AA Metals, Inc. v. United StatesPublic version: 03/10/2023.

Slip Op. 23-29
UNITED STATES COURT OF INTERNATIONAL TRADE
AA METALS, INC.,
Plaintiff,
v. Before: Jane A. Restani, Judge
UNITED STATES, Court No. 22-00051
Defendant, PUBLIC VERSION
and
TEXARKANA ALUMINUM, INC.,
Defendant-Intervenor.
OPINION
[Sustaining Commerce’s Final Scope Determination.]
Dated: March 10, 2023
Kristen S. Smith and Sarah E. Yuskaitis, Sandler, Travis & Rosenberg, PA, of Washington, DC,
argued for plaintiff AA Metals, Inc.
Eric E. Laufgraben, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, argued for defendant. With him on the brief were
Brian M. Boynton, Principal Deputy Assistant Attorney General, Patricia M. McCarthy,
Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Leslie
Lewis, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of
Commerce, of Washington, DC.
Peter J. Koenig, Squire Patton Boggs (US) LLP, of Washington, DC, argued for defendant-
intervenor Texarkana Aluminum, Inc. With him on the brief was Jeremy W. Dutra.
Restani, Judge: This action challenges a final scope determination of the United States
Department of Commerce (“Commerce”) regarding common alloy aluminum sheet (“CAAS”)
imported by AA Metals, Inc. (“AA Metals”). The Final Scope Determination found that certain
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CAAS exported from China to Turkey and further worked by Turkish company PMS Metal
Profil Alüminyum San. Ve Tic. A.Ş. (“PMS”) before importation into the United States is within
the scope of antidumping and countervailing duty orders. See Notification of Final Scope
Determination and Response to Covered Merchandise Referral, P.R. 48 (Jan. 21, 2022) (“Final
Scope Determination”).
AA Metals asks for judgment on the record, arguing the Final Scope Determination is
unsupported by substantial evidence and is otherwise not in accordance with law. See Pl. AA
Metals, Inc.’s Mem. of Points and Authorities in Supp. of its R. 56.2 Mot. for J. on the Agency
Record at 11–13, ECF No. 21 (July 7, 2022) (“AA Metals Br.”). AA Metals asserts that
Commerce improperly determined that the language of the scope was dispositive and that
Commerce failed to address 19 C.F.R. § 351.225(k)(1) factors. Id. 12, 21–23. AA Metals argues
this resulted in an unlawful expansion of the antidumping and countervailing duty orders’s
scopes. Id. at 21–25. AA Metals also asserts several other arguments, including that Commerce
should have given AA Metals the opportunity to address and correct deficiencies in the record,
and that Commerce was required to do a substantial transformation analysis. Id. at 17–21, 32–
37. The United States argues that Commerce’s dispositive language determination was
appropriate, that there were no deficiencies in the questionnaire responses, and that a substantial
transformation analysis was unnecessary. Def.’s Resp. to Pl.’s R. 56.2 Mot. for J. Upon the
Agency Record at 8–9, 12, ECF No. 26 (Nov. 3, 2022) (“Government Br.”). For the following
reasons, the court affirms Commerce’s determination.
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BACKGROUND
I. Antidumping and Countervailing Duty Orders
In November 2017 Commerce initiated antidumping and countervailing duty
investigations for CAAS from China. See Common Alloy Aluminum Sheet From the People’s
Republic of China: Initiation of Less-Than-Fair-Value and Countervailing Duty Investigations,
82 Fed. Reg. 57,214 (Dep’t Comm. Dec. 4, 2017); see also AA Metals Br. at 2. A year later
Commerce published its affirmative final antidumping and countervailing duty determination.
Antidumping Duty Investigation of Common Alloy Aluminum Sheet From the People’s
Republic of China: Affirmative Final Determination of Sales at Less-Than-Fair Value, 83 Fed.
