82 FR 32788 - Aluminum Extrusions From the People's Republic of China: Notice of Second Amended Final Scope Ruling Pursuant to Court Decision
DEPARTMENT OF COMMERCE
International Trade Administration Federal Register Volume 82, Issue 136 (July 18, 2017)
International Trade Administration
Federal Register Volume 82, Issue 136 (July 18, 2017)
| Page Range | 32788-32789 | |
| FR Document | 2017-15040 |
[Federal Register Volume 82, Number 136 (Tuesday, July 18, 2017)] [Notices] [Pages 32788-32789] From the Federal Register Online [www.thefederalregister.org] [FR Doc No: 2017-15040] ----------------------------------------------------------------------- DEPARTMENT OF COMMERCE International Trade Administration [A-570-967; C-570-968] Aluminum Extrusions From the People's Republic of China: Notice of Second Amended Final Scope Ruling Pursuant to Court Decision AGENCY: Enforcement and Compliance, International Trade Administration, Department of Commerce. SUMMARY: On March 28, 2017, the Court of Appeals for the Federal Circuit (Federal Circuit) reversed the Court of International Trade (CIT) and sustained the Department of Commerce's (Department) original scope ruling in which it found that Meridian Products LLC's (Meridian) refrigerator/freezer trim kits did not satisfy the finished goods kit exclusion under the antidumping (AD) and countervailing duty (CVD) orders covering aluminum extrusions from the People's Republic of China (PRC). The Department is therefore issuing a second amended final scope ruling. DATES: Effective July 18, 2017. FOR FURTHER INFORMATION CONTACT: James Terpstra, AD/CVD Operations, Office III, Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: 202-482- 3965. SUPPLEMENTARY INFORMATION: Background 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 did not meet the scope exclusions for ``finished merchandise'' and ``finished goods kits.'' \1\ 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.\2\ --------------------------------------------------------------------------- \1\ 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.'' \2\ See Memorandum, ``Final Scope Ruling on Certain Refrigerator/Freezer Trim Kits, dated December 17, 2012 (Final Scope Ruling on Refrigerator Trim Kits) at 11. See also 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). --------------------------------------------------------------------------- As discussed in detail in the Third Remand Results,\3\ the CIT remanded the Final Scope Ruling on Refrigerator Trim Kits three times.\4\ In Meridian IV,\5\ the CIT held that the Department's long- standing recognition of a ``fasteners'' exception to the ``finished goods kit'' exclusion in the scope was 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.' '' \6\ Additionally, the CIT 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.\7\ The CIT 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.'' \8\ --------------------------------------------------------------------------- \3\ See 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 Results). \4\ See Third Remand Results at 6-10. \5\ See Meridian Products, LLC v. United States, Court No. 13- 00018, Slip. Op. 15-67 (Oct. 29, 2015) (Meridian IV). \6\ See Meridian IV, Slip Op. 15-67 at 12-13. \7\ Id. \8\ Id., at 14 (emphasis omitted). --------------------------------------------------------------------------- [[Page 32789]] In the Third Remand Results, 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.\9\ In Meridian V,\10\ the Court sustained the Third Remand Results in its entirety.\11\ Subsequently, the Department published a First Amended Final Scope Ruling in which the Department found that Meridian's refrigerator/freezer trim kits are not covered by the scope of the Orders.\12\ Consistent with the decision of the Federal Circuit in Timken,\13\ as clarified by Diamond Sawblades,\14\ the First Amended Final Scope Ruling additionally provided notice to the public of the CIT's final judgment in Meridian V not in harmony with the Department's Final Scope Ruling on Refrigerator Trim Kits and of the continuation of the suspension of liquidation of the trim kits at issue pending a final and conclusive court decision, if appealed.