On October 4, 2023, the US Aluminum Extruders Coalition and the United Steel, Paper and Forestry, Rubber, Manufacturing, Energy, Allied Industrial and Service Workers International Union ("Petitioners") filed an antidumping duty ("ADD") petition on imports of aluminum extrusions from Colombia, the Dominican Republic, Ecuador, India, Indonesia, Italy, Malaysia, Mexico, the People's Republic of China ("China"), the Republic of Korea ("Korea"), Taiwan, Thailand, Turkey, the United Arab Emirates ("UAE"), and Vietnam; and a countervailing duty ("CVD") petition against aluminum extrusions from China, Indonesia, Mexico, and Turkey. The ADD petition alleges that imports of aluminum extrusions from these 15 countries are being sold in the United States at less than fair value (that is, "dumped"). The CVD petition alleges that the governments of China, Indonesia, Mexico, and Turkey are providing countervailable subsidies with respect to the manufacture, production, and export of aluminum extrusions. Petitioners allege that the domestic industry has been materially injured and is threatened with further material injury by the subject imports.
The merchandise subject to this investigation is aluminum extrusions, regardless of form, finishing, or fabrication, whether assembled with other parts or unassembled, whether coated, painted, anodized, or thermally improved. Aluminum extrusions are shapes and forms, produced by an extrusion process, 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). Specifically, subject aluminum extrusions made from an aluminum alloy with an Aluminum Association series designation commencing with the number 1 contain not less than 99 percent aluminum by weight. Subject aluminum extrusions made from an aluminum alloy with an Aluminum Association series designation commencing with the number 3 contain manganese as the major alloying element, with manganese accounting for not more than 3.0 percent of total materials by weight. Subject aluminum extrusions made from an aluminum alloy with an Aluminum Association series designation commencing with the number 6 contain magnesium and silicon as the major alloying elements, with magnesium accounting for at least 0.1 percent but not more than 2.0 percent of total materials by weight, and silicon accounting for at least 0.1 percent but not more than 3.0 percent of total materials by weight. The scope also includes merchandise made from an aluminum alloy with an Aluminum Association series designation commencing with the number 5 (or proprietary equivalents or other certifying body equivalents) that have a magnesium content accounting for up to but not more than 2.0 percent of total materials by weight. Ssd Copper Heatsink
The country of origin of the aluminum extrusion is determined by where the metal is extruded (i.e., pressed through a die).
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.
Subject aluminum extrusions are produced and imported with a variety of coatings and surface treatments, and types of fabrication. The types of coatings and treatments applied to aluminum extrusions include, but are not limited to, extrusions that are mill finished (i.e., without any coating or further finishing), brushed, buffed, polished, anodized (including brightdip), liquid painted, electroplated, chromate converted, powder coated, sublimated, wrapped, and/or bead blasted. Subject aluminum extrusions may also be fabricated, i.e., prepared for assembly, or thermally improved. Such operations would include, but are not limited to, extrusions that are cut-to-length, machined, drilled, punched, notched, bent, stretched, stretch-formed, hydroformed, knurled, swedged, mitered, chamfered, threaded, and spun. Performing such operations in third countries does not otherwise remove the merchandise from the scope of the investigation.
The types of products that meet the definition of subject merchandise include but are not limited to, vehicle roof rails and sun/moon roof framing, solar panel racking rails and framing, tradeshow display fixtures and framing, parts for tents or clear span structures, fence posts, drapery rails or rods, electrical conduits, door thresholds, flooring trim, electric vehicle battery trays, heat sinks, signage or advertising poles, picture frames, telescoping poles, or cleaning system components. Heat sinks are included in the scope, regardless of whether the design and production of the heat sinks are organized around meeting specified thermal performance requirements and regardless of whether they have been tested to comply with such requirements.
Merchandise that is comprised solely of aluminum extrusions or aluminum extrusions and fasteners, whether assembled at the time of importation or unassembled, is covered by the scope in its entirety.
