of aluminum extrusions plus the time of importation, the kits
description of the scope is dispositive.
fasteners and extraneous materials, they contained all the parts necessary to
[FR Doc. 2016–03071 Filed 2–12–16; 8:45 am]
assemble a final finished good—a
BILLING CODE 3510–DS–P Redetermination Pursuant to Court Remand, complete trim kit.12 In Meridian V, the
Meridian Products, LLC v. United States, Court No.
13–00018, Slip. Op. 15–67 (Oct. 29, 2015) (Third Court sustained the Third Remand in its
DEPARTMENT OF COMMERCE Remand). entirety.13
2 See Aluminum Extrusions from the People’s
Republic of China: Antidumping Duty Order, 76 FR Timken Notice
International Trade Administration
30650 (May 26, 2011) and Aluminum Extrusions In its decision in Timken 14 as
[A–570–967; C–570–968] from the People’s Republic of China: Countervailing
Duty Order, 76 FR 30653 (May 26, 2011) (Orders).
clarified by Diamond Sawblades, the
3 See Timken Co. v. United States, 893 F.2d 337 CAFC has held that, pursuant to
Aluminum Extrusions From the (Fed. Cir. 1990) (Timken). sections 516A(c) and (e) of the Tariff Act
People’s Republic of China: Notice of 4 See Diamond Sawblades Mfrs. Coalition v. of 1930, as amended (the Act), the
Court Decision Not in Harmony With United States, 626 F.3d 1374 (Fed. Cir. 2010) Department must publish a notice of a
Final Scope Ruling and Notice of (Diamond Sawblades).
court decision that is not ‘‘in harmony’’
5 See Memorandum to Christian Marsh, Deputy
Amended Final Scope Ruling Pursuant with a Department determination and
Assistant Secretary for Antidumping and
to Court Decision Countervailing Duty Operations, ‘‘Final Scope must suspend liquidation of entries
AGENCY: Enforcement and Compliance, Ruling on Certain Refrigerator/Freezer Trim Kits,’’ pending a ‘‘conclusive’’ court decision.
(December 17, 2012) (Final Scope Ruling on The CIT’s January 20, 2016, judgment in
International Trade Administration, Refrigerator Trim Kits).
Department of Commerce. 6 The finished goods kit exclusion states: ‘‘A
Meridian V sustaining the Department’s
finished goods kits is understood to mean a decision in the Third Remand to find
SUMMARY: On January 20, 2016, the
packaged combination of parts that contains, at the
United States Court of International time of importation, all of the necessary parts to
mstockstill on DSK4VPTVN1PROD with NOTICES
7 See Final Scope Ruling on Refrigerator Trim
Trade (CIT or Court) sustained the fully assemble a final finished good and requires no Kits at 11.
Department of Commerce’s further finishing or fabrication, such as cutting or 8 See Third Remand at 6–10.
(Department) third and final results of punching, and is assembled ‘as is’ into a finished 9 See Meridian IV, Slip Op. 15–67 at 12–13.
product.’’ The scope further states that, ‘‘{a}n
redetermination,1 in which the imported product will not be considered a ‘finished
10 Id.
11 Id. at 14 (emphasis omitted).
goods kit’’ and therefore excluded from the scope
1 See Meridian LLC v. United States, Court No. 12 See Third Remand at 14.
of the investigation merely by including fasteners
13 See Meridian V, Slip Op. 16–5 at 4.
13–00018, Slip Op. 16–5 (CIT January 20, 2016) such as screws, bolts, etc. in the packaging with an
(Meridian V), which sustained the Final Results of aluminum extrusion product.’’ 14 See Timken, 893 F.2d at 341.
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![7750 Federal Register / Vol. 81, No. 30 / Tuesday, February 16, 2016 / Notices
that Meridian’s trim kits are excluded polyethylene terephthalate film, sheet, extended by four business days. The
from the scope of the Orders constitutes and strip (PET Film) from India, we find revised deadline for the final results of
a final decision of that court that is not that Jindal Poly Films Limited (Jindal) this review is now February 8, 2016.3
in harmony with the Department’s Final and the four-non selected respondents
Scope of the Order
Scope Ruling on Refrigerator Trim Kits. made sales of subject merchandise at
This notice is published in fulfillment less than normal value; we also find that The products covered by the AD order
of the publication requirements of SRF Limited (SRF) did not make sales are all gauges of raw, pretreated, or
Timken. Accordingly, the Department of subject merchandise at less than primed PET Film, whether extruded or
will continue the suspension of normal value. The period of review is coextruded. Excluded are metallized
liquidation of the trim kits at issue July 1, 2013, through June 30, 2014. films and other finished films that have
pending expiration of the period of DATES: Effective date: February 16, 2016. had at least one of their surfaces
appeal or, if appealed, pending a final FOR FURTHER INFORMATION CONTACT: modified by the application of a
and conclusive court decision. Myrna Lobo or Alexander Cipolla, AD/ performance-enhancing resinous or
In accordance with the Courts CVD Operations, Office VII, inorganic layer of more than 0.00001
instructions in Meridian IV, we Enforcement and Compliance, inches thick. Imports of PET Film are
determine that Meridian’s trim kits are International Trade Administration, currently classifiable in the Harmonized
excluded from the scope of the Orders U.S. Department of Commerce, 14th Tariff Schedule of the United States
as finished goods kits. Street and Constitution Avenue NW., (HTSUS) under item number
Amended Final Determination Washington, DC 20230; telephone: (202) 3920.62.00.90. HTSUS subheadings are
482–2371 and (202) 482–4956, provided for convenience and customs
Because there is now a final court respectively. purposes. The written description of the
decision with respect to the Final Scope scope of the AD order is dispositive.
