2024-02231. Common Alloy Aluminum Sheet From Germany: Preliminary Results of Changed Circumstances Review, and Intent To Revoke the Antidumping Duty Order, in Part

AGENCY:

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

The U.S. Department of Commerce (Commerce) preliminarily intends to revoke, in part, the antidumping duty (AD) order on common alloy aluminum sheet (CAAS) from Germany with respect to certain lithographic-grade aluminum sheet. Interested parties are invited to comment on these preliminary results.

DATES:

Applicable February 5, 2024.

FOR FURTHER INFORMATION CONTACT:

Stephanie Trejo, AD/CVD Operations, Office IV, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

On April 27, 2021, Commerce published the AD order on common alloy aluminum sheet from Germany.^[1] On May 9, 2023, Eastman Kodak Company (Kodak), a U.S. importer of subject merchandise, requested that Commerce conduct a changed circumstances review (CCR), and revoke, in part, the CAAS AD Germany Order with respect to certain lithographic-grade aluminum sheet pursuant to section 751(b)(1) of the Tariff Act of 1930, as amended (the Act), and 19 CFR 351.216(b).^[2] On July 24, 2023, Commerce issued proposed partial revocation language for the scope in which it omitted references to end-use certificates which had been included by Kodak and solicited interested parties comments on that language.^[3] On July 31, 2023, Commerce initiated the requested CCR.^[4] In the Initiation Notice, Commerce invited interested parties to provide comments and/or factual information regarding the CCR, including comments on industry support and the proposed partial revocation language.^[5] On August 30, 2023, the Aluminum Association Common Alloy Aluminum Sheet Trade Enforcement Working Group and its individual members (Aluminum Association) and Kodak commented on the CCR.^[6] On September 6, 2023, Kodak responded to the Aluminum Association's comments.^[7]

Scope of the CAAS AD Germany Order

The products covered by the Order are common alloy aluminum sheet, which is a flat-rolled aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm, in coils or cut-to-length, regardless of width. Common alloy sheet within the scope of the Order includes both not clad aluminum sheet, as well as multi-alloy, clad aluminum sheet. With respect to not clad aluminum sheet, common alloy sheet is manufactured from a 1XXX-, 3XXX-, or 5XXX-series alloy as designated by the Aluminum Association. With respect to multi-alloy, clad aluminum sheet, common alloy sheet is produced from a 3XXX-series core, to which cladding layers are applied to either one or both sides of the core. The use of a proprietary alloy or non-proprietary alloy that is not specifically registered by the Aluminum Association as a discrete 1XXX-, 3XXX-, or 5XXX-series alloy, but that otherwise has a chemistry that is consistent with these designations, does not remove an otherwise in-scope product from the scope.

Common alloy sheet may be made to ASTM specification B209–14 but can also be made to other specifications. Regardless of specification, however, all common alloy sheet meeting the scope description is included in the scope. Subject merchandise includes common alloy sheet that has been further processed in a third country, including but not limited to annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or slitting, or any other processing that would not otherwise remove the merchandise from the scope of the order if performed in the country of manufacture of the common alloy sheet.

Excluded from the scope of the Order is aluminum can stock, which is suitable for use in the manufacture of aluminum beverage cans, lids of such cans, or tabs used to open such cans. Aluminum can stock is produced to gauges that range from 0.200 mm to 0.292 mm, and has an H–19, H–41, H–48, H–39, or H–391 temper. In addition, aluminum can stock has a lubricant applied to the flat surfaces of the can stock to facilitate its movement through machines used in the manufacture of beverage cans. Aluminum can stock is properly classified under Harmonized Tariff Schedule of the United States (HTSUS) subheadings 7606.12.3045 and 7606.12.3055.

Where the nominal and actual measurements vary, a product is within the scope if application of either the nominal or actual measurement would place it within the scope based on the definitions set for the above.

Common alloy sheet is currently classifiable under HTSUS subheadings 7606.11.3060, 7606.11.6000, 7606.12.3096, 7606.12.6000, 7606.91.3095, 7606.91.6095, 7606.92.3035, and 7606.92.6095. Further, merchandise that falls within the scope of the Order may also be entered into the United States under HTSUS subheadings 7606.11.3030, 7606.12.3015, 7606.12.3025, 7606.12.3035, 7606.12.3091, 7606.91.3055, 7606.91.6055, 7606.92.3025, 7606.92.6055, 7607.11.9090. Although the HTSUS subheadings are provided for convenience and customs purposes, the written description of the scope of the Order is dispositive.

