Whirlpool Corp. v. United States , 182 F. Supp. 3d 1307 ( 2016 )

Slip Op. 16-81
UNITED STATES COURT OF INTERNATIONAL TRADE
WHIRLPOOL CORPORATION,
Plaintiff,
v.
UNITED STATES, Before: Timothy C. Stanceu, Chief Judge
Defendant, Court No. 14-00199
and
ALUMINUM EXTRUSIONS FAIR
TRADE COMMITTEE,
Defendant-Intervenor.
OPINION
[Affirming a decision made in response to court order in an action contesting a ruling on the
scope of antidumping and countervailing duty orders on aluminum extrusions from China]
Dated: August 26, 2016
Donald Harrison, Gibson, Dunn & Crutcher, LLP, of Washington, DC, for plaintiff.
Aimee Lee, Senior Trial Counsel, Civil Division, U.S. Department of Justice, of New
York, NY, for defendant. With her on the brief were Benjamin C. Mizer, Principal Deputy
Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant
Director. Of counsel on the brief was David P. Lyons, Office of the Chief Counsel for Trade
Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Alan H. Price and Robert E. DeFrancesco, III, Wiley Rein LLP, of Washington, DC, for
defendant-intervenor.
Stanceu, Chief Judge: Plaintiff Whirlpool Corporation (“Whirlpool”) challenged a 2014
decision of the International Trade Administration, United States Department of Commerce
(“Commerce” or the “Department”) interpreting the scope of antidumping and countervailing
duty orders on aluminum extrusions from China to include two types of kitchen appliance door
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handles imported by Whirlpool. In an opinion and order, the Court denied plaintiff’s motion as
to one type of appliance door handles, each of which consisted of a single piece that was
fabricated from an aluminum extrusion, and granted it as to a second type of handles, which were
assemblies. In response, Commerce has decided, under protest, that the assembled handles are
outside the scope of the antidumping and countervailing duty orders on aluminum extrusions
from China (the “Orders”). Whirlpool supports this decision. Opposing the determination
Commerce reached on remand is the Aluminum Extrusions Fair Trade Committee (“AEFTC”),
an association of domestic aluminum extrusion producers that was a petitioner in the underlying
antidumping and countervailing duty investigations and is a defendant-intervenor in this
proceeding. The court affirms the Department’s decision in the Remand Redetermination that
the assembled handles are outside the scope of the Orders.
I. BACKGROUND
Presented below is background to supplement the background provided in the court’s
earlier opinion and order, Whirlpool Corp. v. United States, 40 CIT __, 144 F. Supp. 3d 1296,
1298-99 (2016) (“Whirlpool I”).
A. Decisions Reviewed by the Court in this Litigation
Commerce issued the decision originally contested in this litigation (the “Final Scope
Ruling”) on August 4, 2014. Final Scope Ruling on Kitchen Appliance Door Handles,
A-570-967, C-570-968 (Aug. 4, 2014) (First Admin.R.Doc. No. 11), available at
http://enforcement.trade.gov/download/prc-ae/scope/46-kitchen-door-handles-4aug14.pdf (last
visited Aug. 19, 2016) (“Final Scope Ruling”).1
1
Citations to “First Admin.R.Doc.” refer to documents placed on the record by
Commerce in Parts A.1 and A.3 of the administrative record, which refer to the assembled
handles. Citations to “Second Admin.R.Doc.” refer to documents placed on the record by
(continued…)
Court No. 14-00199 Page 3
The contested determination now before the court (the “Remand Redetermination”) is the
decision Commerce issued in response to the court’s order in Whirlpool I. Results of
Redetermination Pursuant To Court Remand (Apr. 15, 2016) (Remand Admin.R.Doc. No. 3)
(“Remand Redetermination”).
B. Administrative Proceedings Conducted by Commerce
Commerce issued the antidumping and countervailing duty orders on aluminum
extrusions from China (the “Orders”) on May 26, 2011. Aluminum Extrusions from the People’s
Republic of China: Antidumping Duty Order, 76 Fed. Reg. 30,650 (Int’l Trade Admin.
