2010-32867. Aluminum Extrusions From the People's Republic of China: Notice of Amended Preliminary Determination of Sales at Less Than Fair Value

AGENCY:

Import Administration, International Trade Administration, Department of Commerce

DATES:

Effective Date: January 4, 2011.

SUMMARY:

The Department of Commerce (“Department”) has determined that it made certain significant ministerial errors in the preliminary determination of sales at less than fair value in the antidumping duty investigation of aluminum extrusions from the People's Republic of China (“PRC”) as described below in the SUPPLEMENTARY INFORMATION section of this notice. The Department has corrected these errors and has re-calculated the antidumping duty margins for a mandatory respondent and for exporters eligible for a separate rate as shown below in the “Amended Preliminary Determination” section of this notice.

FOR FURTHER INFORMATION CONTACT:

Paul Stolz or Eugene Degnan, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW., Washington, DC 20230; telephone: [phone], or 482-0414, respectively.

SUPPLEMENTARY INFORMATION:

On November 12, 2010, the Department published its affirmative preliminary determination in this proceeding that aluminum extrusions from the PRC are being, or are likely to be, sold in the United States at less than fair value, as provided by section 773 of the Tariff Act of 1930, as amended (the “Act”). See Aluminum Extrusions From the People's Republic of China: Notice of Preliminary Determination of Sales at Less Than Fair Value, and Preliminary Determination of Targeted Dumping, 75 FR 69403 (November 12, 2010) (“Preliminary Determination”).

On November 15, 2010, and November 16, 2010, the Guang Ya Aluminium Industries Co., Ltd., Foshan Guangcheng Aluminium Co., Ltd., Kong Ah International Company Limited, and Guang Ya Aluminium Industries (Hong Kong) Limited, (collectively, “Guang Ya Group”) and Zhaoqing New Zhongya Aluminum Co., Ltd., Zhongya Shaped Aluminium (HK) Holding Limited, and Karlton Aluminum Company Ltd. (collectively “New Zhongya”) submitted timely ministerial error allegations with respect to the Department's Preliminary Determination. Therefore, in accordance to section 351.224(e) of the Department's regulations, we have made changes, as discussed below, to the Preliminary Determination.

Period of Investigation

The period of investigation (“POI”) is July 1, 2009, through December 31, 2009. This period corresponds to the two most recent fiscal quarters prior to the month of the filing of the petition, which was March 2009. See 19 CFR 351.204(b)(1).

Scope of Investigation

The merchandise covered by this investigation is aluminum extrusions which 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, the subject merchandise made from aluminum alloy with an Aluminum Association series designation commencing with the number 1 contains not less than 99 percent aluminum by weight. The subject merchandise made from aluminum alloy with an Aluminum Association series designation commencing with the number 3 contains manganese as the major alloying element, with manganese accounting for not more than 3.0 percent of total materials by weight. The subject merchandise made from an aluminum alloy with an Aluminum Association series designation commencing with the number 6 contains 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 subject aluminum extrusions are properly identified by a four-digit alloy series without either a decimal point or leading letter. Illustrative examples from among the approximately 160 registered alloys that may characterize the subject merchandise are as follows: 1350, 3003, and 6060.

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.

Aluminum extrusions are produced and imported with a variety of finishes (both coatings and surface treatments), and types of fabrication. The types of coatings and treatments applied to subject 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 bright-dip anodized), liquid painted, or powder coated. Aluminum extrusions may also be fabricated, i.e., prepared for assembly. Such operations would include, but are not limited to, extrusions that are cut-to-length, machined, drilled, punched, notched, bent, stretched, knurled, swedged, mitered, chamfered, threaded, and spun. The subject merchandise includes aluminum extrusions that are finished (coated, painted, etc.), fabricated, or any combination thereof.

Subject aluminum extrusions may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, window frames, door frames, solar panels, curtain walls, or furniture. Such parts that otherwise meet the definition of aluminum extrusions are included in the scope. The scope includes aluminum extrusions that are attached (e.g., by welding or fasteners) to form subassemblies, i.e., partially assembled merchandise.

Subject extrusions may be identified with reference to their end use, such as heat sinks, door thresholds, or carpet trim. Such goods are subject merchandise if they otherwise meet the scope definition, regardless of whether they are finished products and ready for use at the time of importation.

The following aluminum extrusion products are excluded: Aluminum extrusions made from aluminum alloy with an Aluminum Association series designation commencing with the number 2 and containing in excess of 1.5 percent 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 percent 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 percent zinc by weight.

