Case: 19-2129 Document: 78 Page: 1 Filed: 11/06/2020
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
PERFECTUS ALUMINUM, INC.,
Plaintiff-Appellant
v.
UNITED STATES, ALUMINUM EXTRUSIONS FAIR
TRADE COMMITTEE,
Defendants-Appellees
______________________
2019-2129
______________________
Appeal from the United States Court of International
Trade in No. 1:18-cv-00085-GSK, Judge Gary S.
Katzmann.
______________________
Decided: November 6, 2020
______________________
THOMAS STEVEN BIEMER, Dilworth Paxson LLP, Phila-
delphia, PA, argued for plaintiff-appellant. Also repre-
sented by JAMES KEVIN HORGAN, ALEXANDRA H. SALZMAN,
DeKieffer & Horgan, PLLC, Washington, DC; DAVID JOHN
CREAGAN, White & Williams LLP, Philadelphia, PA.
AIMEE LEE, International Trade Field Office, Commer-
cial Litigation Branch, Civil Division, United States De-
partment of Justice, New York, NY, argued for defendant-
Case: 19-2129 Document: 78 Page: 2 Filed: 11/06/2020
2 PERFECTUS ALUMINUM, INC. v. UNITED STATES
appellee United States. Also represented by JEFFREY B.
CLARK, JEANNE DAVIDSON, LOREN MISHA PREHEIM, Wash-
ington, DC; DANIEL CALHOUN, Office of the Chief Counsel
for Trade Enforcement and Compliance, United States De-
partment of Commerce, Washington, DC.
ROBERT E. DEFRANCESCO, III, Wiley Rein, LLP, Wash-
ington, DC, argued for defendant-appellee Aluminum Ex-
trusions Fair Trade Committee. Also represented by ALAN
H. PRICE, TESSA V. CAPELOTO, CYNTHIA CRISTINA GALVEZ,
DERICK HOLT, ADAM MILAN TESLIK, ELIZABETH V. BALTZAN,
ELIZABETH S. LEE.
______________________
Before LOURIE, HUGHES, and STOLL, Circuit Judges.
LOURIE, Circuit Judge.
Perfectus Aluminum, Inc. (“Perfectus”) appeals from a
decision by the United States Court of International Trade
(“Trade Court”) sustaining a final scope ruling issued by
the United States Department of Commerce (“Commerce”).
See Perfectus Aluminum, Inc. v. United States,
391
F. Supp. 3d 1341 (Ct. Int’l Trade 2019) (“Trade Court Deci-
sion”). Commerce held in its final scope ruling that certain
aluminum pallets fall within the scope of Commerce’s May
2011 antidumping and countervailing duty orders on alu-
minum extrusions from the People’s Republic of China. See
Antidumping and Countervailing Duty Orders on Alumi-
num Extrusions from the People’s Republic of China: Final
Scope Ruling on Certain Aluminum Pallets (Dep’t of Com-
merce June 13, 2017) (“Final Scope Ruling”) (J.A. 19–34).
For the reasons stated below, we affirm.
BACKGROUND
In 2011, Commerce issued an antidumping duty order
and a countervailing duty order (the “AD/CVD Orders”) on
aluminum extrusions from the People’s Republic of China.
See Aluminum Extrusions from the People’s Republic of
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PERFECTUS ALUMINUM, INC. v. UNITED STATES 3
China: Antidumping Duty Order, 76 Fed. Reg. 30650 (Dep’t
of Commerce May 26, 2011); Aluminum Extrusions from
the People’s Republic of China: Countervailing Duty Order,
76 Fed. Reg. 30653 (Dep’t of Commerce May 26, 2011). The
scope of the AD/CVD Orders reads, in relevant part:
The merchandise covered by the order[s] is alumi-
num extrusions which are shapes and forms, pro-
duced by an extrusion process, made from
aluminum alloys having metallic elements corre-
sponding to the alloy series designations published
by The Aluminum Association commencing with
the numbers 1, 3, and 6 . . . .
AD/CVD Orders, 76 Fed. Reg. at 30650. 1 Also relevant
here, the AD/CVD Orders set forth a specific exclusion from
their scope, referred to as the “finished merchandise exclu-
sion,” which provides:
The scope . . . excludes finished merchandise con-
taining aluminum extrusions as parts that are fully
and permanently assembled and completed at the
time of entry, such as finished windows with glass,
doors with glass or vinyl, picture frames with glass
pane and backing material, and solar panels.