May 26, 2011) (“AD Order”); Aluminum Extrusions from the People’s Republic of China:
Countervailing Duty Order, 76 Fed. Reg. 30,653 (Int’l Trade Admin. May 26, 2011) (“CVD
Order”).
On December 20, 2013, Whirlpool filed a request for a scope ruling on the appliance
door handles that remain at issue in this case, i.e., the assembled handles. Letter Requesting a
Scope Inquiry Regarding Kitchen Appliance Door Handles With End Caps 7 (First
Admin.R.Doc. No. 1) (“First Scope Ruling Request”). On March 19, 2014, Whirlpool responded
to a Department questionnaire regarding its submission. Resp. of Whirlpool Corp. to the Dep’t’s
Supp. Questionnaire on Scope Inquiry Regarding Kitchen Appliance Door Handles With End
Caps (First Admin.R.Doc. No. 7) (“Supp. Questionnaire Resp.”).
Whirlpool filed a second scope ruling request, on January 8, 2014, for one-piece
appliance door handles, each of which was fabricated from an aluminum extrusion. Letter
(continued…)
Commerce in Parts B.1 and B.3 of the administrative record, which pertain to the one-piece
handles. Citations to “Remand Admin.R.Doc.” refer to documents placed on the record of this
remand proceeding.
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Requesting a Scope Inquiry Regarding Kitchen Appliance Door Handles Without End Caps 4
(Second Admin.R.Doc. No. 1). On March 19, 2014, Whirlpool filed a response to the
Department’s questionnaire on this type of handles. Resp. of Whirlpool Corp. to the Dep’t’s
Supp. Questionnaire on Scope Inquiry Regarding Kitchen Appliance Door Handles Without End
Caps (Second Admin.R.Doc. No. 7).
On August 4, 2014, Commerce issued the Final Scope Ruling, in which it determined that
both types of Whirlpool’s appliance door handles are within the scope of the Orders. Final
Scope Ruling.
C. Proceedings before the Court of International Trade
Whirlpool commenced this action on August 26, 2014. Summons, ECF No. 1; Compl.,
ECF No. 6. On February 23, 2015, Whirlpool filed a motion for judgment on the agency record,
arguing that Commerce impermissibly placed both handle types within the scope of the Orders.
Pl.’s Mot. J. Agency R., ECF No. 26 (“Pl.’s Br.”). Defendant and defendant-intervenor
responded on June 2, 2015. Def.’s Opp’n to Pl.’s Mot. J. Agency R., ECF No. 36 (“Def.’s
Opp’n”); Def.-Int.’s Resp. Pl.’s Mot. J. Agency R., ECF No. 35 (“Def.-Int.’s Opp’n”). On
July 13, 2015, Whirlpool filed a reply. Pl.’s Reply Br. to Def.’s Opp’n to Pl.’s Mot. J.
Agency R., ECF No. 42. The court held an oral argument on October 8, 2015. ECF No. 47.
On February 1, 2016, the court issued Whirlpool I, affirming the Department’s
determination that the one-piece handles were within the scope of the Orders but remanding the
Final Scope Ruling to Commerce for reconsideration of the decision that the assembled handles
were within the scope. Whirlpool I, 40 CIT at __, 144 F. Supp. 3d at 1307.
Following the court’s ruling in Whirlpool I, Commerce issued a draft redetermination
(“Draft Remand Redetermination”) on March 18, 2016 and invited the parties to comment.
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Draft Results Of Redetermination Pursuant To Court Remand (Mar. 18, 2016) (Remand
Admin.R.Doc. No. 1). Defendant-intervenor filed comments on the Draft Remand
Redetermination on March 24, 2016. Petitioner’s Comments on Department’s Draft Remand
Results (Remand Admin.R.Doc. No. 2).
Commerce issued the Remand Redetermination on April 15, 2016, on which Whirlpool
submitted comments on May 13, 2016, Pl. Whirlpool Corp.’s Comments on Final Results of
Redetermination Pursuant to Court Remand, ECF No. 53, and on which AEFTC submitted
comments on May 16, 2016, Def.-Int. Aluminum Extrusions Fair Trade Committee’s Comments
on Final Results of Redetermination Pursuant to Court Remand, ECF No. 55 (“Def.-Int’s
Comments”). Defendant responded to these comments on June 3, 2016. Def.’s Resp. to Remand
Comments, ECF No. 59.
