By Paul Fudacz, Partner, Braumiller Law Group
On September 27, 2024, Commerce announced its affirmative final determination in the ongoing AD / CVD aluminum extrusions investigation. On the same day Commerce also posted its Final Scope Issues and Decision Memorandum. In both, Commerce almost uniformly deferred to Petitioners in dismissing numerous comments of interested parties primarily challenging the scope of the investigation on a wide range of legal theories and practical considerations.
Many importer comments argued that the scope is overreaching and covers merchandise that the petitioners do not even produce, or that include aluminum extrusions that have undergone a substantial transformation when assembled into new and different final products. Other comments argued that the scope will be impossible to administer by CBP, or importer compliance in breaking out extrusion content value from final goods value will be overly burdensome or in many cases impossible. In tota,l 50 separate comments were addressed in the final scope decision memorandum with nearly all Commerce determinations deferential to Petitioners.
The last significant phase of the investigation now falls to the International Trade Commission who must make a final determination within 45 days of the Commerce final determination. If negative, the investigation terminates, however a more likely outcome is an affirmative determination by the ITC with the investigation proceeding to final orders.
Given the extremely broad scope of the investigation and the numerous legal issues raised by interested parties, in the event of an affirmative ITC injury determination, future litigation is almost a certainty.
In terms of immediate importer compliance requirements, affirmative CVD preliminary determinations were published on March 11, 2024, and affirmative AD preliminary determinations for the balance were published May 7, 2024, both requiring the suspension of liquidation and the depositing of CVD / AD on and after the respective publication dates (note – suspension of liquidation / depositing of duties on the CVD portion was lifted July 9, 2024 and won’t resume until an affirmative ITC injury determination).
At present there appears to be widespread confusion in the ranks of the importer community with regards to obtaining reliable information from suppliers as to the “aluminum extrusion portion” of their imported merchandise or specifically how to value the aluminum extrusion portion of a larger final good. The petitioners have appeared to envision idyllic purchasing scenarios where either importers have input into the manufacturing of their imports access to design criteria and costed bills of material, or where importers can otherwise rely on their purchasing power to assure uniform cooperation from overseas vendors in providing the necessary cost of production information related to the extrusions. Based on the multitude of importer comments to the contrary however, the workable scenarios envisioned by the petitioners do not appear to approach reality.
Further, even though deposits of AD / CVD have been required since the above March 11 (presently lifted) and May 7 dates, there has been little to no formal guidance related to proper methodology to calculate the extrusion portion of a larger assembly. One might think it reasonable for CBP to tread lightly in terms of enforcement during these uncertain times or at least until a final determination is made by the ITC, however as there are affirmative legal compliance requirements in place right now, importers should be taking all necessary steps to assure compliance today, and if needed, on an ongoing basis.