\15\ --------------------------------------------------------------------------- \9\ See Third Remand Results at 14. \10\ See Meridian LLC v. United States, Court No. 13-00018, Slip Op. 16-5 (CIT January 20, 2016) (Meridian V). \11\ See Meridian V, Slip Op. 16-5 at 4. \12\ See 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, 81 FR 7749 (February 16, 2016) (First Amended Final Scope Ruling). \13\ See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) (Timken). \14\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades). \15\ See First Amended Final Scope Ruling, 81 FR at 7749-7750. --------------------------------------------------------------------------- On March 28, 2017, the Federal Circuit reversed the CIT and sustained the Department's original scope ruling in which it found that Meridian's refrigerator/freezer trim kits did not satisfy the finished goods kit exclusion under the Orders. In Meridian VI,\16\ the Federal Circuit found that the plain language of the exclusion language, when appropriately read as a whole, supported the Department's interpretation. The Federal Circuit further held that the Department's prior scope rulings, one of the 19 CFR 351.225(k)(1) sources, further supported the Department's interpretation. Finally, the Federal Circuit looked to other aspects of the scope language, including the similar finished merchandise exclusion, which supported the division of products into two categories: (1) Products which contained only aluminum extrusions and fasteners (not excluded); and (C2) products which incorporated non-aluminum extrusion components beyond fasteners (excluded).\17\ --------------------------------------------------------------------------- \16\ See Meridian Prods., LLC v. United States, 851 F.3d 1375 (Fed. Cir. Mar. 28, 2017) (Meridian VI). \17\ Id., at 1383-85. --------------------------------------------------------------------------- Second Amended Final Scope Ruling Because there is now a final and conclusive court decision which reinstates the Department's original scope ruling, we are amending the First Amended Final Scope Ruling with respect to Meridian's refrigerator/freezer trim kits. Based on the Federal Circuit's holding in Meridian VI, Meridian's refrigerator/freezer trim kits are subject to the Orders. Accordingly, the Department will instruct Customs and Border Protection to continue to suspend liquidation of Meridian's refrigerator/freezer trim kits until appropriate liquidation instructions are sent. As of the date of publication of this notice in the Federal Register, the cash deposit rate for entries of Meridian's refrigerator/freezer trim kits entries will be the applicable cash deposit rate of the exporters of the merchandise from the PRC to the United States. This notice is issued and published in accordance with sections 516A(c)(1) and (e)(1) of the Tariff Act of 1930, as amended. Dated: July 11, 2017. Gary Taverman, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, performing the non-exclusive functions and duties of the Assistant Secretary for Enforcement and Compliance. [FR Doc. 2017-15040 Filed 7-17-17; 8:45 am] BILLING CODE 3510-DS-P
![32788 Federal Register / Vol. 82, No. 136 / Tuesday, July 18, 2017 / Notices
4. Committee members are selected in Organizations also may self-nominate. A refrigerator/freezer trim kits imported by
accordance with applicable Department summary of the organization’s Meridian did not meet the scope
of Commerce guidelines. The Census qualifications and the experience that exclusions for ‘‘finished merchandise’’
Scientific Advisory Committee aims to qualifies it for membership should be and ‘‘finished goods kits.’’ 1 In
have balanced representation, included in the nomination letter. particular, the Department held that,
considering such factors as geography, Nominated organizations must be able because the trim kits at issue consisted
technical, and scientific expertise. The to actively participate in the tasks of the of pieces of aluminum extrusions plus
Advisory Committee will include Census Scientific Advisory Committee, fasteners and extraneous materials, they
members from diverse backgrounds, including, but not limited to, regular did not meet either scope exclusion.
including academia and private meeting attendance, review of materials, Therefore, the Department found the
enterprise, which are further diversified and participation in conference calls, products at issue to be within the scope
by business type or industry, geography, webinars, working groups, and special of the Orders.2
and other factors. committee activities. As discussed in detail in the Third
5. No employee of the federal 5. The Department of Commerce is Remand Results,3 the CIT remanded the
government can serve as a member of committed to equal opportunity in the Final Scope Ruling on Refrigerator Trim
the Census Scientific Advisory workplace and seeks diverse Advisory Kits three times.4 In Meridian IV,5 the
Committee. Committee membership. CIT held that the Department’s long-
standing recognition of a ‘‘fasteners’’
Miscellaneous Dated: July 11, 2017.