The scope also covers aluminum extrusions that are imported with non-extruded aluminum components beyond fasteners, whether assembled at the time of importation or unassembled, that are designed to be a part or subassembly of a larger product or system. Only the aluminum extrusion portion of the merchandise described in this paragraph, whether assembled or unassembled, is subject to duties. Examples of merchandise that is designed to be a part or subassembly of a larger product or system include, but are not limited to, window parts or subassemblies; door unit parts or subassemblies; shower and bath system parts or subassemblies; solar panel mounting systems; fenestration system parts or subassemblies, such as curtain wall and window wall units and parts or subassemblies of storefronts; furniture parts or subassemblies; appliance parts or subassemblies, such as fin evaporator coils and systems for refrigerators; railing or deck system parts or subassemblies; fence system parts or subassemblies; motor vehicle parts or subassemblies, such as bumpers for motor vehicles; trailer parts or subassemblies, such as side walls, flooring, and roofings; electric vehicle charging station parts or subassemblies; or signage or advertising system parts or subassemblies. The scope excludes assembled merchandise containing non-extruded aluminum components beyond fasteners that is not a part or subassembly of a larger product or system and that is used as imported, without undergoing after importation any processing, fabrication, finishing, or assembly or the addition of parts or material, regardless of whether the additional parts or material are interchangeable. Examples of such excluded assembled merchandise include windows with glass, door units with door panel and glass, motor vehicles, trailers, furniture, appliances, and solar panels.
The scope also includes aluminum extrusions that have been further processed in a third country, including, but not limited to, the finishing and fabrication processes described above, assembly, whether with other aluminum extrusion components or with non-aluminum extrusion components, or any other processing that would not otherwise remove the merchandise from the scope if performed in the country of manufacture of the in-scope product. Third-country processing; finishing; and/or fabrication, including those processes described in the scope, does not alter the country of origin of the subject aluminum extrusions.
The following aluminum extrusion products are excluded: aluminum extrusions made from an aluminum alloy with an Aluminum Association series designations commencing with the number 2 (or proprietary equivalents or other certifying body equivalents) and containing in excess of 1.5 percent copper by weight; aluminum extrusions made from an aluminum alloy with an Aluminum Association series designation commencing with the number 5 (or proprietary equivalents or other certifying body equivalents) and containing in excess of 2.0 percent magnesium by weight; and aluminum extrusions made from an aluminum alloy with an Aluminum Association series designation commencing with the number 7 (or proprietary equivalents or other certifying body equivalents) and containing in excess of 2.0 percent zinc by weight.
The scope also excludes aluminum alloy sheet or plates produced by means other than the extrusion process, such as aluminum products produced by a method of continuous casting or rolling. Cast aluminum products are also excluded. The scope also excludes unwrought aluminum in any form.
The scope also 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 millimeters ("mm") or 62 mm, (2) outer diameter of 11.0 mm or 12.7 mm, and (3) wall thickness not exceeding 0.13 mm.
Also excluded from the scope of these investigations is certain rectangular wire, imported in bulk rolls or precut strips and produced from continuously cast rolled aluminum wire rod, which is subsequently extruded to dimension to form rectangular wire with or without rounded edges. The product is made from aluminum alloy grade 1070 or 1370, with no recycled metal content allowed. The dimensions of the wire are 2.95 mm to 6.05 mm in width, and 0.65 mm to 1.25 mm in thickness. Imports of rectangular wire are provided for under HTSUS categories 7605.19.0000, 7604.29.1090, or 7616.99.5190.
Also excluded from the scope of these investigations are all products covered by the scope of the antidumping and countervailing duty orders on Aluminum Extrusions from the People's Republic of China. See Aluminum Extrusions from the People's Republic of China: Antidumping Duty Order, 76 FR 30,650 (May 26, 2011); Aluminum Extrusions from the People's Republic of China: Countervailing Duty Order, 76 FR 30,653 (May 26, 2011).