II. DISCUSSION
A. Jurisdiction and Standard of Review
The court exercises subject matter jurisdiction under section 201 of the Customs Courts
Act of 1980, 28 U.S.C. § 1581(c), which grants jurisdiction over civil actions brought under
section 516A of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C. § 1516a.2 Among the decisions
that may be contested in this Court under Section 516A is a determination of “whether a
particular type of merchandise is within the class or kind of merchandise described in an . . .
antidumping or countervailing duty order.” Id. at § 1516a(a)(2)(B)(vi). In reviewing the
contested scope ruling, the court must set aside “any determination, finding, or conclusion found
. . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with
law.” Id. § 1516a(b)(1)(B)(i).
2
All citations to the United States Code are to the 2012 edition.
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B. Description of the Merchandise in Whirlpool’s First Scope Ruling Request
The merchandise remaining at issue, which was the subject of Whirlpool’s first scope
ruling request, consisted of 38 models of handles for a variety of kitchen appliances.
Whirlpool I, 40 CIT at __, 144 F. Supp. 3d at 1299 (citing First Scope Ruling Request Attach. 1).
Thirty-two of these handles were made for specific models of refrigerators, four were made for
specific models of ranges, one was made for a single dishwasher model, and one was made for a
single electric oven model. Id. (citing First Scope Ruling Request Attach. 1). As the court stated
in Whirlpool I, “[t]he record indicates some variation in the assemblies, but a fact common to all
models is that each handle has within the assembly a single component that is fabricated from an
aluminum extrusion and then surface coated (by, for example, brushing, anodizing, or painting).”
Id. “Also common to each handle in Whirlpool’s first scope ruling request is the presence of
plastic end caps that are attached to the aluminum component by screws.” Id. (citing First Scope
Ruling Request 7, 16-17). The court added that “[a]s imported into the United States, all
assembled handles covered by this request ‘are fully manufactured, assembled and completed,
with no further processing of the handle required.’” Id., 40 CIT at __, 144 F. Supp. 3d at 1300
(quoting First Scope Ruling Request 7).
C. The Scope Language in the Orders
The scope language of the antidumping duty order and the scope language of the
countervailing duty order are essentially equivalent. The orders apply to “aluminum extrusions
which are shapes and forms, produced by an extrusion process, made from aluminum alloys
having metallic elements corresponding to the alloy series designations published by The
Aluminum Association commencing with the numbers 1, 3, and 6 (or proprietary equivalents or
other certifying body equivalents).” AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed.
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Reg. at 30,653. Such extrusions may be “produced and imported in a wide variety of shapes and
forms,” and, after extrusion, may be subjected to drawing and to further fabrication and
finishing. AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at 30,654.
The scope of the Orders includes aluminum extrusions that are “described at the time of
importation as parts for final finished products that are assembled after importation” or
“identified with reference to their end use.” AD Order, 76 Fed. Reg. at 30,650-51; CVD Order,
76 Fed. Reg. at 30,654. To be subject to the Orders, however, such merchandise must
“otherwise meet the definition of aluminum extrusions.” AD Order, 76 Fed. Reg. at 30,651;
CVD Order, 76 Fed. Reg. at 30,654.
The Orders exclude from the scope certain finished merchandise “containing 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.” AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed.
Reg. at 30,654.
D. The Court Affirms the Department’s Decision that the Assembled Handles Are Outside the
Scope of the Orders
1. The Court’s Decision in Whirlpool I
In Whirlpool I, the court began its analysis with the general scope language, i.e., the
language of the Orders absent specific exclusions. Under the general scope language, the court
reasoned, “aluminum extrusions” subject to the Orders are “shapes and forms, produced by an
extrusion process . . .” from specified aluminum alloys. Whirlpool I, 40 CIT at __, 144 F.
