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, 74466-74467 [2012-30213]
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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Notices
AGENCY:
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.
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 noncooperating 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
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 allothers 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
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 MacLeanFogg II, the Court held that it would
consider the reasonableness of the
preliminary rate when it reviews
Commerce’s remand determination.10
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
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
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).
5 See Final Determination, 76 FR at 18523, and
accompanying Issues and Decision Memorandum
(I&D Memorandum) at Comment 9.
6 See MacLean-Fogg Co. v. United States, 836 F.
Supp. 2d 1367, 1373–1374 (CIT 2012) (MacLeanFogg I).
7 Id. at 1376.
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.
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.
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.
order (11–BIS–0005) via overnight
carrier to the following persons and
offices:
Eric L. Hirschhorn, Esq., Under
Secretary for Industry and Security, U.S.
Department of Commerce, Room H–
3839, 14th & Constitution Avenue NW.,
Washington, DC 20230, Telephone:
(202) 482–5301.
John T. Masterson, Esq., Chief
Counsel for Industry and Security,
Joseph V. Jest, Esq., Chief of
Enforcement and Litigation, Thea D. R.
Kendler, Senior Counsel, Attorneys for
Bureau of Industry and Security, Office
of Chief Counsel for Industry and
Security, United States Department of
Commerce, Room H–3839, 14th Street &
Constitution Avenue NW., Washington,
DC 20230, Telephone: (202) 482–5301.
Enterysys Corporation, Shekar Babu,
1307 Muench Court, San Jose, CA
95131, (FEDEX).
Plot No. 39, Public Sector, Employees
Colony, New Bowenpally 500011,
Secunderabad, India, (FEDEX
International).
Hearing Docket Clerk, USCG, ALJ
Docketing Center, 40 S. Gay Street,
Room 412, Baltimore, Maryland 21202–
4022, Telephone: (410) 962–5100.
Done and dated on this 17th day of
October, 2012, Alameda, California.
Cindy J. Melendres,
Paralegal Specialist to the Hon. Parlen
L. McKenna.
[FR Doc. 2012–29789 Filed 12–13–12; 8:45 am]
BILLING CODE P
DEPARTMENT OF COMMERCE
International Trade Administration
[C–570–968]
mstockstill on DSK4VPTVN1PROD with
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
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
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Federal Register / Vol. 77, No. 241 / Friday, December 14, 2012 / Notices
Timken Notice
DEPARTMENT OF COMMERCE
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.
National Oceanic and Atmospheric
Administration
Administration.
What Fishing Opportunities Are
Available?
RIN 0648–XC368
International Affairs; U.S. Fishing
Opportunities in the Northwest Atlantic
Fisheries Organization Regulatory
Area
National Marine Fisheries
Service (NMFS), National Oceanic and
Atmospheric Administration (NOAA),
Commerce.
ACTION: Notification of U.S. fishing
opportunities.
AGENCY:
SUMMARY: NMFS announces fishing
opportunities in the Northwest Atlantic
Fisheries Organization (NAFO)
Regulatory Area. This action is
necessary to make fishing privileges
available on an equitable basis.
DATES: Effective January 1, 2013,
through December 31, 2013. Expressions
Amended Final Determination
of interest regarding fishing
opportunities in NAFO will be accepted
Because there is now a final court
through December 31, 2012.
decision with respect to the Final
Determination, the Department amends
ADDRESSES: Expressions of interest
its Final Determination. The Department regarding U.S. fishing opportunities in
NAFO should be made in writing to
finds the following revised net subsidy
Patrick E. Moran in the NMFS Office of
rate exists:
International Affairs, at 1315 East-West
Highway, Silver Spring, MD 20910
Ad valorem
Company
net subsidy
(phone: 301–427–8370, fax: 301–713–
rate
2313, email: Pat.Moran@noaa.gov).
Information relating to NAFO fishing
All Others Rate .................... 137.65 percent
opportunities, NAFO Conservation and
ad valorem.
Enforcement Measures, and the High
Seas Fishing Compliance Act (HSFCA)
For companies subject to the all
Permit is available from Douglas
others rate, the cash deposit rate will be Christel, at the NMFS Northeast
the rate listed above and the Department Regional Office at 55 Great Republic
will instruct U.S. Customs and Border
Drive, Gloucester, MA 01930 (phone:
Protection accordingly. This notice is
978–281–9141, fax: 978–281–9135,
issued and published in accordance
email: douglas.christel@noaa.gov) and
with sections 516A(e)(1), 751(a)(1), and
from NAFO on the World Wide Web at
777(i)(1) of the Act.
https://www.nafo.int.