exception to the ‘‘finished goods kit’’
1. Members of the Census Scientific Ron S. Jarmin,
exclusion in the scope was
Advisory Committee serve without Performing the Non-Exclusive Functions and unreasonable, finding that ‘‘the
compensation, but receive Duties of the Director, Bureau of the Census. inclusion of ‘fasteners’ or ‘extraneous
reimbursement for committee-related [FR Doc. 2017–15014 Filed 7–17–17; 8:45 am] materials’ is not determinative when
travel and lodging expenses. BILLING CODE 3510–07–P qualifying a kit consistent of multiple
2. The Census Scientific Advisory parts which otherwise meets the
Committee meets once or twice a year, exclusionary requirements, as a
budget permitting. Additional meetings DEPARTMENT OF COMMERCE ‘finished goods kit.’ ’’ 6 Additionally, the
may be held as deemed necessary by the CIT explained that there is nothing in
International Trade Administration
Census Director or Designated Federal the scope language that indicates that
Official. All Advisory Committee [A–570–967; C–570–968] the parts of a finished goods kit cannot
meetings are open to the public in consist entirely of aluminum
accordance with the Federal Advisory Aluminum Extrusions From the extrusions.7 The CIT explained that ‘‘to
Committee Act. People’s Republic of China: Notice of qualify as a ‘finished goods kit’, a kit
Second Amended Final Scope Ruling must contain every part required to
Nomination Information Pursuant to Court Decision assemble the final finished good, and it
1. Nominations are requested as logically follows that if a kit is imported
AGENCY: Enforcement and Compliance,
described above. with all of the parts necessary to fully
2. Nominees must have scientific and International Trade Administration,
Department of Commerce. assemble the kit into its final finished
technical expertise in such areas as form, then obviously (and necessarily)
SUMMARY: On March 28, 2017, the Court
demography, economics, geography, some of those ‘parts’ may be
of Appeals for the Federal Circuit
psychology, statistics, survey fasteners.’’ 8
(Federal Circuit) reversed the Court of
methodology, social and behavioral
International Trade (CIT) and sustained
sciences, Information Technology, 1 The finished goods kit exclusion states: ‘‘A
the Department of Commerce’s
computing, or marketing. Such finished goods kits is understood to mean a
(Department) original scope ruling in packaged combination of parts that contains, at the
knowledge and expertise are needed to
which it found that Meridian Products time of importation, all of the necessary parts to
provide advice and recommendations to fully assemble a final finished good and requires no
LLC’s (Meridian) refrigerator/freezer
the Director of the Census Bureau on the further finishing or fabrication, such as cutting or
trim kits did not satisfy the finished punching, and is assembled ‘as is’ into a finished
trends, uses, and application of
goods kit exclusion under the product.’’ The scope further states that, ‘‘{a}n
scientific innovations and developments imported product will not be considered a ‘finished
antidumping (AD) and countervailing
in relation to the full range of Census goods kit’’ and therefore excluded from the scope
duty (CVD) orders covering aluminum
Bureau programs and activities. of the investigation merely by including fasteners
3. Individuals, groups, and/or extrusions from the People’s Republic of such as screws, bolts, etc. in the packaging with an
organizations may submit nominations China (PRC). The Department is aluminum extrusion product.’’
2 See Memorandum, ‘‘Final Scope Ruling on
on behalf of individual candidates. A therefore issuing a second amended
Certain Refrigerator/Freezer Trim Kits, dated
summary of the candidate’s final scope ruling. December 17, 2012 (Final Scope Ruling on
qualifications (resumé or curriculum DATES: Effective July 18, 2017. Refrigerator Trim Kits) at 11. See also Aluminum
Extrusions from the People’s Republic of China:
vitae) must be included along with the FOR FURTHER INFORMATION CONTACT:
Antidumping Duty Order, 76 FR 30650 (May 26,
nomination letter. Nominees must be James Terpstra, AD/CVD Operations, 2011) and Aluminum Extrusions from the People’s
able to actively participate in the tasks Office III, Enforcement and Compliance, Republic of China: Countervailing Duty Order, 76
of the Census Scientific Advisory U.S. Department of Commerce, 1401 FR 30653 (May 26, 2011) (Orders).
