The Secretary’s press release presents the agency’s key findings and lists the agency’s various recommended remedies. With respect to steel imports, the Department of Commerce recommends three alternative options to the President:

1. A global tariff of at least 24% on all steel imports from all countries, or
2. A tariff of at least 53% on all steel imports from 12 countries (Brazil, China, Costa Rica, Egypt, India, Malaysia, Republic of Korea, Russia, South Africa, Thailand, Turkey and Vietnam) with a quota by product on steel imports from all other countries equal to 100% of their 2017 exports to the United States, or
3. A quota on all steel products from all countries equal to 63% of each country’s 2017 exports to the United States.

1. A tariff of at least 7.7% on all aluminum exports from all countries, or
2. A tariff of 23.6% on all products from China, Hong Kong, Russia, Venezuela and Vietnam. All the other countries would be subject to quotas equal to 100% of their 2017 exports to the United States, or
3. A quota on all imports from all countries equal to a maximum of 86.7% of their 2017 exports to the United States.

The Commerce Department’s reports also recommend that a process be set up to allow Secretary Ross to grant requests by U.S. companies to exclude certain products from whatever remedy President Trump ultimately imposes.

The Kelley Drye International Trade team is closely reviewing these reports and monitoring any further developments.

Capella did not participate in U.S. Department of Commerce’s (“Commerce”) 2011-2012 administrative review of aluminum extrusions from China. As a result, its entries were subject to the 374.15% “all others” rate under the countervailing duty order. In connection with other litigation, the 374.15% “all others” rate was reduced to 7.37% in October 2015 based on challenges brought by several other importers of aluminum extrusions.

Capella, however, challenged the countervailing duty margin applied to its entries and filed two complaints at the U.S. Court of International Trade (“CIT”) challenging Commerce’s liquidation instructions that incorporated that rate. In its complaints, Capella asserted that Commerce could not lawfully apply the 374.15% rate to Cappella’s entries because the disparity between that rate and the litigated 7.37% rate was too great. The CIT dismissed Capella’s complaints for failure to state a claim. In its decisions, the CIT found that the statute contemplates that the CVD rate Commerce established in its final determination is the rate that applies to pre-Timken notice entries when liquidation is not 1) enjoined by a court decision, or 2) the subject of administrative review. Further, because Capella’s imports were entered before publication of the Timken notice, the company did not request administrative review of its entries, and it did not participate in the rate-lowering litigation – it could not claim the benefit of the lower all-others rate.

In its decision, the Federal Circuit upheld the CIT’s two decisions dismissing Capella’s complaints. The Federal Circuit found that, based on the facts of the case, the statute and legislative history supported the CIT’s findings. Specifically, like the CIT, the CAFC determined that because Capella did not participate in the litigation challenging the 374.15% all others rate, and because Capella’s pre-Timken notice entries were not enjoined by a court order, its entries were properly liquidated “as entered” at the “all others” rate of 374.15% identified in the final determination

The Department previously made a preliminary affirmative determination that Chinese exporters and producers of aluminum foil were receiving countervailable subsidies at rates ranging from 16.56 to 80.97 percent.

As a result of the Department’s affirmative preliminary finding of dumping, the agency will instruct U.S. Customs and Border Protection to begin collecting cash deposits at the applicable rates with certain adjustments based on the preliminary calculated subsidy rates.

The Department’s final determinations in the on-going countervailing duty and antidumping investigations are scheduled to be announced on February 22, 2018.

As part of its investigation into the alleged dumping of aluminum foil from China, the Department initiated an inquiry into whether China should continue to be treated as a non-market economy (“NME”) for purposes of the U.S. antidumping law. In connection with its preliminary affirmative determination that aluminum foil from China is being sold at unfairly low prices in the United States, the Department of Commerce also announced its decision to continue to treat China as an NME. Because the Department already solicited comments and information from the public concerning this issue, it will not reconsider its decision or solicit additional comments or information.

The petitioner is the Aluminum Enforcement Working Group and is represented by John M. Herrmann, Paul C. Rosenthal, Kathleen W. Cannon, Grace W. Kim and Joshua R. Morey of Kelley Drye & Warren LLP.

Witness testimony covered several topics including the negative effects of China’s aluminum overcapacity, the coverage and breadth of any remedies imposed as a result of the investigation, including that aluminum imports from Canada and Europe should be exempt.

The deadline for written comments was Friday, June 23, 2017. With the record closed, and, given the urgent nature of the investigation, Secretary Ross is expected to issue his report to President Trump in the near future.

Please contact Kelley Drye’s International Trade team for additional information concerning the Section 232 investigation on aluminum imports and the potential remedies that may be imposed.

The Commerce Department initiated the Section 232 investigations on steel and aluminum at the end of April. Normally, the agency may take up to 270 days to conduct its investigation and issue findings to the President. In this unique situation, however, the agency is conducting expedited investigations which is why its findings will be issued much more quickly than in past Section 232 investigations.

In the course of a Section 232 investigation, the Commerce Department examines a number of factors to determine whether imports of particular merchandise threaten the national security. These include, but are not limited to: requirements of the defense and essential civilian sectors; growth requirements of the domestic industry(ies) to meet national defense requirements; quantity, availability, character, and use of a particular imported article, or other circumstances related to its importation, and their effect on the national security; the impact of foreign competition on the economic welfare of the essential domestic industry; the loss of skills and investment in government revenue; and the displacement of any domestic products causing substantial unemployment, decrease in the revenues of government, loss of investment or specialized skills and productive capacity.

Indications are the Commerce Department will recommend to the President that some form of action be taken with respect to imports of steel and aluminum. What remains to be answered is the specific type of action recommended to the President, including, the particular steel and aluminum imports subject to action, the foreign countries from which imports are affected, and the length of time or duration of any recommended action in each investigation.