Supp. 3d at 1300 (quoting AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg.
at 30,653). The court stated, further, that “[t]he scope of the Orders includes goods made of the
specified aluminum alloys that resulted from an extrusion process but also were subjected to
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certain specified types of industrial processes after extrusion.” Id. The court added that “[t]hese
post-extrusion processes are drawing, fabricating, and finishing; the scope language provides
non-exhaustive lists of types of fabricating and finishing operations.” Id. Observing that
“[n]otably absent from the identified post-extrusion processes are assembly processes,” the court
reasoned that “the term ‘extrusion’ is not defined in the general scope language so as to include a
good simply because an extruded aluminum component is present within a good consisting of an
assembly.” Id., 40 CIT at __, 144 F. Supp. 3d at 1302. Addressing scope language providing
that subject aluminum extrusions may be “described at the time of importation as parts for final
finished products that are assembled after importation” or “identified with reference to their end
use,” the court, citing the express language of the scope, concluded that this language is limited
by the qualification that goods so described or identified are within the scope only if they
“otherwise meet the definition of aluminum extrusions.” Id. (quoting AD Order, 76 Fed. Reg.
at 30,650-51; CVD Order, 76 Fed. Reg. at 30,654 (emphasis added)).
The court next addressed the “subassemblies provision,” id., which places within the
scope of the Orders “aluminum extrusion components that are attached (e.g., by welding or
fasteners) to form subassemblies, i.e., partially assembled merchandise unless imported as part of
the finished goods ‘kit’ defined further below.” AD Order, 76 Fed. Reg. at 30,651; CVD Order,
76 Fed. Reg. at 30,654.3 The court concluded that “[t]his is the only general scope language that
3
The referenced “finished goods ‘kit’” definition is part of the “finished goods kit
exclusion,” in defining which the Orders state as follows:
The scope also excludes finished goods containing aluminum extrusions that are
entered unassembled in a “finished goods kit.” A finished goods kit is understood
to mean a packaged combination of parts that contains, at the time of importation,
all of the necessary parts to fully assemble a final finished good and requires no
further finishing or fabrication, such as cutting or punching, and is assembled “as
(continued…)
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reasonably can be interpreted to expand the scope beyond goods consisting solely of a single
extrusion, but this sentence, notably, refers to ‘partially assembled merchandise.’” Whirlpool I,
40 CIT at __, 144 F. Supp. 3d at 1302. The court noted that Commerce, in the Final Scope
Ruling, had not relied upon the subassemblies provision in placing Whirlpool’s assembled
handles within the scope of the Orders; this was “understandable,” according to the court,
because the subassemblies provision applies only to partially assembled merchandise whereas
the handles were “imported in a form in which they require no further assembly or processing
prior to the intended use.” Id., 40 CIT at __, 144 F. Supp. 3d at 1303 (citing Final Scope
Ruling 5).
The court reasoned that the Final Scope Ruling was flawed because it failed “to address
in any meaningful way the question of whether the general scope language describes the
assembled handles” and because, after mentioning the definition of “extrusion” in the general
scope language, it proceeded “directly to a discussion of whether these goods satisfy either the
finished merchandise exclusion or the finished goods kit exclusion.” Id., 40 CIT at __, 144 F.
Supp. 3d at 1302-03 (citing Final Scope Ruling 17). The court opined in Whirlpool I that “[a]fter
a discussion of the two exclusions, the Final Scope Ruling states, in conclusory fashion, that ‘we
find that the handles at issue fall inside the language of the scope that includes “aluminum
(continued…)
is” into a finished product. An imported product will not be considered a “finished
goods kit” and therefore excluded from the scope of the investigation merely by
including fasteners such as screws, bolts, etc. in the packaging with an aluminum
extrusion product.
Aluminum Extrusions from the People’s Republic of China: Antidumping Duty Order, 76 Fed.
Reg. 30,650, 30,651 (Int’l Trade Admin. May 26, 2011); Aluminum Extrusions from the People’s
Republic of China: Countervailing Duty Order, 76 Fed. Reg. 30,653, 30,654 (Int’l Trade Admin.
May 26, 2011).