Preliminary Results of CCR and Intent To Revoke the CAAS AD Germany Order, in Part

Pursuant to section 751(d)(1) of the Act, and 19 CFR 351.222(g), Commerce may revoke an order, in whole or in part, based on a review under section 751(b) of the Act ( i.e., a CCR). Section 751(b)(1) of the Act requires a CCR to be conducted upon receipt of a request which shows changed circumstances sufficient to warrant a review. Section 782(h)(2) of the Act gives Commerce the authority to revoke an order if producers accounting for substantially all of the production of the domestic like product have expressed a lack of interest in the order. Section 351.222(g) of Commerce's regulations provides that Commerce will conduct a CCR under 19 CFR 351.216, and may revoke an order (in whole or in part), if it concludes that: (i) producers accounting for substantially all of the production of the domestic like product to which the order pertains have expressed a lack of interest in the relief provided by the order, in whole or in part; or (ii) if other changed circumstances sufficient to warrant revocation exist. Thus, both the Act and Commerce's regulations require that “substantially all” domestic producers express a lack of interest in the order for Commerce to revoke the order, in whole or in part.^[8] Commerce has interpreted “substantially all” to mean producers accounting for at least 85 percent of the total U.S. production of the domestic like product covered by the order.^[9]

Information on the record indicates that the Aluminum Association and its individual members, as well as Kaiser Aluminum Corporation and Jupiter Aluminum Corporation—two U.S. producers of CAAS that are not part of the Aluminum Association—(collectively Domestic Producers), do not oppose Kodak's exclusion request. Moreover, record information indicates that in 2022 the Domestic Producers accounted for at least 85 percent of the total U.S. production of the domestic like product covered by the Order.^[10]

In light of the above evidence and in the absence of any interested party comments claiming that the Domestic Producers do not account for substantially all of the production of the domestic like product to which the CAAS AD Germany Order pertains, we preliminarily determine that producers accounting for substantially all of the production of the domestic like product to which the CAAS AD Germany Order pertains lack interest in the relief provided by the CAAS AD Germany Order with respect to the lithographic-grade aluminum sheet identified by Kodak. Thus, we preliminarily determine that changed circumstances warrant revocation of the CAAS AD Germany Order, in part, with respect to the lithographic-grade aluminum sheet identified by Kodak.

Accordingly, we are notifying the public of our intent to revoke the CAAS AD Germany Order, in part, with respect to the following lithographic-grade aluminum sheet and include the following exclusion language in the scope of the CAAS AD Germany Order:

Also excluded from the scope of the Order is lithographic-grade aluminum sheet that meets the following criteria: (i) a Copper (Cu) content of no more than 0.01 percent, a Zinc (Zn) content of ≤0.05%, a Silicon (Si) content of 0.05%–0.20% and an Iron (Fe) content of 0.30%–0.50%; (ii) a thickness between 0.267 mm–0.3705 mm, (iii) a width of 500 mm–1650 mm, (iv) a maximum wave height of no more than 3.0 mm, (v) a tensile strength of 130 MPa or more (after baking), and (vi) a surface roughness less than or equal to Ra 0.26 µm.

We have not included the language regarding end-use certifications proposed by Kodak and supported by the Aluminum Association in the above exclusion language. Commerce's general practice is not to use end-use language in scopes ^[11] or end-use certifications because such certifications “are difficult to administer and to enforce” ^[12] and “depend on a generally un-verifiable supposition about the end-use of individual sales, and would be subject to manipulation.” ^[13] While Commerce has implemented end-use certifications in some proceedings, it does so under limited circumstances ^[14] including where “evidence had been proffered that would provide a reasonable basis to believe or suspect that substitution was occurring, and then would only apply the program {( i.e., end-use certification program)} to products for which such evidence existed.” ^[15] No such evidence has been provided in this review.

