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McLean-Fogg Ruling Threatens Tariff Calculations

To properly explain this ruling, let me start with a little background.  Every year the Department of Commerce (DOC) conducts an administrative review on the anti-dumping (AD) and countervailing (CVD) duty rates.  The review begins with the DOC inviting Chinese exporters and U.S. importers to petition the DOC for a separate rate (i.e., a rate separate from the China-wide rate (“PRC-rate”)).  In our case the number of requests has ranged from 50 to 70 or so in the second review covering up to 150 companies for which reviews have been request and  a similar number in the third annual review just getting underway.  From this pool of requests the DOC will select two mandatory respondents to review and provide production data, sales records, and a myriad of other documentation the DOC will use to calculate dumping and subsidy rates for the current review period.  At the end of the review, the two mandatory respondents will be forced to pay the new calculated assessment rate covering imports of their products over the review period.  The new rates calculated also serves as the new cash deposit rate for future imports from those producers. All respondents that were not selected, but have proven that they are not controlled by the PRC and entitled to a “separate-rate” will receive the  “all others rate.”  The “all others rate” is a weighted average of the two mandatory respondents rates.   In simple terms, if one of the mandatory respondents receives a rate of 20% and the other receives 10% , and if they are weighted as equal, the all other rate will be 15%.  A company not selected as a mandatory respondent, but who wants to have a company-specific rate calculated may request to be treated as a “voluntary” respondent.  If the Department has sufficient resources to add another respondent to the review and agree to accept voluntary responses, these voluntary respondents will be treated separately, and will receive a rate calculated only for them.  Under the Department regulations, the resulting rate developed for a voluntary respondent is not used in the weighted averaging for the ”all others rate”.  The DOC has followed this practice for many years due to the obvious “gaming” that could occur.

Earlier this month United States Court of Appeals for the Federal Circuit (CAFC) rendered a decision in the MacLean Fogg v. U.S. case that threatens U.S. tariffs on Chinese extrusions entering the United States. The decision, released June 3, 2014, stems from an appeal by the Chinese respondents in connection with the China-wide all-others CVD rate. The previous Court of International Trade (CIT) appeal resulted in the DOC lowering the rate from 347% to 147%.  In that case, none of the mandatory respondents participated; instead the Department calculated CVD rates for two voluntary respondents.  The other non-reviewed companies argued that instead of receiving the PRC-wide CVD rate of 147%, they should have received an “all-others” rate reflecting the weighted-average of the two voluntary respondents (i.e., 8.5%)  The CAFC took the CIT’s decision even further, invalidating the DOC’s regulation with regard to the DOC’s methodology of excluding voluntary respondents in the “all-others” rate calculation. Specifically, though the statute provides that the all-others rate should include any “individually”-calculated margins, the CAFC attacked the DOC’s regulation for limiting the statute’s directive to include “individually” calculated rates to include only mandatory – and excluding voluntary – respondents’ rates in its all-others calculation. The CAFC has reversed and remanded this proceeding to the DOC for further proceedings and recalculation of the all-others margin. This determination represents a blatant overstep by the CAFC, especially given that the decision overturns more than 20 years of DOC practice and regulatory construct.

Specific to our case, the impacts could be felt in our pending second administrative review, which is well underway. In fact, we expect a preliminary decision from the DOC on the AD and CVD case this week.  On the AD side, both mandatory respondents pulled out in the last few months leaving only Kromet as the sole voluntary respondent.    Ordinarily, the rate that the DOC will calculate for Kromet will only apply to Kromet.  However, in light of this decision, the rate will apply to ”all others” as well.  That assumes this ruling stands.

Last week our lead attorney on this case, Robert DeFrancesco, and I made calls to staffers of key Senators in U.S. trade matters.  They agreed to intervene at the DOC on our behalf to make our case.  With the administrative review preliminary decision expected so soon, and considering the timing of the CAFC’s ruling, there is little we can do. However, the expected DOC decision is only the preliminary ruling.  The full ruling for the second annual review is not expected until late this year.  That gives us time to rally support and create a legal strategy to overturn the MacLean-Fogg decision.  There will certainly be more to follow on this, and I will be asking you for your support as soon as a strategy is developed.

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