Id. at 30651 (emphasis added).
In March 2017, the Aluminum Extrusions Fair Trade
Committee (“AEFTC”) filed a request asking Commerce to
issue a scope ruling finding that 6xxx series extruded alu-
minum profiles, which are cut-to-length and welded to-
gether in the form of pallets, are within the scope of the
1 For purposes of this appeal, the Antidumping Duty
Order and the Countervailing Duty Order are identical in
scope. For ease of reference, we cite the Antidumping Duty
Order in the Federal Register.
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4 PERFECTUS ALUMINUM, INC. v. UNITED STATES
AD/CVD Orders. 2 In June 2017, Commerce issued its final
scope ruling, in which it determined that the Series 6xxx
Pallets are within the scope of the AD/CVD Orders. Final
Scope Ruling, J.A. 19–34.
In its scope ruling, Commerce found that the Series
6xxx Pallets “satisfy the definition of the scope of the
[AD/CVD] Orders because they are extruded aluminum
profiles consisting of series 6xxx aluminum alloy which are
cut-to-length and welded together.”
Id., J.A. 31. Com-
merce further explained that, “although the products are
identified and referenced by their alleged end use, regard-
less of whether they are ready for use at the time of impor-
tation, this does not remove the products from the scope of
the [AD/CVD] Orders.”
Id. Thus, Commerce found that
the Series 6xxx Pallets are “included in the [AD/CVD] Or-
ders based on the plain language of the scope.”
Id.
Commerce also considered whether the Series 6xxx
Pallets qualify for the finished merchandise exclusion.
Commerce determined that, to avoid reading the term “as
parts” completely out of the language of the finished mer-
chandise exclusion, that term must mean that “excluded
‘finished merchandise’ must contain both aluminum extru-
sions ‘as parts’ as well as an additional non-extruded alu-
minum component.”
Id. Moreover, Commerce explained
that “an interpretation which would allow products which
consist entirely of aluminum extrusions to be excluded
from the scope of the [AD/CVD] Orders would allow the fin-
ished merchandise exclusion to swallow the rule embodied
by the scope.”
Id., J.A. 32. Commerce concluded that “be-
cause the products at issue are only composed of aluminum
extrusions, they do not meet the requirements for the fin-
ished merchandise exclusion.”
Id.
2 We refer to these products at issue as the “Series
6xxx Pallets.”
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PERFECTUS ALUMINUM, INC. v. UNITED STATES 5
Perfectus sought judicial review of the final scope rul-
ing by the Trade Court. In July 2019, the Trade Court is-
sued its final judgment sustaining Commerce’s final scope
ruling. The Trade Court agreed with Commerce’s reason-
ing that the Series 6xxx Pallets fit within the plain lan-
guage of the AD/CVD Orders and do not qualify for the
finished merchandise exclusion. Trade Court
Decision, 391
F. Supp. 3d at 1353–55. The Trade Court further held that
Commerce acted properly under the regulations set forth
in 19 C.F.R. § 351.225 when it issued a scope ruling with-
out initiating a formal scope inquiry.
Id. at 1355–56. Fi-
nally, the Trade Court found that Commerce properly
issued a scope ruling because the Series 6xxx Pallets were
in existence and were not hypothetical products.
Id. at
1356–57.
Perfectus appealed. We have jurisdiction under 28
U.S.C. § 1295(a)(5).
DISCUSSION
Upon receipt of an application for a scope ruling, Com-
merce’s inquiry proceeds in steps. Commerce begins its in-
quiry by determining whether the scope of the order
contains an ambiguity. Meridian Prods., LLC v. United
States,
851 F.3d 1375, 1381 (Fed. Cir. 2017). If the scope is
unambiguous, it governs.
Id. “Because the meaning and
scope of the Orders are issues particularly within Com-
merce’s expertise and special competence, we grant Com-
merce substantial deference with regard to its
interpretation of its own Orders.” Whirlpool Corp. v.