Moreover, Kodak stated that “{l}ithographic-grade aluminum sheet is a niche product that is made to stringent specifications and is distinguishable from other aluminum sheet products” ^[16] and the physical and chemical characteristics in the proposed scope exclusion language were “narrowly tailored to cover only lithographic-grade aluminum sheet.” ^[17] Neither Kodak, nor the Aluminum Association, has explained why the physical and chemical characteristics of lithographic-grade aluminum sheet included in the above scope exclusion do not sufficiently distinguish the product from subject CAAS.

Application of Revocation

Kodak requested retroactive application of this partial revocation starting October 15, 2020, the date of publication in the Federal Register of the preliminary determination in the underlying investigation and the date of institution of provisional measures.^[18] Section 751(d)(3) of the Act provides that “{a} determination under this section to revoke an order . . . shall apply with respect to unliquidated entries of the subject merchandise which are entered, or withdrawn from warehouse, for consumption on or after the date determined by the administering authority.” Commerce's general practice is to instruct U.S. Customs and Border Protection (CBP) to liquidate without regard to antidumping and/or countervailing duties, and to refund any estimated antidumping and/or countervailing duties, on all unliquidated entries of the merchandise covered by a revocation that are not covered by the final results of an administrative review or automatic liquidation instruction.^[19] However, Commerce has exercised its discretion and deviated from this general practice if the particular facts of a case have implications for the effective date of the partial revocation selected by Commerce.^[20] Specifically, when selecting the effective date for partial revocation, Commerce has considered factors such as the effective date proposed by the petitioner (and/or the effective date agreed to by all parties),^[21] the existence of unliquidated entries dating back to the requested effective date,^[22] whether an interested party requested the effective date of the revocation,^[23] and whether the requested effective date creates potential administrability issues ( e.g., the products covered by the partial revocation are in the sales database used in the dumping margin calculations for a completed administrative review with a period of review that overlaps with the date requested).^[24]

The Domestic Producers have not proposed an effective date or specifically agreed to the effective date proposed by Kodak, Kodak has not provided any evidence of unliquidated entries dating back to the requested effective date, and the German producer from which Kodak obtains the lithographic-grade aluminum sheet, Speira GmbH,^[25] is currently under review in the administrative review of the CAAS AD Germany Order covering the period April 1, 2022 through March 31, 2023.^[26] Given the forgoing, we preliminarily determine to follow Commerce's general practice and apply the partial revocation to all unliquidated entries of the merchandise covered by this revocation that are not covered by the final results of an administrative review or automatic liquidation instruction ( i.e., unliquidated entries on or after April 1, 2023).^[27]

Public Comment

Interested parties are invited to comment on these preliminary results of review in accordance with 19 CFR 351.309(c)(1)(ii). Written comments may be submitted no later than 14 days after the date of publication of these preliminary results of review in the Federal Register . Rebuttal comments, limited to issues raised in written comments, may be filed no later than five days after the due date for comments.^[28] All submissions must be filed electronically using Enforcement and Compliance's Antidumping and Countervailing Duty Centralized Electronic Service System (ACCESS).^[29] ACCESS is available to registered users at https://access.trade.gov. An electronically filed document must be successfully received in its entirety by ACCESS, by 5 p.m. Eastern Time on the deadlines set forth in this notice.

Interested parties who submit case or rebuttal briefs must submit: (1) a table of contents listing each issue discussed in the brief; and (2) a table of authorities.^[30] As provided under 19 CFR 351.309(c)(2) and (d)(2), in prior proceedings we have encouraged interested parties to provide an executive summary of their brief that should be limited to five pages total, including footnotes. In this review, we instead request that interested parties provide at the beginning of their briefs a public, executive summary for each issue raised in their briefs.^[31] Further, we request that interested parties limit their executive summary of each issue to no more than 450 words, not including citations. We intend to use the executive summaries as the basis of the comment summaries included in the issues and decision memorandum that will accompany the final results in this review. We request that interested parties include footnotes for relevant citations in the executive summary of each issue. Note that Commerce has amended certain of its requirements pertaining to the service of documents in 19 CFR 351.303(f).^[32]

Final Results of the CCR

Commerce will issue the final results of this CCR, which will include its analysis of any written comments, no later than 270 days after the date on which this review was initiated.^[33] If, in the final results of this review, Commerce continues to determine that changed circumstances warrant the revocation of the CAAS AD Germany Order, in part, we will instruct CBP to liquidate without regard to antidumping duties, and to refund any estimated antidumping duties deposited on, all unliquidated entries of the merchandise covered by the revocation that are not covered by the final results of an administrative review or an automatic liquidation instruction to CBP. The current requirement for cash deposits of estimated antidumping duties on all entries of subject merchandise will continue unless it is modified pursuant to the final results of this CCR.