3 See Final Results of Redetermination Pursuant
Committee, including, but not limited Constitution Avenue NW., Washington, to Court Remand, Meridian Products, LLC v. United
DC 20230; telephone: 202–482–3965.
sradovich on DSK3GMQ082PROD with NOTICES
to, regular meeting attendance, States, Court No. 13–00018, Slip. Op. 15–67 (Oct.
committee meeting discussant SUPPLEMENTARY INFORMATION: 29, 2015) (Third Remand Results).
4 See Third Remand Results at 6–10.
responsibilities, review of materials, as
well as participation in conference calls, Background 5 See Meridian Products, LLC v. United States,
Court No. 13–00018, Slip. Op. 15–67 (Oct. 29, 2015)
webinars, working groups, and/or On December 17, 2012, the (Meridian IV).
special committee activities. Department issued its Final Scope 6 See Meridian IV, Slip Op. 15–67 at 12–13.
4. Nominations of organizations may Ruling on Refrigerator Trim Kits in 7 Id.
come from individuals or organizations. which it determined that the 8 Id., at 14 (emphasis omitted).
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![Federal Register / Vol. 82, No. 136 / Tuesday, July 18, 2017 / Notices 32789
In the Third Remand Results, the Products which contained only DATES: Written, telefaxed, or email
Department found, in accordance with aluminum extrusions and fasteners (not comments must be received on or before
the Court’s instructions in Meridian IV, excluded); and (C2) products which August 17, 2017.
under respectful protest, that Meridian’s incorporated non-aluminum extrusion ADDRESSES: The application and related
trim kits are excluded from the scope of components beyond fasteners documents are available for review by
the Orders as finished goods kits (excluded).17 selecting ‘‘Records Open for Public
because at the time of importation, the Comment’’ from the ‘‘Features’’ box on
kits contained all the parts necessary to Second Amended Final Scope Ruling
the Applications and Permits for
assemble a final finished good—a Because there is now a final and Protected Species (APPS) home page,
complete trim kit.9 In Meridian V,10 the conclusive court decision which https://apps.nmfs.noaa.gov, and then
Court sustained the Third Remand reinstates the Department’s original selecting File No. 21018 from the list of
Results in its entirety.11 Subsequently, scope ruling, we are amending the First available applications.
the Department published a First Amended Final Scope Ruling with These documents are available upon
Amended Final Scope Ruling in which respect to Meridian’s refrigerator/freezer written request or by appointment in the
the Department found that Meridian’s trim kits. Based on the Federal Circuit’s Permits and Conservation Division,
refrigerator/freezer trim kits are not holding in Meridian VI, Meridian’s Office of Protected Resources, NMFS,
covered by the scope of the Orders.12 refrigerator/freezer trim kits are subject 1315 East-West Highway, Room 13705,
Consistent with the decision of the to the Orders. Silver Spring, MD 20910; phone (301)
Federal Circuit in Timken,13 as clarified Accordingly, the Department will 427–8401; fax (301) 713–0376.
by Diamond Sawblades,14 the First instruct Customs and Border Protection Written comments on this application
Amended Final Scope Ruling to continue to suspend liquidation of should be submitted to the Chief,
additionally provided notice to the Meridian’s refrigerator/freezer trim kits Permits and Conservation Division, at
public of the CIT’s final judgment in until appropriate liquidation the address listed above. Comments may
Meridian V not in harmony with the instructions are sent. As of the date of also be submitted by facsimile to (301)
Department’s Final Scope Ruling on publication of this notice in the Federal 713–0376, or by email to
Refrigerator Trim Kits and of the Register, the cash deposit rate for NMFS.Pr1Comments@noaa.gov. Please
continuation of the suspension of entries of Meridian’s refrigerator/freezer include the File No. in the subject line
liquidation of the trim kits at issue trim kits entries will be the applicable of the email comment.
pending a final and conclusive court cash deposit rate of the exporters of the Those individuals requesting a public
decision, if appealed.15 merchandise from the PRC to the United hearing should submit a written request
On March 28, 2017, the Federal States. to the Chief, Permits and Conservation
Circuit reversed the CIT and sustained This notice is issued and published in Division at the address listed above. The
the Department’s original scope ruling accordance with sections 516A(c)(1) and request should set forth the specific
in which it found that Meridian’s (e)(1) of the Tariff Act of 1930, as reasons why a hearing on this
refrigerator/freezer trim kits did not amended. application would be appropriate.
satisfy the finished goods kit exclusion FOR FURTHER INFORMATION CONTACT: Sara
under the Orders. In Meridian VI,16 the Dated: July 11, 2017.