United States,
890 F.3d 1302, 1308 (Fed. Cir. 2018) (citing
Meridian, 851 F.3d at 1381–82). “[Commerce] enjoys sub-
stantial freedom to interpret and clarify its antidumping
orders.” Novosteel SA v. United States,
284 F.3d 1261, 1269
(Fed. Cir. 2002) (quoting Ericsson GE Mobile Commc’ns,
Inc. v. United States,
60 F.3d 778, 782 (Fed. Cir. 1995)).
“We therefore afford ‘significant deference to Commerce’s
interpretation of a scope order,’ so long as Commerce’s
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6 PERFECTUS ALUMINUM, INC. v. UNITED STATES
interpretation is not ‘contrary to the order’s terms’ and
does not ‘change the scope of the order.’” Mid Continent
Nail Corp. v. United States,
725 F.3d 1295, 1300 (Fed. Cir.
2013) (quoting Global Commodity Grp. LLC v. United
States,
709 F.3d 1134, 1138 (Fed. Cir. 2013)).
After determining whether the scope of the order is un-
ambiguous, Commerce proceeds to the two-step test set
forth in 19 C.F.R. § 351.225(k) to determine whether the
product at issue is within the scope. First, Commerce con-
siders the scope language contained in the order, as well as
the sources identified in § 351.225(k)(1), which are the de-
scriptions contained in the petition and how the scope was
defined in the investigation and in determinations issued
by Commerce and the International Trade Commission
(collectively, the “(k)(1) sources”). See
Whirlpool, 890 F.3d
at 1308 (citing Shenyang Yuanda Aluminum Indus. Eng’g
Co. v. United States,
776 F.3d 1351, 1354 (Fed. Cir. 2015)).
If the analysis of the (k)(1) sources is dispositive, Com-
merce issues a final scope ruling. Id.; see also 19 C.F.R.
§ 351.225(d) (“If the Secretary can determine, based solely
upon the application and the descriptions of the merchan-
dise referred to in paragraph (k)(1) of this section, whether
a product is included within the scope of an order . . . , the
Secretary will issue a final ruling as to whether the product
is included within the order . . . .”).
If Commerce’s analysis of the (k)(1) sources is not dis-
positive, then Commerce must initiate a formal scope in-
quiry. See 19 C.F.R. § 351.225(e) (“If the Secretary finds
that the issue of whether a product is included within the
scope of an order . . . cannot be determined based solely
upon the application and the descriptions of the merchan-
dise referred to in paragraph (k)(1) of this section, the Sec-
retary will notify by mail all parties on the Department’s
scope service list of the initiation of a scope inquiry.”); see
also 19 C.F.R. § 351.225(c)(2) (“Within 45 days of the date
of receipt of an application for a scope ruling, the Secretary
will issue a final ruling under paragraph (d) of this section
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PERFECTUS ALUMINUM, INC. v. UNITED STATES 7
or will initiate a scope inquiry under paragraph (e) of this
section.”). During any such formal scope inquiry, Com-
merce will consider the additional factors set forth in
19 C.F.R. § 351.225(k)(2).
When reviewing a Commerce scope ruling, “[w]e apply
the same standard of review as the [Trade Court] . . . ,
though we give due respect to the [Trade Court]’s informed
opinion.”
Meridian, 851 F.3d at 1380–81 (internal quota-
tion marks and citations omitted). “Under that standard,
we uphold a Commerce scope ruling that is supported ‘by
substantial evidence on the record’ and otherwise ‘in ac-
cordance with law.’”
Id. (quoting 19 U.S.C.
§ 1516a(b)(1)(B)(i)). “Substantial evidence is such relevant
evidence as a reasonable mind might accept as adequate to
support a conclusion.” Eckstrom Indus., Inc. v. United
States,
254 F.3d 1068, 1071 (Fed. Cir. 2001) (internal quo-
tation marks and citation omitted).
Here, Commerce determined based on the (k)(1)
sources that the Series 6xxx Pallets are within the scope of
the AD/CVD Orders. Commerce issued a final scope ruling,
and the Trade Court affirmed. On appeal, Perfectus chal-
lenges Commerce’s scope ruling on three grounds. For the
reasons that follow, we find each challenge unpersuasive.