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extrusions which are shapes and forms, produced by an extrusion process.”’” Id. (quoting Final
Scope Ruling 18). The court did not consider the assembled handles to conform to this definition
and pointed out the distinction between “extrusions” as defined in the scope language and
“assemblies, each of which contains an extrusion, machined and surface-treated, as the principal
component.” Id., 40 CIT at __, 144 F. Supp. 3d at 1302. Viewing as unreasonable an
interpretation of the general scope language to include the assembled handles, the court held that
the Final Scope Ruling was “contrary to law and must be set aside.” Id., 40 CIT at __, 144 F.
Supp. 3d at 1303.
The court also analyzed the applicability of the finished merchandise exclusion to the
assembled handles, even though this analysis was unnecessary to the decision to order a remand
of the Final Scope Ruling. Id., 40 CIT at __, 144 F. Supp. 3d at 1303-04. The court stated that
Commerce had failed to demonstrate that the assembled handles, if presumed to fall within the
general scope language, would not qualify under the plain language of that exclusion. Id.
(“Commerce presents no convincing reason why the plain language of this exclusion, which
appears to describe the assembled handles, would not be dispositive were the general scope
language presumed to describe these goods.”). Id., 40 CIT at __, 144 F. Supp. 3d at 1304. The
court considered Commerce to have decided that the presence of what Commerce considered
“fasteners” within an assembly is to be disregarded when the finished merchandise exclusion is
applied and, in so doing, to have relied unjustifiably on a reference to “fasteners” in a different
exclusion, the finished goods kit exclusion. Id. The court further concluded that “Commerce
also employed flawed logic and ignored record evidence in concluding that the plastic end caps
in the assembled handles are ‘fasteners.’” Id., 40 CIT at __, 144 F. Supp. 3d at 1304-05. As the
court stated, “[r]elying on a dictionary definition of ‘washer’ as a ‘flat thin ring or a perforated
Court No. 14-00199 Page 11
plate used in joints or assemblies to ensure tightness, prevent leakage, or relieve
friction,’ . . . Commerce found that the plastic end caps ‘are analogous to a washer’ because they
‘allow[ ] the handle to fit tightly to the refrigerator door’; Commerce further found, without
evidentiary support in the record, that the plastic end caps ‘relieve[ ] friction between the door
and the handle.’” Id., 40 CIT at __, 144 F. Supp. 3d at 1305 (citing Final Scope Ruling 17)
(internal citation omitted). As to the lack of substantial evidence to support the Department’s
finding, the court stated that “[t]he record evidence is that the end caps are made of plastic, are
designed for their specific application, and are attached to the aluminum extrusion component
‘by means of screws.’” Id. (citing First Scope Ruling Request 7, 16-17).
Whirlpool I directed Commerce to reconsider its decision placing the assembled handles
within the scope of the Orders and to “reach a new determination as to whether the assembled
handles are covered by the scope, bearing in mind that it must interpret reasonably the scope
language it chose upon promulgating the Orders.” Id. (citing Duferco Steel, Inc. v. United States,
296 F.3d 1087, 1097-98 (Fed. Cir. 2002)).
2. The Department’s Remand Redetermination
In the Remand Redetermination, Commerce decided “under respectful protest[ ] that
handles with end caps are outside the scope of the Orders because, consistent with the Court’s
interpretation of the scope language, there is no general scope language which covers such
products.” Remand Redetermination 8 (footnote omitted). Commerce further decided that, as a
result, it was unnecessary to address whether the assembled handles meet the conditions for the
exclusions to the Orders. See id. at 8, 14.
The court affirms the Department’s decision that the assembled handles are not within the
scope of the Orders. However, the court does not affirm all of the statements Commerce
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included in the Remand Redetermination. Most notably, when responding to defendant-
intervenor’s comments in the Remand Redetermination, Commerce included statements that
appear to misinterpret certain aspects of the court’s opinion and order in Whirlpool I, as
discussed below. Nevertheless, the Remand Redetermination is sufficient to allow the court to
affirm, on the reasoning the Department presents, the decision that the assembled handles are
outside the scope of the Orders. The Remand Redetermination adopts, albeit under protest, the
same analysis that the court applied in Whirlpool I to conclude that the general scope language
does not include the assembled handles.