Reg. 57,421 (Dep’t Comm. Nov. 15, 2018); Countervailing Duty Investigation of Common
Alloy Aluminum Sheet From the People’s Republic of China: Final Affirmative Determination,
83 Fed. Reg. 57,427 (Dep’t Comm. Nov. 15, 2018); see also AA Metals Br. at 4.
In January 2019 the International Trade Commission (“ITC”) published an injury
determination. Response of AA Metals, Inc. & Teknik Alüminyum San. Ve Tic. A.Ş. to the
Department’s October 27, 2021 Supplemental Questionnaire at Ex. 6, C.R. 12, P.R. 43 (Nov. 5,
2021) (“SQR”). The determination covered China’s various aluminum products, including clad
and non-clad aluminum sheet. SQR, Ex. 6 at I-10–I-12. The ITC determination utilized the
same scope as Commerce’s investigations, examining CAAS defined as
Aluminum common alloy sheet (common alloy sheet), which is a flat-rolled
aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm,
in coils or cut-to-length, regardless of width. Common alloy sheet within the scope
of this investigation includes both not clad aluminum sheet, as well as multi-alloy,
clad aluminum sheet. With respect to not clad aluminum sheet, common alloy sheet
is manufactured from a 1XXX-, 3XXX-, or 5XXX-series alloy as designated by the
Aluminum Association. With respect to multi-alloy, clad aluminum sheet, common
alloy sheet is produced from a 3XXX-series core, to which cladding layers are
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applied to either one or both sides of the core.Common alloy sheet may be made to
ASTM specification B209–14, but can also be made to other specifications.
Regardless of specification, however, all common alloy sheet meeting the scope
description is included in the scope. Subject merchandise includes common alloy
sheet that has been further processed in a third country, including but not limited to
annealing, tempering, painting, varnishing, trimming, cutting, punching, and/or
slitting, or any other processing that would not otherwise remove the merchandise
from the scope of the investigations if performed in the country of manufacture of
the common alloy sheet.
Excluded from the scope of this investigation is aluminum can stock, which is
suitable for use in the manufacture of aluminum beverage cans, lids of such cans,
or tabs used to open such cans. Aluminum can stock is produced to gauges that
range from 0.200 mm to 0.292 mm, and has an H–19, H–41, H–48, or H–391
temper. In addition, aluminum can stock has a lubricant applied to the flat surfaces
of the can stock to facilitate its movement through machines used in the
manufacture of beverage cans. Aluminum can stock is properly classified under
Harmonized Tariff Schedule of the United States (HTSUS) subheadings
7606.12.3045 and 7606.12.3055.
Id. at I-10.
The injury determination further defined “aluminum sheet” as a “thin wrought aluminum
product that is produced via rolling process” and noted that “wrought aluminum” consists of
“aluminum products that are rolled, drawn, extruded, or otherwise mechanically formed of
aluminum or aluminum alloys.” Id. at I-12. Thus, the scope of the subject merchandise
addressed by the ITC was defined to be rolled, wrought aluminum within a certain thickness
range. The determination then went into detail discussing 3XXX-series alloy and noted that
common applications for CAAS Alloy [[ ]] include “heat exchangers, air condition
evaporators” and other appliances. Id. The data collected based on this scope from U.S.
producers and importers involved eight products, four of which were identified as Alloy
[[ ]]. Id. at V-5. Although the products varied in alloy, temper, and dimensions, the ITC
requested information about only two types of tempers in this eight-product survey: H and O. Id.Confidential Information Omitted
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Seven of the products were H temper products, and the remaining product surveyed was O
temper. Id.The ITC published a notice of its affirmative finding that “an industry in the United
States is materially injured by reason of imports of common alloy aluminum sheet from China,”
determining several types of aluminum sheets were sold in the United States at less than fair
value and were subsidized by the government of China in February 2019. Common Alloy
Aluminum Sheet from China; Determinations, 84 Fed. Reg. 1,784 (ITC Feb. 5, 2019).
