Antidumping and Countervailing Duty Assessments
on Aluminum Extrusions from China


July 21, 2011

Based on affirmative final determinations, Commerce issued antidumping and countervailing duty orders on aluminum extrusions from the People's Republic of China (“PRC”). The orders were issued May 26, 2011. See 76 FR 30650 and 76 FR 30653. As a result, antidumping and countervailing duties will be assessed on unliquidated entries from the PRC that were entered or withdrawn from warehouse or for consumption on or after November 12, 2010, which was the date Commerce published its preliminary determination.

In its final determination, Commerce found that Chinese producers/exporters sold aluminum extrusions in the United States at dumping margins ranging between 32.79% to 33.28%. Twenty-nine Chinese producers/exporters qualified for a separate rate of 32.79% in the antidumping proceeding while all other Chinese producers/exporters are subject to the China-wide dumping rate of 33.28%. Link to AD order:  http://www.federalregister.gov/articles/2011/05/26/2011-13086/aluminum-extrusions-from-the-peoples-republic-of-china-antidumping-duty-order.

Commerce also determined that Chinese producers/exporters received countervailable subsidies between 8.02% and 374.15% ad valorem. Link to CVD order: http://www.federalregister.gov/articles/2011/05/26/2011-13103/aluminum-extrusions-from-the-peoples-republic-of-china-countervailing-duty-order.

Effect of the Orders

The effect of these orders on the importation of aluminum extrusion products in the United States is expected to be widespread, but because of the technical nature of the orders, it will be challenging for importers and CBP to readily determine if specific aluminum extrusion products are subject to the assessment of antidumping and countervailing duties without detailed information. Because of this, it is anticipated that imports of aluminum extrusion products will be the subject of CBP Form 28 Requests for Information. The failure to properly or timely respond to such requests can result in the improper assessment of antidumping and countervailing duties. Imports of aluminum extrusion products from countries other than China may be subject to country of origin and anti-circumvention requests to determine the country of origin or establish that substantial transformation has occurred.

Whether or not a particular importation is excluded from the scope of the antidumping and countervailing duty orders is a determination that is issued by Commerce and not CBP. Importers desiring to obtain a ruling as to whether a particular product is excluded from the scope of these orders will need to file for a Scope Ruling Request with Commerce based on the procedures specified in 19 CFR § 351.225. Additional information on requesting scope rulings is provided below.

Scope of the Order

Aluminum extrusions are produced and imported in a wide variety of shapes and forms, including, but not limited to, hollow profiles, other solid profiles, pipes, tubes, bars, and rods. Aluminum extrusions that are drawn subsequent to extrusion (“drawn aluminum”) are also included in the scope.

The merchandise covered by the order is aluminum extrusions made from aluminum alloys having metallic elements corresponding to the alloy series designations published by the Aluminum Association commencing with the numbers 1, 3, and 6 (or proprietary equivalents or other certifying body equivalents). Additional metallurgical descriptions are provided in the scope description that accompanies each order.

Merchandise subject to the antidumping and countervailing duty order may be classified under the following categories of the Harmonized Tariff Schedule of the United States (“HTS”):

7604.21.0000

7604.29.1000

7604.29.3010

7604.29.3050

7604.29.5030

7604.29.5060

7608.20.0030

7608.20.0090

7610.10

7610.90

7615.19

7615.20

7616.99

8418.99.80.60

8418.99.80.50

 

While HTS subheadings are provided for convenience and customs purposes, the written description of the scope is dispositive.

The extrusions may be identified with reference to their end-use, such as:

  • fence posts;
  • electrical conduits;
  • door thresholds;
  • carpet trim; or
  • heat sinks (that do not meet the finished heat sink exclusionary language).

Such goods are subject merchandise if they otherwise meet the scope definition, regardless of whether they are ready for use at the time of importation.

The aluminum extrusions may also be described at the time of importation as parts for final finished products that are assembled after importation, including:

  • window frames;
  • door frames;
  • solar panels;
  • curtain walls; or
  • furniture.

All parts that otherwise meet the definition of aluminum extrusions are included in the scope. The scope includes the aluminum extrusion components that are attached (e.g., by welding or fasteners) to form subassemblies, i.e., partially assembled merchandise unless imported as part of the finished goods “kit” defined further below. However, the scope does not include the non-aluminum extrusion components of subassemblies or subject kits.

Products Excluded From the Scope of the Orders

There are some aluminum extrusion products that are excluded from the scope of the order, including:

  • Aluminum extrusions made from aluminum alloy with an Aluminum Association series designations commencing with the number 2 and containing in excess of 1.5% copper by weight;
  • Aluminum extrusions made from aluminum alloy with an Aluminum Association series designation commencing with the number 5 and containing in excess of 1.0% magnesium by weight; and
  • Aluminum extrusions made from aluminum alloy with an Aluminum Association series designation commencing with the number 7 and containing in excess of 2.0% zinc by weight.