In addressing AEFTC’s position that the assembled handles are covered by the Orders on
the premise that the plastic end caps are “fasteners,” Commerce stated that it agrees with
defendant-intervenor that “both the scope language and the record evidence support a finding
that the plastic end caps in question should be treated as fasteners, and, therefore, Whirlpool’s
handles with end caps consist solely of aluminum extrusions and fasteners.” Id. at 10.
Commerce added that it could not rule in this way consistent with the court’s opinion and order
in Whirlpool I because “the Court has made a specific finding that, based on the scope language
and this same record evidence, the plastic end caps are not fasteners.” Id. (footnote omitted).
However, the court did not make a “finding” that the plastic end caps are not fasteners. It is not
the court’s role to make findings but instead to determine whether the Department’s findings are
supported by substantial evidence on the record and whether the Department’s conclusions are
otherwise in accordance with law. As discussed previously in this Opinion, the finding that the
end caps are “fasteners” was flawed based on the record evidence, and it was inconsistent with
the definition of the term “washer” upon which Commerce itself relied. The conclusion that
treating the end caps as fasteners results in the inclusion of the assembled handles within the
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scope of the Orders was also flawed, as it was based on a misinterpretation of the scope
language.
The Remand Redetermination also appears to misinterpret the court’s discussion in
Whirlpool I of the subassemblies and parts provisions in the scope language. In addressing
AEFTC’s opposition to the Department’s position that it need not analyze the applicability of the
scope exclusions to Whirlpool’s assembled handles because they are not within the ambit of the
general scope language, Commerce stated that “although the Court identified additional general
scope provisions, i.e., the ‘parts’ language and ‘subassemblies’ language, which also could be
considered relevant, the Court ultimately found that, based on the record evidence, these
provisions would not support a finding that Whirlpool’s handles with ends caps are covered by
the Orders.” Remand Redetermination 12-13 (emphasis added). However, the court never held
that the subassemblies language would not support a finding that the assembled handles were
within the scope. Because Commerce itself based the reasoning of the Final Scope Ruling on
scope language other than the subassemblies provision, the court was not in a position to reach a
holding on whether the subassemblies provision could support a finding that the assembled
handles are subject merchandise.4 Instead, the court, as it was required to do, reached its holding
in Whirlpool I based on the reasoning Commerce put forth, and the court’s observations as to the
subassemblies provision are, therefore, dicta. As to the “parts” provision in the scope language,
4
In the Remand Redetermination, Commerce again refrained from applying the
subassemblies provision. Even had it applied the subassemblies provision, and even had it
somehow concluded that the assembled handles are only “partially assembled,” it could not
plausibly have decided, as it did in the Final Scope Ruling, that the assembled handles are within
the scope. By its express terms, the subassemblies provision is limited to “the aluminum
extrusion components” and “does not include the non-aluminum extrusion components of
subassemblies.” AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at 30,654. As it
did in the Final Scope Ruling, Commerce based its decision in the Remand Redetermination on
each assembled handle, considered as an entirety.
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the question in Whirlpool I was not whether the assembled handles are “described at the time of
importation as parts for final finished products that are assembled after importation” within the
meaning of the scope language, AD Order, 76 Fed. Reg. at 30,650, CVD Order, 76 Fed. Reg. at
30,654. The point the court made in Whirlpool I was that goods that are within the meaning of
this language do not necessarily fall within the scope. See Whirlpool I, 40 CIT at __, 144 F.
Supp. 3d at 1302. Instead, by the express limitation in the scope language, such goods are within
the scope only if they “otherwise meet the definition of aluminum extrusions,” AD Order, 76
Fed. Reg. at 30,651, CVD Order, 76 Fed. Reg. at 30,654.
3. Defendant-Intervenor’s Comments on the Remand Redetermination
In opposing the Remand Redetermination, defendant-intervenor AEFTC puts forth
several arguments that the court rejects for the reasons discussed below.
