Aluminum Extrusions From the People's Republic of China: Notice of Second Amended Final Scope Ruling Pursuant to Court Decision
| Citation | 84 FR 29845 |
| Record Number | 2019-13479 |
| Published date | 25 June 2019 |
| Section | Notices |
| Court | International Trade Administration |
Federal Register, Volume 84 Issue 122 (Tuesday, June 25, 2019)
[Federal Register Volume 84, Number 122 (Tuesday, June 25, 2019)]
[Notices]
[Pages 29845-29846]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-13479]
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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 May 23, 2018, the Court of Appeals for the Federal Circuit
(the CAFC) reversed and vacated, in part, the Court of International
Trade's (the CIT) earlier decisions, vacated Commerce's remand
determination, and reinstated Commerce's original scope ruling, in
part. In Commerce's original scope ruling, Commerce found that
Whirlpool Corporation's (Whirlpool) kitchen appliance door handles with
plastic end caps were covered by the general scope language of the
antidumping duty (AD) and countervailing duty (CVD) orders on aluminum
extrusions from the People's Republic of China (China). On May 1, 2019,
the CIT granted Whirlpool's request to dismiss the litigation
concerning its handles. Accordingly, Commerce is issuing a second
amended final scope ruling.
DATES: Applicable June 25, 2019.
FOR FURTHER INFORMATION CONTACT: Eric Greynolds, AD/CVD Operations,
Office III, Enforcement and Compliance, U.S. Department of Commerce,
1401 Constitution Avenue NW, Washington, DC 20230; telephone: 202-482-
6071.
SUPPLEMENTARY INFORMATION:
Background
On August 4, 2014, Commerce found that kitchen appliance door
handles with plastic end caps imported by Whirlpool were subject to the
Orders.\1\ Specifically, Commerce found that the handles did not fall
under the finished merchandise or finished goods kit exclusions, based
on its interpretation of these exclusions, as adopted in prior scope
rulings.\2\
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\1\ See Memorandum, ``Final Scope Ruling on Kitchen Appliance
Door Handles with Plastic End Caps and Kitchen Appliance Door
Handles without Plastic End Caps,'' dated August 4, 2014 (Final
Scope Ruling).
\2\ Id. at 16-21, citing, e.g., Memorandum to Christian Marsh,
Deputy Assistant Secretary for Antidumping and Countervailing Duty
Operations, ``Final Scope Ruling on Meridian Kitchen Appliance Door
Handles,'' dated June 21, 2013, (Kitchen Appliance Door Handles I
Scope Ruling) and Memorandum to Christian Marsh, Deputy Assistant
Secretary for Antidumping and Countervailing Duty Operations,
``Final Scope Ruling on J.A. Hancock, Inc.'s Geodesic Structures,''
(July 17, 2012) (Geodesic Domes Scope Ruling).
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Whirlpool filed suit challenging the Final Scope Ruling. In
Whirlpool I, the CIT held that ``the general scope language is not
reasonably interpreted to include the kitchen appliance door handles
described in Whirlpool's first scope ruling request{,{time} '' (i.e.,
the kitchen appliance door handles with plastic end caps).\3\ The CIT
further held that, even if the general scope language could be
reasonably interpreted to include the handles, Commerce's determination
that the handles did not satisfy the finished merchandise exclusion
based on Commerce's interpretation of the exclusion was in error.\4\
Therefore, the CIT remanded the Final Scope Ruling to Commerce for
reconsideration in light of Whirlpool I.\5\
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\3\ See Whirlpool Corporation v. United States, 144 F. Supp. 3d
1296, 1303 (CIT 2016) (Whirlpool I). The Court affirmed Commerce's
determination that the kitchen appliance door handles without end
caps are within the scope of the Orders. Id. at 1306.
\4\ Id. at 1304.
\5\ Id. at 1305-07.
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In its Remand Redetermination, under protest, Commerce complied
with Whirlpool I and found the handles were not covered by the general
scope language of the Orders.\6\ Commerce did not further address the
finished merchandise exclusion. The CIT affirmed the Remand
Redetermination in Whirlpool II.\7\ Pursuant to Whirlpool II, on
September 27, 2016, Commerce published its First Amended Final Scope
Ruling, finding that the handles
[[Page 29846]]
were not covered by the scope of the Orders.\8\
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\6\ See Final Results of Redetermination Pursuant to Court
Remand, Whirlpool Corp. v. United States, Court No. 14-00199, Slip
Op. 16-08 (CIT February 1, 2016), dated April 15, 2016 (Remand
Redetermination).
\7\ See Whirlpool Corporation v. United States, 182 F. Supp. 3d
1307 (CIT 2016) (Whirlpool II).