After the ITC made its affirmative injury determination and published its CAAS from
China determination, Commerce issued antidumping and countervailing duty orders on CAAS
from China. See Common Alloy Aluminum Sheet From the People’s Republic of China:
Antidumping Duty Order, 84 Fed. Reg. 2813 (Dep’t Comm. Feb. 8, 2019) (“Antidumping
Order”); see also Common Alloy Aluminum Sheet From the People’s Republic of China:
Countervailing Duty Order, 84 Fed. Reg. 2157 (Dep’t Comm. Feb. 6, 2019) (“Countervailing
Order”) (collectively, “the Orders”). These orders cover merchandise described as:
aluminum common alloy sheet (common alloy sheet), which is a flat-rolled
aluminum product having a thickness of 6.3 mm or less, but greater than 0.2 mm,
in coils or cut-to-length, regardless of width. Common alloy sheet within the scope
of this order includes both not clad aluminum sheet, as well as multi-alloy, clad
aluminum sheet. With respect to not clad aluminum sheet, common alloy sheet is
manufactured from a 1XXX-, 3XXX-, or 5XXX-series alloy as designated by the
Aluminum Association. With respect to multi-alloy, clad aluminum sheet, common
alloy sheet is produced from a 3XXX-series core, to which cladding layers are
applied to either one or both sides of the core.
Common alloy sheet may be made to ASTM specification B209-14, but can
also be made to other specifications. Regardless of specification, however, all
common alloy sheet meeting the scope description is included in the scope.
Antidumping Order, 84 Fed. Reg. at 2815; see also Countervailing Order, 84 Fed. Reg. 2157.
The Orders included one explicit exclusion for aluminum can stock:
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Excluded from the scope of this order is aluminum can stock, which is
suitable for use in the manufacture of aluminum beverage cans, lids of such cans,
or tabs used to open such cans. Aluminum can stock is produced to gauges that
range from 0.200 mm to 0.292 mm, and has an H-19, H-41, H-48, or H-391 temper.
In addition, aluminum can stock has a lubricant applied to the flat surfaces of the
can stock to facilitate its movement through machines used in the manufacture of
beverage cans. Aluminum can stock is properly classified under Harmonized Tariff
Schedule of the United States (HTSUS) subheadings 7606.12.3045 and
7606.12.3055.
Id.II. Scope Proceeding
Texarkana Aluminum, Inc. (“Texarkana”) filed a Enforce and Protect Act (“EAPA”)
petition on March 16, 2020, and amended the petition on May 19, 2020, alleging that AA Metals
entered Chinese-origin aluminum sheet into the United States that was transshipped through
Turkey after minor processing and falsely declared it as originating from Turkey. Placement of
Covered Merchandise Referral Documents on the Record at 2, P.R. 4 (Aug 18, 2021). On June
30, 2020, CPB initiated an investigation under EAPA. Id. at 3. The petition specified two
scenarios that Texarkana contended should be investigated: Scenario 1) Chinese-origin
aluminum sheet of a thickness a little greater than covered by the scope is re-rolled in Turkey to
a thickness covered by the scope; and Scenario 2) Chinese-origin aluminum sheet of a thickness
covered by the scope is re-rolled in Turkey to a thickness still covered by the scope. Id. at 4.
On May 13, 2021, Commerce received a covered merchandise referral from Customs and
Border Protection (“CBP”) regarding EAPA investigation No. 7469. Id. CBP notified
Commerce that CBP was unable to determine whether the merchandise in the two scenarios
Texarkana specified was covered. Final Scope Determination at 2.
Commerce issued initial and supplemental questionnaires to AA Metals about both
scenarios, to which AA Metals responded. See Initial Questionnaire Response, C.R. 1–6 (Sept.
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27, 2021) (“IQR”); see also SQR. Texarkana also submitted a rebuttal to AA Metals’s initial
response, to which AA Metals submitted a surrebuttal. Final Scope Determination at 3–4. AA
Metals, for its part, requested that Commerce investigate Texarkana’s counsel for misconduct
and possible sanctions pursuant to 19 C.F.R. § 351.313. Id. at 4.
Commerce issued its Final Scope Determination on January 21, 2022. Id. at 1. The
Determination evaluated the two scenarios identified by Texarkana as excess. Id. In the Final
Scope Determination, Commerce found Scenario 1 merchandise to be outside the scope of the
Orders, but that concluded that Scenario 2 was within the scope and subject to the Orders. Id.Commerce also refused to investigate AA Metals’s claims against Texarkana. Id. at 4. AA
Metals seeks no relief from the court on this particular matter.
JURISDICTION & STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) (2022) and 19 U.S.C. §
1516a(a)(2)(B)(vi) (2021). This section provides for judicial review of 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. In conducting review, 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).