Ruling on Refrigerator Trim Kits, the SUPPLEMENTARY INFORMATION:
Department amends its final scope Analysis of Comments Received
Background
ruling. The Department finds that the All issues raised in the case briefs are
On August 6, 2015, the Department of
scope of the Orders does not cover the addressed in the Issues and Decision
Commerce (the Department) published
products addressed in the Final Scope Memorandum. A list of issues raised
the Preliminary Results.1 For a history
Ruling on Refrigerator Trim Kits. The and to which we respond in the Issues
of events that have occurred since the
Department will instruct U.S. Customs and Decision Memorandum is attached
Preliminary Results, see the Issues and
and Border Protection (CBP) that the to this notice as an Appendix.
Decision Memorandum.2 The Issues and
cash deposit rate will be zero percent for
Decision Memorandum is a public Changes Since the Preliminary Results
the refrigerator/freezer trim kits
document and is on file electronically
imported by Meridian. In the event that Based on a review of the record and
via Enforcement and Compliance’s
the CIT’s ruling is not appealed, or if comments received from interested
Antidumping and Countervailing Duty
appealed, upheld by the CAFC, the parties regarding our Preliminary
Centralized Electronic Service System
Department will instruct CBP to Results, we have made changes to SRF’s
(ACCESS). ACCESS is available to
liquidate entries of Meridian’s and Jindal’s calculations.4 In addition,
registered users at http://
Refrigerator Trim Kits without regard to we have adjusted Jindal’s reported U.S.
access.trade.gov, and is available to all
antidumping and/or countervailing prices to account for changes in its
parties in the Central Records Unit,
duties, and to lift suspension of export subsidies in the final results of
Room B8024 of the main Department of
liquidation of such entries. the companion countervailing duty
Commerce building. In addition, a
This notice is issued and published in administrative review.5
complete version of the Issues and
accordance with section 516A(c)(1) of Additionally, for companies not
Decision Memorandum can be accessed
the Act. selected for individual review, we have
directly on the Internet at http://
Dated: February 8, 2016. trade.gov/login.aspx. The signed Issues assigned the rate calculated for Jindal in
Paul Piquado, and Decision Memorandum and the the final results of this review, in
Assistant Secretary for Enforcement and electronic versions of the Issues and accordance with section 735(c)(5) of the
Compliance. Decision Memorandum are identical in Act.
[FR Doc. 2016–02998 Filed 2–12–16; 8:45 am] content.
BILLING CODE 3510–DS–P As explained in the memorandum 3 See Memorandum to the Record from Ron
from the Acting Assistant Secretary for Lorentzen, Acting A/S for Enforcement &
Compliance, regarding ‘‘Tolling of Administrative
Enforcement & Compliance, the Deadlines as a Result of the Government Closure
DEPARTMENT OF COMMERCE Department has exercised its discretion During Snowstorm Jonas,’’ dated January 27, 2016.
to toll all administrative deadlines due 4 See Memoranda to Thomas Gilgunn, Program
International Trade Administration to the recent closure of the Federal Manager ‘‘Analysis Memorandum for the Final
Government. All deadlines in this Results of the Antidumping Duty Administrative
[A–533–824] Review of Polyethylene Terephthalate Film, Sheet,
segment of the proceeding have been and Strip from India: Jindal Poly Films Limited,
Polyethylene Terephthalate Film, and ‘‘Analysis Memorandum for the Final Results
Sheet, and Strip From India: Final 1 See Polyethylene Terephthalate Film, Sheet, and of the Antidumping Duty Administrative Review of
Results of Antidumping Duty Strip From India: Preliminary Results and Partial Polyethylene Terephthalate Film, Sheet, and Strip
Rescission of Antidumping Duty Administrative from India: SRF Limited,’’ both dated concurrently
mstockstill on DSK4VPTVN1PROD with NOTICES
Administrative Review; 2013–2014 Review; 2013–2014, 80 FR 46957 (August 6, 2015) with these final results.
(Preliminary Results). 5 See Polyethylene Terephthalate Film, Sheet, and
AGENCY: Enforcement and Compliance, 2 See Department Memorandum, ‘‘Issues and Strip From India: Preliminary Results and Partial
International Trade Administration, Decision Memorandum for the Final Results of Rescission of Countervailing Duty Administrative
Department of Commerce. Antidumping Duty Administrative Review: Review; 2013, 80 FR 46956 (August 3, 2015). See
Polyethylene Terephthalate Film From India; 2013– also Polyethylene Terephthalate Film, Sheet, and
SUMMARY: For the final results of the
2014 Administrative Review’’ (Issues and Decision Strip from India: Final Results of Countervailing
administrative review of the Memorandum), dated concurrently with, and Duty Administrative Review; 2013 (signed February
antidumping duty (AD) order on hereby adopted by, this notice. 2, 2016).
VerDate Sep<11>2014 22:15 Feb 12, 2016 Jkt 238001 PO 00000 Frm 00009 Fmt 4703 Sfmt 4703 E:\FR\FM\16FEN1.SGM 16FEN1](https://thefederalregister.org/doc/81_FR_7779/page/2.svg)
Document Created: 2016-02-13 03:13:08
Document Modified: 2016-02-13 03:13:08
| Category | Regulatory Information | |
| Collection | Federal Register | |
| sudoc Class | AE 2.7: GS 4.107: AE 2.106: | |
| Publisher | Office of the Federal Register, National Archives and Records Administration | |
| Section | Notices | |
| Contact | James Terpstra, AD/CVD Operations, Office III, Enforcement and Compliance, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230; telephone: 202-482-3965. | |
| FR Citation | 81 FR 7749 |
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