Treatment of Finished Goods Assembled with Aluminum Extrusions

The scope also excludes finished merchandise containing aluminum extrusions as parts that are fully and permanently assembled and completed at the time of entry, such as finished windows with glass, doors with glass or vinyl, picture frames with glass pane and backing material, and solar panels.

Treatment of Kits

The scope also excludes finished goods containing aluminum extrusions that are entered unassembled in a “finished goods kit.”  A finished goods kit 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. An 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.

Cast Aluminum Products

The scope also excludes aluminum alloy sheet or plates produced by other than the extrusion process, such as aluminum products produced by a method of casting. Cast aluminum products are properly identified by four digits with a decimal point between the third and fourth digit. A letter may also precede the four digits. The following Aluminum Association designations are representative of aluminum alloys for casting: 208.0, 295.0, 308.0, 355.0, C355.0, 356.0, A356.0, A357.0, 360.0, 366.0, 380.0, A380.0, 413.0, 443.0, 514.0, 518.1, and 712.0.

Collapsible Aluminum Tubular Containers

The scope excludes collapsible tubular containers composed of metallic elements corresponding to alloy code 1080A as designated by the Aluminum Association where the tubular container (excluding the nozzle) meets each of the following dimensional characteristics: (1) Length of 37 mm or 62 mm, (2) outer diameter of 11.0 mm or 12.7 mm, and (3) wall thickness not exceeding 0.13 mm.

Finished Heat Sinks

Also excluded from the scope of this order are finished heat sinks. Finished heat sinks are fabricated heat sinks made from aluminum extrusions the design and production of which are organized around meeting certain specified thermal performance requirements and which have been fully, albeit not necessarily individually, tested to comply with such requirements.

The Countervailing Duty Subsidy Case

In the related CVD investigation, the Department is also issuing a countervailing duty order on aluminum extrusions from the People's Republic of China (“PRC”).

Two voluntary respondents, the Guang Ya Companies and the Zhongya Companies were found to have received net subsidy rates of 9.94 and 8.02% ad valorem, respectively. All other Chinese producers/exporters were found to have received a net subsidy rate of 374.15% ad valorem.

Procedures for Requesting Clarification Whether an Article is Within the Scope of a Dumping Order

Commerce, rather than CBP, determines whether an imported product is within the scope of an antidumping or countervailing duty order. However, CBP may make a determination at the time of entry that the goods are subject to the order. This can present disastrous consequences for some importers because a decision by CBP to assess dumping duties is not a protestable matter.

When questions arise as to whether a product is included within the scope of an antidumping or countervailing duty order, Commerce issues “scope rulings” that clarify the scope of an order with respect to a particular product or products. Section 351.225 of Commerce’s regulations contains the rules regarding scope rulings, requests for scope rulings, procedures for scope inquiries, and standards used in determining whether a product is within the scope of an order. In general, a request for a scope ruling must contain the following information:

  • A detailed description of the product, including its technical characteristics and uses, and its current U.S. Tariff Classification number;
  • A statement of the party's position as to whether the product is within the scope of an order, including:
    • A summary of the reasons for this conclusion,
    • Citations to any applicable statutory authority, and
    • Any factual information supporting this position, including excerpts from portions of the investigation, and relevant prior scope rulings.

 

Seven copies of the request must be filed with Commerce and the application must be served upon all parties on the scope service list. Other parties will have the opportunity to participate in the proceeding. In the end, Commerce will issue a decision as to whether the article is within or excluded from the scope of the order. Scope decisions are appealable to only the United States Court of International Trade, and the Court will assess the correctness of Commerce’s determination based only on the agency record. Because of this standard of review, it is very important that importers carefully and thoroughly prepare a scope ruling request. The failure to do so can result in the improper assessment of antidumping or countervailing duties that may be impossible to recover.

If you would like additional information about these issues, please contact George Tuttle, III at (415) 986-8780 or george.tuttle.iii@tuttlelaw.com.

George R. Tuttle, III is an attorney with the Law Offices of George R. Tuttle in San Francisco.

 

The information in this article is general in nature, and is not intended to constitute legal advice or to create an attorney-client relationship with respect to any event or occurrence, and may not be considered as such.

Copyright © 2011 by Tuttle Law Offices. 

All rights reserved.  Information has been obtained from sources believed to be reliable.  However, because of the possibility of human or mechanical error by our offices or by others, we do not guarantee the accuracy, adequacy, or completeness of any information and are not responsible for any errors, omissions, or for the results obtained from the use of such information.

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