DISCUSSION
I. Legal Framework
The Department’s regulation governing scope determinations, 19 C.F.R. § 351.225(k),
provides that Commerce will take into account the following: (1) the descriptions of the
merchandise contained in the petition, (2) the initial investigation, and (3) the determinations of
the Secretary of Commerce (including prior scope determinations) and (4) the United States
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International Trade Commission.1 19 C.F.R. § 351.225(k)(1) (2021).2 If this inquiry fails to
resolve the issue, Commerce applies additional criteria found under 19 C.F.R. § 351.225(k)(2).
Id. § 351.225(k)(2) (2021). MCC Holdings v. United States, 45 CIT __, __, 537 F. Supp. 3d
1350, 1355 (2021).
The Federal Circuit has held that the first step in the inquiry is consideration of the
language of the Orders. See Shenyang Yuanda Aluminum Indus. Eng’g Co., Ltd. v. United
States, 776 F.3d 1351, 1356 (Fed. Cir. 2015) (“Scope language is the ‘cornerstone’ of any scope
determination.”); see also Walgreen Co. of Deerfield, IL v. United States, 620 F.3d 1350, 1357
(Fed. Cir. 2010); Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed. Cir. 2002).
Specifically, “Commerce cannot ‘interpret’ an antidumping order so as to change the scope of
that order, nor can Commerce interpret an order in a manner contrary to its terms.” Eckstrom
Indus., Inc. v. United States, 254 F.3d 1068, 1072 (Fed. Cir. 2001).
If the language of the Orders is ambiguous, (k)(1) factors must be considered.3 See Mid
Continent Nail Corp. v. United States, 725 F.3d 1295, 1302 (Fed. Cir. 2013) (“Commerce must
first examine the language of the final order. If the language is ambiguous, Commerce must next
consider the regulatory history, as contained in the so-called ‘(k)(1) materials.’”); see also Star
1
These four factors will hereinafter be referred to as “(k)(1) factors.”
2
Commerce has since revised the regulations. The revised regulations “apply to scope inquiries for which a scope
ruling application is filed, as well as any scope inquiry self-initiated by Commerce, on or after November 4, 2021.”
Regulations To Improve Administrative and Enforcement of Antidumping and Countervailing Duty Laws, 86 Fed.
Reg. 52,300 (Sept. 20, 2021); see also id. at 52,374. As Commerce received the Covered Merchandise Referral
from CBP on May 13, 2021, the previous iteration of the regulation applies here, although it is not clear that the
change would have affected this case.
3
The Federal Circuit has been inconsistent in stating whether consideration of (k)(1) factors is necessary if the
language of an order appears dispositive. See Shenyang 776 F.3d at 1357–58 (“In addition to the plain language of
the Orders, Commerce will also consider the descriptions of the merchandise contained in the petition, the initial
investigation, and the prior determinations of Commerce and the ITC.”); but see Star Pipe Prod. v. United States,
981 F.3d 1067, 1073 (Fed. Cir. 2020) (holding that if the language is unclear Commerce must consider the (k)(1)
factors). The language of the applicable regulation itself, however, has no such ambiguity: “the Secretary will take
into account” (k)(1) criteria when considering whether a particular product is within the scope of the order. 19
C.F.R. § 351.225(k) (emphasis added).
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Pipe Prod. v. United States, 981 F.3d 1067, 1073 (Fed. Cir. 2020). Even though “it is not
justifiable to identify an ambiguity where none exists,” Allegheny Bradford Corp. v. United
States, 28 CIT 830, 843, 342 F. Supp. 2d 1172, 1184 (2004), relevant scope terms are only
unambiguous if they have a “single clearly defined or stated meaning.” Diamond Sawblades
Manufacturers’ Coal. v. United States, 51 CIT __, __, 405 F. Supp. 3d 1345, 1352 (2019) (citing
Atkore Steel Components, Inc. v. United States, 42 CIT ___, ___, 313 F. Supp. 3d 1374, 1380
(2018)). Ambiguity is a common issue in scope cases, as “descriptions of subject merchandise
contained in the Department’s determinations must be written in general terms.” 19 C.F.R. §
351.225(a). It is fairly easy to provide a “single clearly defined” meaning when excluding
particular merchandise; it is much harder to do so when including a variety of merchandise in the
statute’s required “general terms.”