FOR FURTHER INFORMATION CONTACT:
Dated: December 6, 2012.
Patrick E. Moran, 301–427–8370.
Paul Piquado,
SUPPLEMENTARY INFORMATION:
Assistant Secretary for Import
[FR Doc. 2012–30213 Filed 12–13–12; 8:45 am]
mstockstill on DSK4VPTVN1PROD with
BILLING CODE 3510–DS–P
17 See
The principal species managed by
NAFO are cod, flounder, redfish,
American plaice, halibut, hake, capelin,
shrimp, skates and Illex squid. NAFO
maintains conservation measures for
fishery resources in its Regulatory Area
that include one effort limitation fishery
(shrimp), as well as the other fisheries
that are managed by total allowable
catches (TACs) allocated among NAFO
Contracting Parties. At the 2012 NAFO
Annual Meeting, the United States
received national quota allocations for
Timken, 893 F.2d at 341.
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74467
three NAFO stocks to be fished during
2013. However, only redfish and squid
will be made available to U.S. fishing
interests during 2013, as further
described below. The species, location,
and allocation (in metric tons (mt)) of
these 2013 U.S. fishing opportunities, as
found in Annexes I.A, I.B, and I.C of the
2013 NAFO Conservation and
Enforcement Measures, are as follows:
1. Redfish, NAFO Division 3M, 69 mt.
2. Squid (Illex), NAFO Subareas 3 &
4, 453 mt.
3. Shrimp, NAFO Division 3L, 96 mt.
Additionally, the United States may
be transferred up to 1,000 mt (with the
possibility of 500 additional mt) of
NAFO Division 3LNO yellowtail
flounder from Canada’s quota allocation
if requested before January 1 of each
year, or any succeeding year through
2018, based upon a bilateral
arrangement with Canada. The United
States has already requested this 1,000
mt of Division 3LNO yellowtail flounder
from Canada for 2013. Up to 500 mt of
additional Division 3LNO yellowtail
flounder could be made available on the
condition that the United States
transfers its Division 3L shrimp
allocation (96 mt in 2013) to Canada.
The United States has requested this
additional Division 3LNO yellowtail
flounder for 2013 to provide additional
fishing opportunities for U.S. vessels
following the successful development of
a U.S. yellowtail flounder fishery within
the NAFO Regulatory Area during 2012.
If Canada accepts this request, the U.S.
allocation of Division 3L shrimp will
not be available to U.S. vessels in 2013.
The arrangement for the transfer of
Canadian yellowtail flounder quota
would enable U.S. vessels to harvest
American plaice as bycatch in the
yellowtail flounder fishery in an amount
equal to 15 percent of the total
yellowtail flounder quota transferred to
the United States. Additional quota for
these and other stocks managed within
the NAFO Regulatory Area may be
available to U.S. vessels through
industry-initiated chartering
arrangements or transfers of quota from
other NAFO Contracting Parties.
U.S. fishermen may also access stocks
in which the United States has not
received a national quota (also known as
the ‘‘Others’’ allocation), including:
Division 3M cod (57 mt); Division 3LN
redfish (39 mt); Division 3O redfish (100
mt); Division 3NO white hake (59 mt);
Division 3LNO skates (258 mt). Note
that the United States shares these
allocations with other NAFO
Contracting Parties, and access to such
stocks is on a first-come-first-served
basis. Fishing is halted by NAFO when
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]]>Agencies
[Federal Register Volume 77, Number 241 (Friday, December 14, 2012)]
[Notices]
[Pages 74466-74467]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2012-30213]
-----------------------------------------------------------------------
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.
---------------------------------------------------------------------------
\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).
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\5\ See Final Determination, 76 FR at 18523, and accompanying
Issues and Decision Memorandum (I&D Memorandum) at Comment 9.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\6\ See MacLean-Fogg Co. v. United States, 836 F. Supp. 2d 1367,
1373-1374 (CIT 2012) (MacLean-Fogg I).
\7\ Id. at 1376.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
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\
---------------------------------------------------------------------------
\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.
---------------------------------------------------------------------------
[[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.
---------------------------------------------------------------------------
\17\ See Timken, 893 F.2d at 341.
---------------------------------------------------------------------------
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:
------------------------------------------------------------------------
Company Ad valorem net subsidy rate
------------------------------------------------------------------------
All Others Rate......................... 137.65 percent
ad valorem.
------------------------------------------------------------------------
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