I
For its first challenge, Perfectus contends that Com-
merce erred in finding that the Series 6xxx Pallets are
within the scope of the AD/CVD Orders. Here, Perfectus
makes two alternative arguments. Perfectus first argues
that the Series 6xxx Pallets do not qualify as aluminum
extrusions within the general scope language of the
AD/CVD Orders. Alternatively, Perfectus argues that even
if the Series 6xxx Pallets are within the general scope lan-
guage of the AD/CVD Orders, they meet the requirements
for the finished merchandise exclusion and are thus re-
moved from the scope of the AD/CVD Orders. We address
each alternative argument below.
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8 PERFECTUS ALUMINUM, INC. v. UNITED STATES
A
Regarding the general scope language of the AD/CVD
Orders, Commerce found that the Series 6xxx Pallets are
within the unambiguous plain language because they are
“extruded aluminum profiles consisting of series 6xxx alu-
minum alloy which are cut-to-length and welded together.”
Final Scope Ruling, J.A. 31. We find no error with that
reasonable conclusion, and Perfectus does not dispute it.
Instead, Perfectus argues that the AD/CVD Orders
make a “b[r]ight-line distinction” between unfinished parts
and finished merchandise, and that Commerce impermis-
sibly expanded the scope of the orders by disregarding that
distinction. To support that argument, Perfectus asserts
that “the text of the AD/CVD Orders provides that alumi-
num extrusions are within their scope only if the extru-
sions are ‘parts for final finished products that are
assembled after importation[.]’” Appellant Br. 15 (quoting
and adding emphasis to the AD/CVD Orders). But Perfec-
tus truncates the quote from the AD/CVD Orders by omit-
ting the beginning of the sentence, which actually reads:
Subject aluminum extrusions may be described at
the time of importation as parts for final finished
products that are assembled after importation . . . .
AD/CVD Orders, 76 Fed. Reg. at 30650–51 (emphasis
added). Far from indicating that subject merchandise
must be “parts for final finished products,” the qualifying
term “may be” suggests the exact opposite—i.e., that the
subject merchandise need not be “parts for final finished
products.”
Moreover, Perfectus disregards the sentences sur-
rounding its truncated quote. For example, the AD/CVD
Orders go on to say:
Such parts that otherwise meet the definition of alu-
minum extrusions are included in the scope.
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PERFECTUS ALUMINUM, INC. v. UNITED STATES 9
Id. at 30651 (emphasis added). The AD/CVD Orders also
say:
Subject extrusions may be identified with reference
to their end use . . . . Such goods are subject mer-
chandise if they otherwise meet the scope definition,
regardless of whether they are ready for use at the
time of importation.
Id. (emphasis added). Again, this language indicates that,
contrary to Perfectus’s argument, the general scope lan-
guage is directed at aluminum extrusions generally, with-
out making a bright-line distinction between parts and
finished merchandise. Thus, we find no error with Com-
merce’s conclusion, affirmed by the Trade Court, that the
Series 6xxx Pallets fall within the general scope language
of the AD/CVD Orders.
B
Turning to the finished merchandise exclusion, the lan-
guage of the AD/CVD Orders states that for a product to
qualify for the exclusion it must “contain[] aluminum ex-
trusions as parts that are fully and permanently assembled
and completed at the time of entry.” AD/CVD Orders, 76
Fed. Reg. at 30651. Both Commerce and the Trade Court
found that the language “aluminum extrusions as parts”
means that the finished merchandise exclusion only ap-
plies to products that include aluminum extrusion parts
and also parts made from other materials that are not alu-
minum extrusions. Final Scope Ruling, J.A. 31–32; Trade
Court
Decision, 391 F. Supp. 3d at 1353–55.
Perfectus argues that the Series 6xxx Pallets meet the
only two requirements to qualify for the finished merchan-
dise exclusion, namely, (1) they contain aluminum extru-
sions as parts and (2) they are permanently assembled and
completed at the time of entry. Perfectus argues that Com-
merce impermissibly narrowed the scope of the exclusion
by adding a third requirement that the merchandise also
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10 PERFECTUS ALUMINUM, INC. v. UNITED STATES
contain parts composed of material other than aluminum
extrusions, a requirement which Perfectus argues does not
appear in the language of the AD/CVD Orders. Perfectus
relies on this court’s decision in Whirlpool,
890 F.3d 1302,
and the Trade Court’s decision in Rubbermaid Com. Prods.