Whether or not the language appears to be dispositive, a scope determination requires an
examination of “the record as a whole, taking into account both the evidence that justifies and
detracts from an agency’s opinion.” Falko-Gunter Falkner v. Inglis, 448 F.3d 1357, 1363 (Fed.
Cir. 2006).
II. Commerce Did Not Rely on Plain Language Alone, But Considered (k)(1)
Factors
In its Final Scope Determination analysis of Scenario 2 merchandise, Commerce stated
that the language of the Orders was dispositive and determined further analysis of the factors
listed in 19 C.F.R. § 351.225(k)(1) was unnecessary. Final Scope Determination at 10. AA
Metals contends that Commerce erred when it determined that the language was dispositive, and
instead insists that examining the (k)(1) factors is necessary to determine the meaning of the
Orders. AA Metals Br. at 25–28, 30–31. AA Metals also asserts that, had all (k)(1) sources been
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considered, a narrower interpretation of the Orders would have been clearly established. Id. AA
Metals contends that an examination of all (k)(1) factors would have resulted in excluding
Scenario 2 merchandise, and accordingly Commerce impermissibly expanded the scope beyond
its intended merchandise. Id.Despite Commerce’s assertion that the language of the scope of the Orders is dispositive,
Commerce did not rely on the language alone. In the Final Scope Determination, Commerce
referred to various (k)(1) factors in its analysis of the Orders. Final Scope Determination at 6, 8,
9. First, Commerce described the merchandise using the exact same language as that presented
by Texarkana in the original petition. Final Scope Determination at 6. Second, noting that “the
scope of the Orders does not explicitly define wrought aluminum alloy sheet,” Commerce
referred to the Commission’s final determination when defining CAAS as “a thin wrought
aluminum product that is produced via a rolling process.” Final Scope Determination at 8, see
also SQR, Ex. 6 at I-12. Thirdly, Commerce noted that the scope is consistent with prior scope
determinations, stating that the language “products that otherwise meet the definition of
aluminum sheet in the first paragraph of the scope are subject to the scope” is present in both
findings. Final Scope Determination at 9. In addition, the prior scope determinations Commerce
referenced also addressed arguments about the ITC Investigation, similar to those raised by AA
Metals. See infra pp. 12–13.
Had Commerce been confident that the language of the scope was dispositive, it would
not have needed to reference the above factors. Or perhaps, it wisely decided consideration of
plaintiff’s arguments was appropriate. For whatever reason, Commerce apparently concluded
that the language should be considered in context and bolstered the bare language with
consideration of various (k)(1) factors. See Final Scope Determination at 9. In particular, it
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cited its own prior determinations regarding the products, which contain more detail about the
scope of the Orders. See id. at n.58.
Significantly, plaintiff has not made it clear how further examination of the initial
investigation would change the result here. Although under the applicable regulation every
(k)(1) factor must be considered in some way, the amount of reliance on each factor differs from
case to case, as facts change, as analyses differ, and as different arguments are presented. If an
error did occur, as is by no means clear, plaintiff has not demonstrated how remanding this
matter for correction of the alleged error would alter the outcome of the antidumping or
countervailing proceedings for the parties involved.
As indicated, despite stating the language of the Order was dispositive, Commerce did
reference various (k)(1) factors that effectively provided an understanding of the scope that
Commerce then applied to the merchandise in question. The analysis of the language and the
various factors, even where brief, was more than “the mere scintilla” of evidence needed for
substantial evidence review. Consolidated Edison Co. v. NLRB, 305 U.S. 197, 217 (1938).
III. The Merchandise in Scenario 2 Is Within the Scope of the Orders
A. The Temper of Scenario 2 Is Within the Scope of the Orders
AA Metals argues that Commerce impermissibly expanded the scope of the Orders to
include the Scenario 2 product. AA Metals Br. at 11. AA Metals argues that F-temper
aluminum alloy is not within the scope of the Orders. Id. at 26–31. AA Metals argues that,
because F-temper products were not considered in the ITC injury determination, they should be
excluded from the scope of the Orders. Id. at 28–31.