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, picture frames, and solar panels. The scope also excludes finished goods containing aluminum extrusions that are entered unassembled in a “kit.” A 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.

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. The scope also excludes pure, 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 mm or 62 mm, (2) outer diameter of 11.0 mm or 12.7 mm, and (3) wall thickness not exceeding 0.13 mm.

Imports of the subject merchandise are provided for 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, and 7608.20.0090. The subject merchandise entered as parts of other aluminum products may be classifiable under the following additional Chapter 76 subheadings: 7610.10, 7610.90, 7615.19, 7615.20, and 7616.99 as well as under other HTS chapters. While HTS subheadings are provided for convenience and customs purposes, the written description of the scope in this proceeding is dispositive.

Significant Ministerial Error

Ministerial errors are defined in section 735(e) of the Act as “errors in addition, subtraction, or other arithmetic function, clerical errors resulting from inaccurate copying, duplication, or the like, and any other type of unintentional error which the administering authority considers ministerial.” Section 351.224(e) of the Department's regulations provides that the Department “will analyze any comments received and, if appropriate, correct any significant ministerial error by amending the preliminary determination * * *.” See 19 CFR 361.224(e). A significant ministerial error is defined as a ministerial error, the correction of which, either singly or in combination with other errors, would result in (1) a change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination, or (2) a difference between a weighted-average dumping margin of zero (or de minimis) and a weighted-average dumping margin of greater than de minimis or vice versa. See 19 CFR 351.224(g).

In accordance with 19 CFR 351.224(e) and (g)(1), the Department is amending the preliminary determination of sales at less than fair value in the antidumping duty investigation of aluminum extrusions from the PRC to reflect the correction of significant ministerial errors it made in the margin calculations regarding the mandatory respondent in this investigation Guang Ya Group, New Zhongya, and Xinya Aluminum & Stainless Steel Product Co., Ltd. (“Xinya”) ^[1] (collectively “Guang Ya Group/New Zhongya/Xinya”).

Ministerial-Error Allegation

The Guang Ya Group

The Guang Ya Group argues that the Department erred by inadvertently applying an incorrect ratio for the Guang Ya Group's U.S. indirect selling expense in the SAS margin calculation program by coding the decimal point in the wrong place. The Department agrees, and finds that this error qualifies as a ministerial error in accordance with section 735(e) of the Act. Moreover, the Department determines that correcting this error would result in a change of at least five absolute percentage points in, but not less than 25 percent of, the weighted-average dumping margin calculated in the original (erroneous) preliminary determination, and thus has corrected the error.

New Zhongya

New Zhongya argues that the Department committed a ministerial error by failing to correct respondent's database reporting errors relating to (1) certain movement expenses, and (2) the “packing-paper” consumption factor of production.

With respect to New Zhongya's assertion that the Department committed a ministerial error by failing to correct certain incorrectly reported movement expenses, the Department disagrees.

While the Department corrected several database reporting errors committed by New Zhongya and the Guang Ya Group for purposes of the Preliminary Determination,^[2] the Department was not able to identify all of their errors, nor should it be expected to. It is the responsibility of respondents to provide complete and accurate information and data to the Department; however, in this case, the errors in question are reporting errors made by the respondent, not ministerial errors made by the Department. Accordingly, the Department finds that New Zhongya and the Guang Ya Group's database reporting errors relating to certain movement expenses do not constitute ministerial errors by the Department pursuant to section 735(e) of the Act, and thus has not corrected respondents’ reporting errors for this amended preliminary determination.

With respect to New Zhongya's assertion that the Department committed a ministerial error by failing to correct Guang Ya Group/New Zhongya's database reporting error for the “packing-paper” consumption factor of production (“FOP”), the Department also disagrees. Specifically, Guang Ya Group/New Zhongya erred in reporting its consumption of “packing-paper” in the consolidated FOP databases by inadvertently failing to convert the reporting basis from kilograms per metric ton to kilograms per kilogram, but indicating in the database that it had made this conversion which resulted in applying inconsistent units of measure for the consumption of the “packing-paper” input. While Guang Ya Group/New Zhongya neglected to convert the units of measure relating to “packing-paper,” it did correctly convert, and report, the units of measure for other factors of production when consolidating their FOP databases. Therefore, the Department finds that this constitutes a reporting error by respondent, not a ministerial error by the Department pursuant to section 735(e) of the Act, and thus has not corrected respondents' reporting error for this amended preliminary determination.