Notification to Interested Parties

These preliminary results of changed circumstances review and this notice are published in accordance with sections 751(b)(1) and 777(i) of the Act and 19 CFR 351.216, 19 CFR 351.221(c)(3), and 19 CFR 351.222.

Dated: January 30, 2024.

Abdelali Elouaradia,

Deputy Assistant Secretary for Enforcement and Compliance.

Footnotes

1.   See Common Alloy Aluminum Sheet from Bahrain, Brazil, Croatia, Egypt, Germany, India, Indonesia, Italy, Oman, Romania, Serbia, Slovenia, South Africa, Spain, Taiwan and the Republic of Turkey: Antidumping Duty Orders,86 FR 22139 (April 27, 2021) ( CAAS AD Germany Order or Order).

2.   See Kodak's Letter, “Request for Expedited Changed Circumstances Review,” dated May 9, 2023 (CCR Request); see also Kodak's Letter, “Supplemental Questionnaire Response,” dated June 9, 2023 (Kodak's Supplemental Questionnaire Response).

3.   See Memorandum, “Proposed Exclusion Language,” dated July 24, 2023.

4.   See Common Alloy Aluminum Sheet from Germany: Notice of Initiation of Changed Circumstances Review, and Consideration of Revocation, in Part, of the Antidumping Duty Order,88 FR 49446 (July 31, 2023) ( Initiation Notice).

5.   Id., 88 FR at 49448.

6.   See Aluminum Association's Letter, “Petitioners' Response to Department's Initiation Notice,” dated August 30, 2023 (Aluminum Association's Comments) and Kodak's Letter, “Comments on Changed Circumstances Review,” dated August 30, 2023 (Kodak's Comments).

7.   See Kodak's Letter, “Rebuttal Comments on Changed Circumstances Review,” dated September 6, 2023.

8.   See section 782(h) of the Act; and 19 CFR 351.222(g).

9.   See, e.g., Honey from Argentina; Antidumping and Countervailing Duty Changed Circumstances Reviews; Preliminary Intent to Revoke Antidumping and Countervailing Duty Orders,77 FR 67790, 67791 (November 14, 2012), unchanged in Honey from Argentina; Final Results of Antidumping and Countervailing Duty Changed Circumstances Reviews; Revocation of Antidumping and Countervailing Duty Orders,77 FR 77029 (December 31, 2012).

10.   See Kodak's Supplemental Questionnaire Response at 1 and Exhibit 1; see also Aluminum Association's Comments at 2 and Attachment 1.

11.   See Raw Flexible Magnets from the People's Republic of China: Final Affirmative Countervailing Duty Determination,73 FR 39667 (July 10, 2008), and accompanying Issues and Decision Memorandum (IDM) at “Scope Comments” (“{a}s an initial matter, the Department does not generally define subject merchandise by end-use application.”).

12.   See Certain New Pneumatic Off-The-Road Tires from the People's Republic of China: Final Affirmative Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances,73 FR 40485 (July 15, 2008), and accompanying IDM at Comment 19.

13.   Id.

14.   Id. (“{a}lthough the Department has implemented such certification programs {( i.e., end-use certification programs)} in the past, we generally do so only in limited circumstances.”).

15.   Id.; see also Carbon and Alloy Seamless Standard, Line and Pressure Pipe (Under 4 1/2 Inches) from Japan and Romania: Final Results of the Expedited Fourth Sunset Reviews of the Antidumping Duty Orders, 88 FR 3970 (January 23, 2023), and accompanying IDM at “Scope of the Orders ” (“{w}ith regard to the excluded products listed above, {Commerce} will not instruct CBP to require end-use certification until such time as {the petitioner} or other interested parties provide to {Commerce} a reasonable basis to believe or suspect that the products are being used in a covered application.”).