Imports of the subject merchandise are primarily provided for under the following categories of the Harmonized Tariff Schedule of the United States (HTSUS): 7604.10.1000; 7604.10.3000; 7604.10.5000; 7604.21.0010; 7604.21.0090; 7604.29.1010; 7604.29.1090; 7604.29.3060; 7604.29.3090; 7604.29.5050; 7604.29.5090; 7608.10.0030; 7608.10.0090; 7608.20.0030; 7608.20.0090; 7609.00.0000; 7610.10.0010; 7610.10.0020; 7610.10.0030; 7610.90.0040; and 7610.90.0080.
Imports of the subject merchandise, including subject merchandise entered as parts of other products, may also be classifiable under the following additional HTSUS categories, as well as other HTSUS categories: 6603.90.8100; 7606.12.3091; 7606.12.3096; 7615.10.2015; 7615.10.2025; 7615.10.3015; 7615.10.3025; 7615.10.5020; 7615.10.5040; 7615.10.7125; 7615.10.7130; 7615.10.7155; 7615.10.7180; 7615.10.9100; 7615.20.0000; 7616.10.9090; 7616.99.1000; 7616.99.5130; 7616.99.5140; 7616.99.5190; 8302.10.3000; 8302.10.6030; 8302.10.6060; 8302.10.6090; 8302.20.0000; 8302.30.3010; 8302.30.3060; 8302.41.3000; 8302.41.6015; 8302.41.6045; 8302.41.6050; 8302.41.6080; 8302.42.3010; 8302.42.3015; 8302.42.3065; 8302.49.6035; 8302.49.6045; 8302.49.6055; 8302.49.6085; 8302.50.0000; 8302.60.9000; 8305.10.0050; 8306.30.0000; 8414.59.6590; 8415.90.8045; 8418.99.8005; 8418.99.8050; 8418.99.8060; 8419.50.5000; 8419.90.1000; 8422.90.0640; 8424.90.9080; 8473.30.2000; 8473.30.5100; 8479.89.9599; 8479.90.8500; 8479.90.9596; 8481.90.9060; 8481.90.9085; 8486.90.0000; 8487.90.0080; 8503.00.9520; 8508.70.0000; 8513.90.2000; 8515.90.2000; 8516.90.5000; 8516.90.8050; 8517.71.0000; 8517.79.0000; 8529.90.7300; 8529.90.9760; 8536.90.8585; 8538.10.0000; 8541.90.0000; 8543.90.8885; 8708.10.3050; 8708.29.5160; 8708.80.6590; 8708.99.6890; 8807.30.0060; 9013.90.7000; 9013.90.8000; 9031.90.9195; 9401.99.9081; 9403.10.0040; 9403.20.0086; 9403.91.0005; 9403.91.0010; 9403.91.0080; 9403.99.0040; 9403.20.0086; 9403.91.0005; 9403.91.0010; 9403.91.0080; 9403.99.1040; 9403.99.1050; 9403.99.1085; 9403.99.2040; 9403.99.2080; 9403.99.3005; 9403.99.3010; 9403.99.3080; 9403.99.4004; 9403.99.4010; 9403.99.4080; 9403.99.5005; 9403.99.5010; 9403.99.5080; 9403.99.9010; 9403.99.9015; 9403.99.9020; 9403.99.9040; 9403.99.9045; 9403.99.9051; 9403.99.9061; 9405.99.4020; 9506.11.4080; 9506.51.4000; 9506.51.6000; 9506.59.4040; 9506.70.2090; 9506.91.0010; 9506.91.0020; 9506.91.0030; 9506.99.0510; 9506.99.0520; 9506.99.0530; 9506.99.1500; 9506.99.2000; 9506.99.2580; 9506.99.2800; 9506.99.5500; 9506.99.6080; 9507.30.2000; 9507.30.4000; 9507.30.6000; 9507.30.8000; 9507.90.6000; and 9603.90.8050.
While HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope is dispositive.
There are two phases – preliminary and final – of ADD and CVD investigations. The Department of Commerce ("DOC") will determine whether imports of aluminum extrusions from the targeted countries were dumped in the United States, and establish the antidumping duties that will be imposed. It will also determine whether the governments of China, Indonesia, Mexico, and Turkey subsidized exports of aluminum extrusions to the United States. The International Trade Commission ("ITC") will determine whether imports of the subject merchandise are materially injuring, or threaten to materially injure, the domestic industry.
In order for final ADD and CVD to be imposed, both agencies must issue "affirmative" findings. We discuss below the steps involved in reaching such findings.
By October 24, 2023, DOC must decide whether the ADD petition contains the legally required information regarding Petitioners' standing, dumping, and injury to warrant initiating an investigation. The standard for initiation is low, requiring only that the petition contains information that is "reasonably available" to Petitioners. Consequently, we expect DOC will initiate the investigation by the October 24 deadline.
DOC will issue a questionnaire to, and calculate a dumping rate for, one or more producers in each of the targeted countries. These producers are referred to as "mandatory respondents." The decision of which producers will receive the questionnaire will be based on export volumes. DOC could choose only one producer from each targeted country to respond to the questionnaire if it is possible to account for 80%-85% of exports with just one producer. If not, DOC will choose two or more producers from each targeted country.
The companies that are selected as mandatory respondents will receive dumping rates based on their actual data. If a company refuses to respond to the questionnaire, it will be assigned a dumping rate based on "adverse facts available," which is a punitive rate, typically based on the dumping rate calculated in the petition. The dumping rates alleged in the ADD petition vary by country, as follows:
Because DOC considers China and Vietnam as "non-market economies" ("NMEs"), DOC begins its investigation under the assumption that all exporters are part of a single, government-operated "China-wide entity" or "Vietnam-wide entity" which will be subject to a "China-wide" or "Vietnam-wide" antidumping duty margin. This margin is often based on "adverse facts available," making it punitively high. Companies that demonstrate sufficient independence from the Government of China or the Government of Vietnam may receive a separate dumping rate based on their actual data.
All other producers from each country (other than those that are issued the questionnaire) will be subject to each country's "All Others" Rate, which normally is calculated as the weighted average of the rates assigned to the mandatory respondents in each country.
The ADD questionnaire will request detailed information regarding US sales and home-market sales of aluminum extrusions (transaction-specific prices, direct selling expenses, movement expenses, etc.) and production costs during the period of investigation ("POI"), which will be the period of October 1, 2022, through September 30, 2023, for all targeted countries, except China and Vietnam, for which the POI will be April 1, 2023, through September 30, 2023. DOC will also issue multiple supplemental questionnaires to clarify information reported in the initial response. The burden of responding to the questionnaires is significantly increased if: (1) companies affiliated with the mandatory respondent also produce and/or sell the subject merchandise in the targeted countries; and/or (2) key materials used to produce the subject merchandise are purchased from affiliated suppliers.
Within 140 days after the ADD investigation is initiated (we estimate by March 12, 2024), DOC must make a preliminary determination of whether dumping exists and, if so, the estimated dumping margin for each company investigated (DOC can, and often does, postpone the preliminary determination for an additional 50 days). If DOC makes an affirmative preliminary determination, Customs and Border Protection ("CBP") will suspend liquidation of entries of aluminum extrusions from the targeted countries and require importers to provide ADD cash deposits equal to the preliminary dumping margin calculated for the exporter multiplied by the entered value of the merchandise. Normally, the suspension of liquidation begins on the date DOC's preliminary determination is published in the Federal Register. However, if there are "critical circumstances," the suspension can apply retroactively to imports made 90 days before the preliminary determination is published.