\8\ 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 66259 (September 27, 2016) (First Amended Final Scope Ruling).
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The Aluminum Extrusion Fair Trade Committee (AEFTC), the petitioner
in the underlying investigations, appealed. In Whirlpool III, the CAFC
held that:
{T{time} he CIT erred when it stated that assembly processes
were absent from the specified post-extrusion processes. The general
scope language unambiguously includes aluminum extrusions that are
part of an assembly. The Orders explicitly include aluminum
extrusions ``that are assembled after importation'' in addition to
``aluminum extrusion components that are attached (e.g., by welding
or fasteners) to form subassemblies.'' \9\
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\9\ See Whirlpool Corporation v. United States, 890 F.3d 1302,
1309 (Fed. Cir. 2018) (Whirlpool III).
Thus, the CAFC held that Commerce's determination in the Final
Scope Ruling ``that the general scope language includes Whirlpool's
assembled handles was supported by substantial evidence.'' \10\ The
CAFC further held that Commerce's determination that the handles did
not satisfy the finished merchandise exclusion was based on an
incorrect interpretation of the exclusion.\11\ Therefore, the CAFC
reversed Whirlpool II, which affirmed the Remand Redetermination, and
instructed the CIT to vacate the Remand Redetermination and reinstate
the Final Scope Ruling, in part, with respect to Commerce's
determination that the general scope language included the handles.\12\
The CAFC further vacated those portions of Whirlpool I that held that
the general scope language did not cover the handles.\13\ In addition,
the CAFC affirmed, in part, those portions of Whirlpool I which
rejected Commerce's interpretation of the finished merchandise
exclusion and instructed the CIT to vacate the remainder of the Final
Scope Ruling.\14\ Finally, the CAFC remanded to the CIT for Commerce to
reconsider its interpretation of the finished merchandise exclusion as
it pertains to Whirlpool's handles.\15\
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\10\ Id.
\11\ Id. at 1309-11.
\12\ Id. at 1311.
\13\ Id.
\14\ Id. at 1311-12.
\15\ Id. at 1312.
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On January 14, 2019, in Whirlpool IV, in accordance with Whirlpool
III, the CIT vacated the Remand Redetermination, reinstated those
portions of the Final Scope Ruling concluding that Whirlpool's handles
are within the general scope language of the Orders, vacated the
remaining portions of the Final Scope Ruling, and remanded for Commerce
to reconsider whether Whirlpool's handles satisfied the finished
merchandise exclusion.\16\ The CIT further ordered that
``{s{time} hould Commerce determine that the assembled handles are
within the scope of the Orders despite the finished merchandise
exclusion, it must explain its reasoning and also must clarify whether
it is concluding that the handles in their entirety, or only the
extruded aluminum components therein, are within the scope of the
Orders.'' \17\
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\16\ See Whirlpool Corporation v. United States, 357 F. Supp. 3d
1328, 1363-64 (CIT 2019) (Whirlpool IV).
\17\ Id. at 1363.
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On April 1, 2019, Commerce issued the Draft Second Remand
Determination in which it found the extruded aluminum components of
Whirlpool's handles to be within the scope of the Orders and the non-
extruded aluminum components to be outside the scope of the Orders.\18\
Before Commerce issued the final remand redetermination and filed it
with the CIT, Whirlpool requested that the CIT voluntarily dismiss the
action.\19\ On May 1, 2019, the CIT granted Whirlpool's request to
voluntarily dismiss the case.\20\
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\18\ See Draft Results of Second Redetermination Pursuant to
Court Remand, Whirlpool Corp. v. United States, Ct. No. 14-00199,
Slip Op. 19-6, dated April 1, 2019 (Draft Second Remand
Determination).
\19\ See Ct. No. 14-199, ECF Docket No. 75.
\20\ See Ct. No. 14-199, ECF Docket No. 76.
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Second Amended Final Scope Ruling
As noted above, there is now a final and conclusive court decision
which reinstates those portions of the Final Scope Ruling in which
Commerce determined that Whirlpool's handles are within the general
scope language of the Orders. As a result of the dismissal of
Whirlpool's action, no further action is required. Therefore, we are
issuing a second amended final scope ruling and find that Whirlpool's
handles are within the scope of the Orders.
Accordingly, Commerce will instruct U.S. Customs and Border
Protection to continue to suspend liquidation of Whirlpool's handles
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 Whirlpool's handles will be the applicable cash
deposit rate of the exporters of the merchandise from China to the
United States.
Notification to Interested Parties
This notice is issued and published in accordance with section
516A(c)(1) and (e)(1) of the Tariff Act of 1930, as amended.
Dated: June 18, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-13479 Filed 6-24-19; 8:45 am]
BILLING CODE 3510-DS-P