In the Final Scope Determination, Commerce concluded that because Scenario 2
merchandise did not meet the explicit exclusions of the scope determination, and the scope
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language of the Orders states that “products that otherwise meet the definition of aluminum sheet
in the first paragraph of the scope are subject to the scope,” F-temper products are within the
scope of the Orders. See Final Scope Determination at 9. To support this, Commerce relied
upon a previous scope determination that specifically stated that F-tempered products are within
the scope of an order with identical scope language.4 Id. at 9; see also IQR, Ex. 2 at 9–11 (“2021
Final Decision”).
In the 2021 Final Decision, Commerce responded to comments made by foreign and
domestic aluminum manufacturers regarding scope. See generally 2021 Final Decision.
Comment 3 of the Decision discussed the inclusion of F-temper re-roll stock. Id. at 9–11.
Plaintiff Hulamin argued that F-temper products should be outside of the scope, and that
including F-tempered stock “is contrary to the domestic like product in the China aluminum
sheet investigations and subsequent China Aluminum Sheet Orders.” Id. at 9–10. Noting that F-
tempered product includes re-roll stock, Hulamin asserted that “proprietaries [sic] of re-roll stock
are not established until further processing that only occurs after downstream production,” and
that re-roll stock is an “intermediary product.” Id. at 10. Domestic petitioners pushed back on
these arguments, asserting that “Commerce did not include a code for ‘F’ temper products
because neither Commerce, nor the petitioners, had any information that significant volumes of
such aluminum sheet products entered the United States from China during the period of
investigation.”5 Id. Petitioners also argued that “re-rolled stock is a flat-rolled, coiled aluminum
4
AA Metals argues that as this previous scope determination did not address China directly, Commerce erred in
relying on this memorandum. This is incorrect. 19 C.F.R. 351.225(k)(1) factors require that Commerce will take
into account “determinations of the Secretary (including prior scope determinations).” It does not restrict such
determinations to only those addressing the countries involved in the scope proceeding at issue.
5
AA Metals disagreed with this contention at oral argument, however, it did not point to any evidence to support its
position.
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product” that “falls squarely within the scope of these investigations” and that they intended to
include such “re-roll” stock in the scope of the investigations. Id.
In response to these comments, Commerce stated that “the petitioners are uniquely
situated to opine on the definition of merchandise that would be subject to the investigations,”
and squarely endorsed petitioners’s definition of the scope. Id. at 11. Commerce also echoed
petitioners’s definition, stating “[r]e-roll stock is flat-rolled, coiled aluminum product.” Id.
Commerce also stated that re-roll stock was not excluded from the scope, “even where it might
be identified as an ‘intermediate product.’” Id. Although not explicitly addressing F-tempered
products that might be other than re-roll stock, Commerce stated “[w]e continue to find that
products that otherwise meet the definition of aluminum sheet in the first paragraph of the scope
are subject to the scope.” Id.
The 2021 Final Determination is highly persuasive, as it clearly addressed a (k)(1) scope
factor and as it effectively responded to the allegation that F-tempers were not covered by the
ITC injury determination. Therefore, if the F-temper re-roll stock meets the definition of
aluminum sheet in the first paragraph of the scope language, it is within the scope of the Orders.
Here, AA Metals identified the Scenario 2 product, on its arrival to Turkey, as [[ ]]
re-roll stock with a thickness of [[ ]] mm. IQR, Ex. 6; SQR at 12. The product upon entry
into Turkey is re-roll stock, with a thickness and aluminum alloy number within scope of the
order. There is no dispute that upon exportation from Turkey the product, if still a product of
China, was within the scope of the Orders.
B. Scenario 2 Product is Wrought, Flat-Rolled Common Alloy Aluminum Sheet
AA Metals contends that the Scenario 2 product upon entry into Turkey is unwrought,
continuous cast coil. See AA Metals Br. at 18; SQR at 22. Plaintiff and defendant agree that
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continuous cast coil is unwrought and outside the scope of the Orders, despite having a coiling
process as part of the continuous cast procedure.6 Commerce, however, determined in the Final
Scope Determination that the Scenario 2 product was in fact a wrought, rolled product and not an
unwrought, upstream product as AA Metals contends. Final Scope Determination at 8.