Additional Ministerial Error

Additionally, in reviewing the antidumping duty margin calculations in light of the ministerial error allegations raised by parties in this investigation, the Department has identified an error committed by the Department regarding the calculation of the surrogate value for labor that constitutes a ministerial error pursuant to section 735(e) of the Act.

In applying the procedures discussed in the Factors of Production memorandum issued concurrently with the Preliminary Determination, the Department erred in identifying the significant producers of comparable merchandise. The Department committed a ministerial error when downloading the Global Trade Atlas (“GTA”) export data by inadvertently (1) selecting data from years 2008 through 2010, and (2) limiting the data to exports from January to August, which resulted in an incomplete and inapplicable dataset because the export list (e.g., 2010) post-dates the instant POI. In identifying whether a country is a significant producer of comparable merchandise, it is the Department's practice to rely on annualized GTA export data based on the three years leading up to the end of the relevant POI, (in this case that should be 2007 through 2009).

Therefore, for this amended preliminary determination, the Department has corrected the ministerial error and recalculated the surrogate labor rate. For the revised labor rate calculation, see Investigation of Certain Aluminum Extrusions from the People's Republic of China: Petition Rate recalculation, at Attachment I. For further discussion of the ministerial error allegations and the Department's positions, see the “Ministerial Error Memorandum, Aluminum Extrusions from the People's Republic of China, Preliminary Determination of Sales at Less Than Fair Value,” dated December 21, 2010; see also Appendix I for a list of the ministerial error allegations.

Recalculated Initiation Margins

As a result of correcting the ministerial errors discussed above, the Department has revised the overall antidumping duty rate for the mandatory respondent to a rate that falls below the initiation margins. While the Department normally does not recalculate the petition rates, the initiation margins were calculated using the Department's regression analysis as a basis for the labor surrogate value, and the regulation regarding that analysis was invalidated by the Court of Appeals for the Federal Circuit in Dorbest IV.^[3] Therefore, in light of the Federal Circuit decision, the Department has adjusted the Petition rates using the revised surrogate value for labor discussed above, resulting in adjusted Petition rates ranging from 32.44 to 33.18 percent.^[4]

Corroboration

As a result of correcting the ministerial errors discussed above, and the subsequent revision of the antidumping duty rate for the mandatory respondent to a rate below the adjusted initiation margin, the Department has determined to use the highest adjusted petition rate when applying adverse facts available (“AFA”).^[5] Section 776(c) of the Act provides that, when the Department relies on secondary information rather than on information obtained in the course of an investigation as FA, it must, to the extent practicable, corroborate that information from independent sources reasonably at its disposal. Secondary information is described as “information derived from the petition that gave rise to the investigation or review, the final determination concerning the subject merchandise, or any previous review under section 751 concerning the merchandise subject to this investigation.” ^[6] To “corroborate” means that the Department will satisfy itself that the secondary information to be used has probative value. Independent sources used to corroborate may include, for example, published price lists, official import statistics and customs data, and information obtained from interested parties during the particular investigation. To corroborate secondary information, the Department will, to the extent practicable, examine the reliability and relevance of the information used.^[7]

To corroborate the AFA margin that we have selected, we compared this margin to the transaction-specific margins we found for the cooperating mandatory respondents. We found that the margin of 33.18 percent has probative value because it is in the range of the transaction-specific margins that we found for Guang Ya Group/New Zhongya/Xinya during the period of investigation. See Amended Preliminary Determination Analysis Memorandum dated concurrently with this notice. Accordingly, we find this rate is reliable and relevant, considering the record information, and thus, has probative value. See Amended Preliminary Determination Analysis Memorandum dated concurrently with this notice.

Given that numerous PRC-wide entities did not respond to the Department's requests for information in this investigation, the Department concludes that the updated petition rate of 33.18 percent, as total AFA for the PRC-wide entity, is sufficiently adverse to prevent these respondents from benefitting from their lack of cooperation. See SAA at 870. Accordingly, we find that the rate of 33.18 percent is corroborated to the extent practicable within the meaning of section 776(c) of the Act.

Consequently, we are applying 33.18 percent as the single antidumping rate to the PRC-wide entity. The PRC-wide rate applies to all entries of the merchandise under investigation except for entries from Guang Ya Group/New Zhongya/Xinya and the separate rate applicants, listed below, receiving a separate rate.