DOC personnel normally visit the mandatory respondents' offices to verify the accuracy of the information provided in the questionnaire responses. This is normally done after the preliminary determination. If the questionnaire responses are incomplete or their accuracy cannot be verified, DOC will calculate dumping margins based on "adverse facts available," which normally means accepting the dumping margins calculated by Petitioners. The verification is one of the most difficult aspects of the investigation.
To verify a respondent's reported information, DOC will send a team of verifiers and require access to confidential information, including the mandatory respondents' accounting records, sales and cost systems, and other sensitive information. In recent practice, due to the COVID-19 pandemic, DOC has first required companies to provide information related to safety and pandemic-related precautions. In the event that DOC determines that it cannot conduct an on-site, in-person verification due to travel or safety concerns, it may conduct a "virtual verification" through an online platform (e.g., Webex/Teams) as an alternative.
Within 75 days after the preliminary determination, DOC will issue a final ADD determination (as with the preliminary determination, DOC can, and often does, postpone this deadline for an additional 60 days). DOC's final decision is based on the verified information, public hearings, and briefs submitted by counsel involved in the case. If a zero-dumping finding is made, or only "de minimis" levels (i.e., less than 2.00%) of dumping margin are found, the investigation ends. If DOC's final ADD determination is affirmative, the case proceeds to ITC for a final injury determination. DOC will also instruct CBP to continue to suspend liquidation of entries of aluminum extrusions from the targeted countries and require ADD cash deposits at the final dumping margins determined for each exporter. Individual companies receiving zero or de minimis rates are excluded from the ADD order (if issued).
As with the dumping investigation, DOC must decide whether the CVD petition contains the legally required information regarding Petitioners' standing, subsidies, and injury to warrant initiating an investigation by October 24, 2023.
DOC will then issue CVD questionnaires to the Chinese, Indonesian, Mexican, and Turkish companies selected for investigation, as well as to the governments of China, Indonesia, Mexico, and Turkey. Typically, DOC chooses the two or three largest foreign exporters from each country to respond to the questionnaire. Again, these are referred to as "mandatory respondents." The CVD questionnaire will seek information about the alleged subsidies for the POI (the most recently completed fiscal year – that is, 2022), as well as for prior years. DOC will likely issue one or more supplemental questionnaires seeking clarification or additional information.
Within 65 days after the CVD investigation is initiated (we estimate by December 28, 2023), DOC must make a preliminary determination of whether subsidization exists and, if so, the estimated CVD rate for each company investigated (DOC can, and often does, postpone the preliminary determination for an additional 65 days). If DOC makes an affirmative preliminary determination, CBP will (as in the dumping investigation) suspend liquidation of entries of aluminum extrusions from China, Indonesia, Mexico, and Turkey and require importers to provide cash deposits equal to the preliminary CVD rate calculated for the exporter multiplied by the entered value of the merchandise. Normally, the suspension of liquidation begins on the date DOC's preliminary determination is published in the Federal Register. However, if there are "critical circumstances," the suspension can apply retroactively to imports made 90 days before the preliminary determination is published.
DOC personnel will visit the mandatory respondents' offices to verify the accuracy of the information provided in the CVD questionnaire responses. DOC will also conduct on-site verifications of the information reported by the governments of China, Indonesia, Mexico, and Turkey. As in the dumping context above, DOC will first determine whether an on-site verification is feasible with respect to health and safety precautions and may conduct a "virtual verification" as an alternative to an on-site, in-person verification.
Within 75 days after the preliminary determination, DOC will issue a final CVD determination. DOC's final decision is based on the verified information, public hearings, and briefs submitted by counsel involved in the case. If a zero-subsidy finding is made, or only "de minimis" levels of subsidies (i.e., less than 1.00%) are found, the investigation ends. If DOC's final determination is affirmative, the case proceeds to ITC for a final injury determination. DOC will also instruct CBP to continue to suspend liquidation of entries of aluminum extrusions from China, Indonesia, Mexico, and Turkey, and require CVD cash deposits at the final subsidy rates determined for each exporter. Individual companies receiving zero or de minimis subsidy rates are excluded from the CVD order (if issued).