16.   See CCR Request at 5.

17.   See Kodak's Comments at 6.

18.   See CCR Request at 14–15.

19.   See e.g., Certain Pasta from Italy: Final Results of Countervailing Duty Changed Circumstances Review and Revocation, In Part,76 FR 27634 (May 12, 2011); Stainless Steel Bar from the United Kingdom: Notice of Final Results of Changed Circumstances Review and Revocation of Order, in Part,72 FR 65706 (November 23, 2007); Notice of Final Results of Antidumping Duty Changed Circumstances Review and Revocation of Order In Part: Certain Corrosion-Resistant Carbon Steel Flat Products from Germany,71 FR 66163 (November 13, 2006); Notice of Final Results of Antidumping Duty Changed Circumstances Reviews and Revocation of Orders in Part: Certain Corrosion-Resistant Carbon Steel Flat Products from Canada and Germany,71 FR 14498 (March 22, 2006); Notice of Final Results of Antidumping Duty Changed Circumstances Review, and Determination to Revoke Order in Part: Certain Cased Pencils from the People's Republic of China,68 FR 62428 (November 4, 2003).

20.   See section 751(d)(3) of the Act; Itochu Building Products v. United States, Slip Op. 14–37 at 12 (CIT April 8, 2014) ( Itochu) (“The statutory provision, as discussed above, provides Commerce with discretion in the selection of the effective date for a partial revocation following a changed circumstances review, but that discretion may not be exercised arbitrarily so as to decide the question presented without considering the relevant and competing considerations.”).

21.   See, e.g., Carbon and Certain Alloy Steel Wire Rod from Brazil, Canada, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine: Final Results of Changed Circumstances Review,68 FR 64079 (November 12, 2003); Stainless Steel Hollow Products from Sweden; Termination of Antidumping Duty Administrative Reviews, Final Results of Changed Circumstances Antidumping Duty Administrative Review, and Revocation In Part of Antidumping Duty Order,60 FR 42529 (August 16, 1995).

22.   See Steel Wire Garment Hangers from the People's Republic of China: Final Results of Changed Circumstances Review, and Revocation in Part of Antidumping Duty Order,74 FR 50956 (October 2, 2009); Notice of Final Results of Antidumping Duty Changed Circumstances Review, and Determination To Revoke Order in Part: Certain Cased Pencils from the People's Republic of China,71 FR 13352 (March 15, 2006); Stainless Steel Sheet and Strip in Coils from Japan: Final Results of Changed Circumstance Antidumping Duty Review, and Determination To Revoke Order in Part,65 FR 77578 (December 12, 2000).

23.   See Large Newspaper Printing Presses and Components Thereof, Whether Assembled or Unassembled, from Japan: Final Results of Changed Circumstances Antidumping Duty Administrative Review and Intent To Revoke Antidumping Duty Order, In Part,64 FR 72315 (December 27, 1999).

24.   See Itochu, Slip Op. 14–37 at 3.

25.   See CCR Request at 14–15.

26.   See Initiation of Antidumping and Countervailing Duty Administrative Reviews,88 FR 38021, 38023 (June 12, 2023).

27.  Commerce issued the final results of the administrative review of the CAAS AD Germany Order covering the period October 15, 2020 through March 31, 2022 on November 3, 2023. See Common Alloy Aluminum Sheet from Germany: Final Results of Antidumping Duty Administrative Review; 2020–2022,88 FR 77556 (November 13, 2023). Commerce issued the automatic liquidation instruction for the administrative review of the CAAS AD Germany Order covering the period April 1, 2022 through March 31, 2023 on July 21, 2023. See CBP Message 3202416, “Automatic Liquidation Instructions,” dated July 21, 2023.

28.   See19 CFR 351.309(d); see also Administrative Protective Order, Service, and Other Procedures in Antidumping and Countervailing Duty Proceedings,88 FR 67069, 67077 (September 29, 2023) ( APO and Final Service Rule).

29.   See, generally,19 CFR 351.303.

30.   See 19 351.309(c)(2) and (d)(2).

31.  We use the term “issue” here to describe an argument that Commerce would normally address in a comment of the Issues and Decision Memorandum.

32.   See APO and Final Service Rule.

33.   See19 CFR 351.216(e).