Amended Preliminary Determination

We are publishing this amended preliminary determination pursuant to 19 CFR 351.224(e). As a result of this amended preliminary determination, we have revised the antidumping rate for Guang Ya Group/New Zhongya/Xinya. In addition, we have revised the separate rate based on Guang Ya Group/New Zhongya/Xinya's revised dumping margin. Because Guang Ya Group/New Zhongya/Xinya's revised dumping margin is lower than the Petition rate, we have also revised the PRC-wide entity rate. The margin for the companies granted separate-rate status must also be revised because the margin for those companies was derived from the Guang Ya Group/New Zhongya/Xinya margin.

As a result of our correction of significant ministerial errors in the Preliminary Determination, we have determined that the following weighted-average dumping margins apply:

Exporter	Producer	Weighted- average margin
Guang Ya Aluminium Industries Co., Ltd; Foshan Guangcheng Aluminium Co., Ltd; Kong Ah International Company Limited; Guang Ya Aluminium Industries (Hong Kong) Limited; Zhaoqing New Zhongya Aluminum Co., Ltd; Zhongya Shaped Aluminium (HK) Holding Limited; Karlton Aluminum Company Ltd; Xinya Aluminum & Stainless Steel Product Co., Ltd (A.K.A. New Asia Aluminum & Stainless Steel Product Co., Ltd)	Guang Ya Aluminium Industries Co., Ltd; Foshan Guangcheng Aluminium Co., Ltd; Kong Ah International Company Limited; Guang Ya Aluminium Industries (Hong Kong) Limited; Zhaoqing New Zhongya Aluminum Co., Ltd; Zhongya Shaped Aluminium (HK) Holding Limited; Karlton Aluminum Company Ltd; Xinya Aluminum & Stainless Steel Product Co., Ltd (A.K.A. New Asia Aluminum & Stainless Steel Product Co., Ltd)	32.04
Alnan Aluminium Co., Ltd	Alnan Aluminium Co., Ltd	32.04
Changshu Changsheng Aluminium Products Co., Ltd	Changshu Changsheng Aluminium Products Co., Ltd	32.04
China Square Industrial Limited	Zhaoqing China Square Industry Limited	32.04
Cosco (J.M) Aluminium Co., Ltd	Cosco (J.M) Aluminium Co., Ltd; Jiangmen Qunxing Hardware Diecasting Co., Ltd	32.04
First Union Property Limited	Top-Wok Metal Co., Ltd	32.04
Foshan Jinlan Non-ferrous Metal Product Co.; Ltd	Foshan Jinlan Aluminium Co.; Ltd	32.04
Foshan Sanshui Fenglu Aluminium Co., Ltd	Foshan Sanshui Fenglu Aluminium Co., Ltd	32.04
Guangdong Hao Mei Aluminium Co., Ltd	Guangdong Hao Mei Aluminium Co., Ltd	32.04
Guangdong Weiye Aluminium Factory Co., Ltd	Guangdong Weiye Aluminium Factory Co., Ltd	32.04
Guangdong Xingfa Aluminium Co., Ltd	Guangdong Xingfa Aluminium Co., Ltd	32.04
Hanwood Enterprises Limited	Pingguo Aluminium Company Limited	32.04
Honsense Development Company	Kanal Precision Aluminium Product Co., Ltd	32.04
Innovative Aluminium (Hong Kong) Limited	Taishan Golden Gain Aluminium Products Limited	32.04
Jiangyin Trust International Inc	Jiangyin Xinhong Doors and Windows Co., Ltd	32.04
JMA (HK) Company Limited	Guangdong Jianmei Aluminum Profile Company Limited; Foshan JMA Aluminium Company Limited	32.04
Kam Kiu Aluminium Products Sdn Bhd	Tai Shan City Kam Kiu Aluminium Extrusion Co., Ltd	32.04
Longkou Donghai Trade Co., Ltd	Shandong Nanshan Aluminum Co., Ltd	32.04
Ningbo Yili Import and Export Co., Ltd	Zhejiang Anji Xinxiang Aluminum Co., Ltd	32.04
North China Aluminum Co., Ltd	North China Aluminum Co., Ltd	32.04
PanAsia Aluminium (China) Limited	PanAsia Aluminium (China) Limited	32.04
Pingguo Asia Aluminum Co., Ltd	Pingguo Asia Aluminum Co., Ltd	32.04
Popular Plastics Co., Ltd	Hoi Tat Plastic Mould & Metal Factory	32.04
Press Metal International Ltd	Press Metal International Ltd	32.04
Shenyang Yuanda Aluminium Industry Engineering Co. Ltd	Zhaoqing Asia Aluminum Factory Company Limited; Guang Ya Aluminum Industries Co., Ltd	32.04
Tai-Ao Aluminium (Taishan) Co., Ltd	Tai-Ao Aluminium (Taishan) Co., Ltd	32.04
Tianjin Ruixin Electric Heat Transmission Technology Co., Ltd	Tianjin Ruixin Electric Heat Transmission Technology Co., Ltd	32.04
USA Worldwide Door Components (Pinghu) Co., Ltd; Worldwide Door Components (Pinghu) Co	USA Worldwide Door Components (Pinghu) Co., Ltd	32.04
Zhejiang Yongkang Listar Aluminium Industry Co., Ltd	Zhejiang Yongkang Listar Aluminium Industry Co., Ltd	32.04
Zhongshan Gold Mountain Aluminium Factory Ltd	Zhongshan Gold Mountain Aluminium Factory Ltd	32.04
PRC-wide Entity		33.18