ITC is currently scheduled to make a preliminary determination (that is, the Commissioners will vote) no later than November 20, 2023. The preliminary investigation will move very quickly. The legal standard that ITC must apply in reaching its preliminary determination is very low. Essentially, ITC must issue an affirmative preliminary injury determination unless it is clear that the US industry is not being injured or is not threatened with injury. Any doubt requires ITC to continue the investigation. Because this standard is so low, it is extremely difficult to terminate an investigation at the preliminary stage. In the final injury investigation, ITC has considerably more time to conduct its investigation and consider the facts and arguments presented by the parties. The legal standard is also higher in the final phase. Therefore, foreign producers are more likely to succeed at the final stage of ITC's investigation than at the preliminary stage. Nevertheless, it can be advantageous for foreign producers and importers to participate in the preliminary phase of the investigation so they can frame themes and issues for ITC's consideration in the final phase.
ITC will base its preliminary injury determination primarily on information received in responses to the questionnaires sent to US producers, US importers, and foreign producers. Typically, the ITC circulates these questionnaires to parties within two to three business days of the filing of the petition (i.e., on or around October 6 or 9, 2023); and sets the deadline for them a week before the Staff Conference, discussed below (i.e., on or around October 18, 2023). It is important that foreign producers timely submit responses. Otherwise, ITC likely will accept Petitioners' allegations, resulting in an affirmative preliminary injury determination.
ITC Staff will conduct a conference on October 25, 2023. At the conference, interested parties will have an opportunity to present oral testimony and answer ITC Staff's questions. Afterwards, parties will have an opportunity to present written arguments (and supporting exhibits) in post-conference briefs, which likely will be due on October 30.
In the final phase, the ITC conducts a more thorough investigation, with a much higher standard of injury. For the final phase, the ITC crafts more detailed questionnaires for issuance to US producers, US importers, and foreign producers, as well as (unlike in the preliminary phase) for issuance to US purchasers. Before issuing the questionnaires, ITC Staff circulates draft questionnaires for the parties' comments, which is an important opportunity to ensure the questionnaires solicit information needed to support the defense. After issuing and receiving responses to the questionnaires, ITC Staff prepares a report summarizing and discussing the information and data reported in the questionnaire responses, as well as information compiled from the preliminary phase of the investigation and ITC Staff's independent research. The ITC Staff's report is important because it is a key document relied upon by the Commissioners in evaluating whether the US industry is materially injured or threatened with material injury because of the cumulated subject imports. After issuance of the ITC Staff report, parties have approximately one week to submit briefs ("prehearing briefs") presenting their arguments supporting or opposing an affirmative determination of material injury (or threat thereof). Normally one week after the deadline for prehearing briefs, ITC holds a public hearing at which the Commissioners (i.e., the decision makers) preside. During the hearing, both sides – Petitioners in support of ADD/CVD and the foreign producers and US importers/purchasers opposed to ADD/CVD – will each have one hour to make an affirmative presentation, followed by a question-and-answer session with the Commissioners. For the defense, in particular, it is critical that industry witnesses (such as importers and US purchasers) opposed to the imposition of ADD/CVD participate and testify at the ITC hearing. After the hearing, the parties have approximately one week to prepare "posthearing" briefs, which typically focus on rebutting the other side's arguments and answering specific questions raised by the Commissioners at the hearing. Several days before the date of the ITC's scheduled vote, parties have one last opportunity to submit final comments in the case. Unlike the preliminary phase, which takes place over the course of approximately six weeks, the final phase normally takes place over the course of approximately four months.
The table below provides key deadlines* for the DOC and ITC ADD proceedings. These dates assume full extensions of the statutory deadlines and "alignment" of the final ADD and CVD determinations.
* Please note dates are approximate. To the extent a deadline falls on a weekend or holiday, the event will usually occur the preceding or next business day.
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