Gary Taverman, Young or Carrie Hubard, (301) 427–
Federal Circuit found that the plain 8401.
language of the exclusion language, Deputy Assistant Secretary for Antidumping
when appropriately read as a whole, and Countervailing Duty Operations, SUPPLEMENTARY INFORMATION: The
supported the Department’s performing the non-exclusive functions and subject permit is requested under the
duties of the Assistant Secretary for authority of the Marine Mammal
interpretation. The Federal Circuit
Enforcement and Compliance. Protection Act of 1972, as amended
further held that the Department’s prior
[FR Doc. 2017–15040 Filed 7–17–17; 8:45 am] (MMPA; 16 U.S.C. 1361 et seq.) and the
scope rulings, one of the 19 CFR
351.225(k)(1) sources, further supported BILLING CODE 3510–DS–P regulations governing the taking and
the Department’s interpretation. Finally, importing of marine mammals (50 CFR
the Federal Circuit looked to other part 216).
aspects of the scope language, including DEPARTMENT OF COMMERCE The applicant requests a five-year
the similar finished merchandise permit to study three species of
National Oceanic and Atmospheric pinnipeds in California. The objectives
exclusion, which supported the division Administration
of products into two categories: (1) of the research are to continue long-term
research on the comparative ecology,
RIN 0648–XF536
9 See Third Remand Results at 14. demography, community ecology,
10 See Meridian LLC v. United States, Court No. Marine Mammals; File No. 21018 foraging patterns, pathology and
13–00018, Slip Op. 16–5 (CIT January 20, 2016) phenology of California pinnipeds and
(Meridian V). AGENCY: National Marine Fisheries
11 See Meridian V, Slip Op. 16–5 at 4.
to further characterize the resource and
12 See Aluminum Extrusions From the People’s
Service (NMFS), National Oceanic and habitats used by each species, including
Republic of China: Notice of Court Decision Not in Atmospheric Administration (NOAA), patterns of spatial and temporal
Harmony With Final Scope Ruling and Notice of Commerce. similarities and differences California
Amended Final Scope Ruling Pursuant to Court sea lions (Zalophus californianus),
ACTION: Notice; receipt of application.
Decision, 81 FR 7749 (February 16, 2016) (First
Amended Final Scope Ruling).
northern elephant seals (Mirounga
SUMMARY: Notice is hereby given that angustirostris), and harbor seals (Phoca
sradovich on DSK3GMQ082PROD with NOTICES
13 See Timken Co. v. United States, 893 F.2d 337
(Fed. Cir. 1990) (Timken). Brent Stewart, Ph.D., Hubbs-SeaWorld vitulina) would be captured and
14 See Diamond Sawblades Mfrs. Coalition v. Research Institute, 2595 Ingraham sampled at several sites including San
United States, 626 F.3d 1374 (Fed. Cir. 2010) Street, San Diego, CA 92109 has applied Nicolas Island, San Miguel Island, Santa
(Diamond Sawblades). in due form for a permit to conduct
15 See First Amended Final Scope Ruling, 81 FR
Rosa Island, Santa Cruz Island, Piedras
at 7749–7750.
research on pinnipeds in California. Blancas, Cape San Martin, and Gorda.
16 See Meridian Prods., LLC v. United States, 851 Some animals would only receive a
F.3d 1375 (Fed. Cir. Mar. 28, 2017) (Meridian VI). 17 Id., at 1383–85. flipper tag or a dye mark. Other animals
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Document Created: 2018-10-24 11:23:56
Document Modified: 2018-10-24 11:23:56
| 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 | |
| Dates | Effective July 18, 2017. | |
| Contact | James Terpstra, AD/CVD Operations, Office III, Enforcement and Compliance, U.S. Department of Commerce, 1401 Constitution Avenue NW., Washington, DC 20230; telephone: 202-482- 3965. | |
| FR Citation | 82 FR 32788 |
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