The collection of bonds or cash deposits and suspension of liquidation will be revised accordingly and parties will be notified of this determination, in accordance with section 733(d) and (f) of the Act.

International Trade Commission Notification

In accordance with section 733(f) of the Act, we have notified the International Trade Commission (“ITC”) of our amended preliminary determination. If our final determination is affirmative, the ITC will determine before the later of 120 days after the date of the preliminary determination or 45 days after our final determination whether the domestic industry in the United States is materially injured, or threatened with material injury, by reason of imports, or sales (or the likelihood of sales) for importation, of the subject merchandise.

This determination is issued and published in accordance with sections 733(f) and 777(i)(1) of the Act and 19 CFR 351.224(e).

Dated: December 21, 2010.

Christian Marsh,

Acting Deputy Assistant Secretary for Import Administration.

Appendix I

Issue 1: Whether the Department used an incorrect indirect selling expense ratio in the SAS programming (Guang Ya Group)

Issue 2: Whether the Department should correct errors made by New Zhongya with respect to its reported USINSURU and INSURU expenses

Issue 3: Whether the Department used the correct surrogate value for packing paper (PAPER1)

Issue 4: Recalculation of the surrogate value for labor

Footnotes

1.  This entity is also known as New Asia Aluminum & Stainless Steel Product Co., Ltd.

2.  See October 27, 2010, memorandum from Paul Stolz, Senior International Trade Compliance Analyst, to Eugene Degnan, Program Manager, regarding the Preliminary Determination Analysis Memorandum for Guang Ya Aluminium Industries Co., Ltd., Foshan Guangcheng Aluminium Co., Ltd., Kong Ah International Company Limited, and Guang Ya Aluminium Industries (Hong Kong) Limited, (collectively, “GYG”) and (2) Zhaoqing New Zhongya Aluminum Co., Ltd., Zhongya Shaped Aluminium (HK) Holding Limited (collectively “NZ”) and (3) Xinya Aluminum & Stainless Steel Product Co., Ltd. (“Xinya”).

3.  See Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (CAFC 2010) (“Dorbest IV”).

4.  See Id. See also December 21, 2010, Ministerial Error Memorandum, Aluminum Extrusions from the People's Republic of China, Preliminary Determination of Sales at Less Than Fair Value, at Issue 4; and December 21, 2010, Memorandum to the File, regarding Investigation of Certain Aluminum Extrusions from the People's Republic of China: Petition Rate recalculation.

5.  See December 10, 2010, Memorandum to the File, regarding Investigation of Certain Aluminum Extrusions from the People's Republic of China: Petition Rate recalculation.

6.  See “Statement of Administrative Action” accompanying the URAA, H.R. Rep. No. 103-316, vol. 1, at 870 (1994) (“SAA”).

7.  See Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan, and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 61 FR 57391, 57392 (November 6, 1996), and unchanged in Tapered Roller Bearings and Parts Thereof, Finished and Unfinished, From Japan; and Tapered Roller Bearings, Four Inches or Less in Outside Diameter, and Components Thereof, From Japan; Final Results of Antidumping Duty Administrative Reviews and Termination in Part, 62 FR 11825 (March 13, 1997).