LLC v. United States, No. 11-00463,
2015 WL 4478225 (Ct.
Int’l Trade July 22, 2015), as support for its position that
the finished merchandise exclusion applies to products
that contain multiple aluminum extrusion “parts,” even if
there are no parts made from other materials.
The government responds that both Commerce and the
Trade Court recognized that if the finished merchandise
exclusion were applicable to merchandise made entirely
out of aluminum extrusions, then the term “as parts” would
be read out of the language, and the exclusion would en-
tirely swallow the rule established by the AD/CVD Orders.
The government notes that the Whirlpool and Rubbermaid
cases both involved products that contained aluminum ex-
trusions and other materials, and that dicta from those
cases are not controlling here. And the government em-
phasizes the examples provided in the finished merchan-
dise exclusion—“such as finished windows with glass,
doors with glass or vinyl, picture frames with glass pane
and backing material, and solar panels”—all of which in-
disputably contain parts made from materials other than
aluminum extrusions. 3
We agree with the government. We find that Perfec-
tus’s interpretation would allow the finished merchandise
exclusion to swallow the rule established by the AD/CVD
Orders and invite abuse. Simply put, the AD/CVD Orders
were intended to prevent importers from importing alumi-
num extrusions from China without paying antidumping
3 The AEFTC filed a separate responsive brief as-
serting arguments similar to those made by the govern-
ment.
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PERFECTUS ALUMINUM, INC. v. UNITED STATES 11
duties and countervailing duties. See generally AD/CVD
Orders, 76 Fed. Reg. at 30650–53. Yet Perfectus argues for
an interpretation that would allow a product made entirely
from aluminum extrusions to escape the scope of the
AD/CVD Orders if it is made from two aluminum extrusion
“parts” rather than one aluminum extrusion part. Recog-
nizing that Commerce could not have intended that inter-
pretation when it issued the AD/CVD Orders, Commerce
and the Trade Court reasonably read the plain language of
the AD/CVD Orders as preventing that result.
Perfectus relies heavily on this court’s decision in
Whirlpool, but that case is not on point. In Whirlpool, this
court was faced with a narrow question whether the “fas-
teners exception” in the AD/CVD Orders was limited only
to the exclusion for finished goods kits or was also applica-
ble to the finished merchandise exclusion.
Whirlpool, 890
F.3d at 1310–11. But the Whirlpool case involved mer-
chandise composed of aluminum extrusion parts as well as
parts made from other materials, and the court made no
determination regarding whether a product made entirely
from aluminum extrusion parts would be eligible for the
finished merchandise exclusion. See
id. Perfectus’s reli-
ance on Rubbermaid is similarly unavailing, as the Trade
Court in that case elected to not answer this question be-
cause the merchandise at issue was also composed of alu-
minum extrusion parts as well as parts made from other
materials. Rubbermaid,
2015 WL 4478225, at *3 n.2.
We also find it persuasive that the listed examples in
the finished merchandise exclusion are all products that
contain parts made from other materials that are not alu-
minum extrusions. In contrast to those listed examples,
the Series 6xxx Pallets do not contain any parts made from
materials other than aluminum extrusions. We agree with
the Trade Court that, while Perfectus emphasizes the un-
disputed point that the list of examples is not exhaustive,
Perfectus fails to demonstrate why products entirely unlike
the listed examples should nevertheless be included within
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12 PERFECTUS ALUMINUM, INC. v. UNITED STATES
the finished merchandise exclusion. See Trade Court Deci-
sion, 391 F. Supp. 3d at 1355.
Giving the proper deference to Commerce’s interpreta-
tion of its own AD/CVD Orders, see Mid Continent
Nail,
725 F.3d at 1300, and with due respect to the Trade Court’s
informed opinion regarding Commerce’s final scope ruling,
see
Meridian, 851 F.3d at 1380–81, we agree that in order
to qualify for the finished merchandise exclusion a product
must include parts made from other materials that are not
aluminum extrusions. Because the Series 6xxx Pallets are
made entirely from aluminum extrusion parts, they do not
qualify for the finished merchandise exclusion. Thus, we
conclude that the Series 6xxx Pallets are within the scope
of the AD/CVD Orders.