AEFTC argues that the Department’s finding in the Remand Redetermination that the
general scope language does not apply to the assembled handles is unreasonable and
“inconsistent with evidence on the record that shows that the handles match the physical
description of subject merchandise and are comprised entirely of extruded aluminum and
fasteners.” Def.-Int’s Remand Comments 2. According to AEFTC, “the ‘fasteners’ term is
properly understood as covering a much broader category of components than described by the
Court in its decision,” id. at 5 (citation omitted), and should be construed to cover the plastic end
caps because these components serve an attachment function, id. at 5-6. This argument is
unavailing. The court’s discussion of the “fasteners” question occurred in the hypothetical
context of the court’s presuming, arguendo, that the scope language could be construed, as a
general matter, to encompass assembled goods such that the finished merchandise exclusion
would need to be considered. See Whirlpool I, 40 CIT at __, 144 F. Supp. 3d at 1303-04. Even
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if the plastic end caps plausibly could be described as “fasteners,” so describing them would not
have cured the fundamental flaw in the Final Scope Ruling. While the subassemblies provision
(which Commerce did not invoke) can be interpreted as enlarging the scope to encompass an
“extrusion” (as defined in the scope language) that is imported as a component of a partially
assembled good, the general scope language, apart from the subassemblies provision, does not
include assembled goods. Rather, the general scope language defines extrusions as “shapes and
forms, produced by an extrusion process.” AD Order, 76 Fed. Reg. at 30,650; CVD Order,
76 Fed. Reg. at 30,653. The post-extrusion processes that do not remove an extrusion from the
scope are specified in the scope language as drawing, fabricating and finishing. AD Order,
76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at 30,654. An assembly process using an
extrusion as a component in the production of another good is not included among those post-
extrusion processes, and only the subassemblies provision refers to assembled goods. The
assembled handles, considered as a whole (which is how Commerce analyzed them in the Final
Scope Ruling and the Remand Redetermination) cannot truthfully be described as shapes or
forms produced by an extrusion process. The uncontradicted record evidence is that they are,
instead, the products of an assembly process.
AEFTC also argues that “the Court specifically recognized that aluminum extrusions
containing non-extruded parts are covered under the scope, albeit under the description of
partially-assembled merchandise.” Def.-Int.’s Remand Comments 6 (citation omitted). This
argument misunderstands Whirlpool I and misinterprets the scope language. “Aluminum
extrusions containing non-extruded parts” are not included in the scope, and the court did not
decide that they were. Under the terminology employed by the scope language, there can be no
such thing as an aluminum extrusion that contains non-extruded parts. If a single good contains
Court No. 14-00199 Page 16
non-extruded parts, it is necessarily an assembly of parts and cannot fall within the definition of
an “extrusion” that the scope language contains. The subassemblies provision (which is not at
issue in this case), by its own terms, can apply only to the aluminum extrusion components of a
subassembly considered to be “partially assembled merchandise,” not to the entire subassembly.
Finally, defendant-intervenor contends that Commerce was incorrect in refusing to
engage in an analysis of Whirlpool’s assembled handles under the exclusions to the general
scope language, having already found that these handles are not within the general scope of the
Orders. Id. at 7-9. According to AEFTC, because Commerce properly found Whirlpool’s
assembled handle to be within the general scope of the Orders in the Final Scope Ruling, an
“assessment of whether Whirlpool’s handles with end caps are eligible for exclusion as ‘finished
merchandise,’ then, is appropriate and should render a finding that Whirlpool’s handles with end
caps remain ineligible for exclusion from the scope of the Orders, even as ‘finished
merchandise.’” Id. at 7-8. For the reasons provided in Whirlpool I and discussed above, the
court views as correct the Department’s decision, albeit made under protest, that the assembled
handles are not covered by the general scope language to the Orders. Therefore, the court will
not disturb the Department’s decision in the Remand Redetermination to refrain from engaging
in an analysis of the exclusions to the scope.
III. CONCLUSION
The court rules that Commerce was correct in deciding that Whirlpool’s assembled
handles are not within the scope of the Orders. The court affirms this decision on the reasoning,
Court No. 14-00199 Page 17
adopted by Commerce (albeit under protest), that the assembled handles are not described by the
general scope language of the Orders. Judgment will enter accordingly.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Chief Judge
Dated: August 26, 2016
New York, New York