II
For its second challenge, Perfectus contends that Com-
merce erred by issuing a final scope ruling in this case
without initiating a formal scope inquiry. We disagree.
Commerce conducted the analysis prescribed by the
regulations and our case law. Specifically, Commerce de-
termined that the scope of the AD/CVD Orders was not am-
biguous. Final Scope Ruling, J.A. 33 (“[T]his scope ruling
does not present a situation in which Commerce is clarify-
ing what might be considered in relevant part an ambigu-
ous order.”); see also J.A. 31–32 (ruling based on the “plain
language” of the AD/CVD Orders). Commerce considered
the (k)(1) sources to determine whether the Series 6xxx
Pallets were within the scope of the AD/CVD Orders. See
id., J.A. 30 (“The Department examined the language of the
[AD/CVD] Orders, the description of the product contained
in petitioner’s Scope Ruling Request, prior scope rulings,
and the Petitions.”). Because Commerce determined that
the (k)(1) sources were dispositive as to whether the Series
6xxx Pallets were within the scope of the AD/CVD Orders,
Commerce issued a final scope ruling, as required by the
regulations. See 19 C.F.R. § 351.225(c), (d).
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PERFECTUS ALUMINUM, INC. v. UNITED STATES 13
Perfectus argues that Commerce should have initiated
a formal scope inquiry because the AD/CVD Orders are am-
biguous. But Perfectus identifies no legal support for the
proposition that Commerce must initiate a formal scope in-
quiry any time the language of an order is arguably ambig-
uous, or that the question of ambiguity is even material to
Commerce’s decision on whether to initiate a formal scope
inquiry. On the contrary, the regulations indicate that the
only relevant question is whether the (k)(1) sources are dis-
positive. See 19 C.F.R. § 351.225(c)–(e). Here, Commerce
determined that the (k)(1) sources were dispositive, and at
that point Commerce was required to issue a final scope
ruling without initiating a formal scope inquiry.
Id. Per-
fectus is entitled to challenge Commerce’s findings on ap-
peal, as it has done. But even if we agreed with Perfectus
that the language is ambiguous—which, as explained
above, we do not—we still could not conclude that Com-
merce acted inconsistently with the procedure set forth in
the regulations.
Perfectus also argues that Commerce improperly con-
sidered materials other than the (k)(1) sources, including
representations by AEFTC about entry documentation as
well as newspaper reports. But Perfectus cites only the
portions of the final scope ruling where Commerce summa-
rized the parties’ positions. Perfectus fails to point to any
place in the final scope ruling where Commerce actually
relied on any materials outside of the (k)(1) sources to sup-
port its decision. Therefore, we find no error in Commerce’s
decision to issue a final scope ruling without initiating a
formal scope inquiry.
III
For its third challenge, Perfectus contends that Com-
merce should not have issued a scope ruling in this case
because there is no evidence that the Series 6xxx Pallets
are in current production or importation. Perfectus argues
that Commerce deviated from its long-standing policy by
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14 PERFECTUS ALUMINUM, INC. v. UNITED STATES
issuing a scope ruling on products that were only shown to
be “in existence” even though those products are not “cur-
rently in production.”
The government responds that there is evidence in the
record that the Series 6xxx Pallets exist and have been im-
ported. The government argues that the purpose of Com-
merce’s long-standing practice is to refrain from issuing
advisory rulings on hypothetical products that do not yet
exist. The government notes Commerce’s reasoning in this
case that if scope rulings could only be issued on products
that were in continuous production, it would create a loop-
hole for importers to avoid scope rulings by strategically
starting and stopping production. See Final Scope Ruling,
J.A. 33.
We agree with the government. Commerce found suf-
ficient evidence in the record demonstrating that the Series
6xxx Pallets exist and are therefore not hypothetical prod-
ucts. Ironically, Perfectus’s conduct in continuing to argue
this case all the way through this appeal is a fairly strong
indication that the impact of Commerce’s scope ruling is
anything but hypothetical. Thus, we find no error in Com-
merce’s decision to issue a scope ruling on the Series 6xxx
Pallets.
CONCLUSION
We have considered Perfectus’s remaining arguments,
but we find them unpersuasive. Accordingly, the Trade
Court’s decision is affirmed.
AFFIRMED