The United States relies on two factual matters from AA Metals’s own exhibits in its
questionnaire answers. First, the Government argues that Commerce correctly concluded that
the alloy designation number of Scenario 2 identified the product as wrought aluminum alloy.
Government Br. at 13; see also Final Scope Determination at 8. According to the Aluminum
Association, wrought aluminum alloy uses a four-digit whole number to identify they type of
alloy, shown as XXXX. SQR, Ex. 19 at Appendix A-10A-1. In contrast, cast aluminum alloy
uses a four-digit number system with a decimal point between the third and fourth digits, shown
as XXX.X. SQR, Ex. 19 at Appendix A-10A-3. Scenario 2 product has a four-digit, whole-
number alloy designation of [[ ]]. IQR, Ex. 6 (in which AA Metals’s business records list
Scenario 2 merchandise from China as [[ ]] alloy F-temper products within the dimension set
forth in the scope). The Government argues that the alloy designation number of Scenario 2
indicates that the product is wrought, not cast, aluminum alloy. Government Br. at 13.
Second, the Government argues that a diagram AA Metals submitted as part of the
Supplemental Questionnaire narrative indicates that the product is rolled, wrought aluminum.
Government Br. at 14; see also Final Scope Determination at 8 n.50. According to this diagram,
which is titled “Processing” and sourced from the Aluminum Association, sheet aluminum is
only created after casted products, such as ingots and slabs, go through a rolling process. SQR at
6
Apparently, defendant-intervenor contends that all continuous casting results in rolled merchandise that is within
the scope of the Orders. The court need not address this contention as, even under Commerce’s narrower view, the
product is within scope.
Confidential Information Omitted
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23. As Scenario 2 product is sheet, the Government argues, it must have undergone a flat-rolling
process, separate from any coiling that may have occurred during the casting process. See
Government Br. at 14; see also Final Scope Determination at 8 n.50; SQR, Ex. 6 at I-15–I-18.
The Government relied on the information AA Metals provided in its questionnaire
responses to determine that the Scenario 2 product upon entry into Turkey was wrought, flat-
rolled sheet. The Government’s determination was supported by the substantial evidence.
IV. AA Metals’ Answers Were Not Deficient
AA Metals argues that Commerce should have provided it an opportunity to “address and
correct” deficiencies in the record. AA Metals Br. at 17–21. AA Metals argues that Commerce
concluded that Scenario 2 merchandise was wrought aluminum as a result of a deficient
response. Id. at 17. AA Metals contends that Scenario 2 merchandise was unwrought and that it
did not have any notice that Commerce disagreed. Id. at 20. AA Metals asserts this lack of
notice prevented AA Metals from responding to this inconsistency, creating an error in law. Id.
at 17.
The law governing notice of deficiencies in the record states “[i]f the administering
authority or the Commission determines that a response to a request for information under this
subtitle does not comply with the request, the administering authority . . . shall promptly inform
the person submitting . . . and shall . . . provide that person with an opportunity to remedy or
explain the deficiency . . . .” 19 U.S.C. § 1677m(d) (2023).
AA Metals asserts that Commerce’s determination that the Scenario 2 aluminum was not
“continuous cast coil” constituted a deficiency. AA Metals Br. at 17, 20. This is not the case.
Commerce determined from AA Metals’s questionnaire responses, not that the responses AA
Metals provided were deficient, but that the answers AA Metals gave demonstrated that Scenario
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2 merchandise was within scope. Final Scope Determination at 9. AA Metals appears to read
“deficient” to mean “in conflict with the desires of the company under investigation.” Such an
understanding would twist the meaning of the statute beyond recognition. In addition to the
textual argument, to assume that Commerce has a duty to inform and allow for correction every
time the agency makes a decision that is in conflict with the position of a party would render
Commerce’s duty to implement EAPA completely unadministrable. It is not Commerce’s duty
to notify a company that there will be a ruling adverse to its interests. AA Metals’s argument
fails. The court concludes that Commerce’s inquiries were sufficiently clear and, indeed, were
equally clearly answered.
V. Additional Substantial Transformation Analysis Was Not Necessary
Plaintiff argues that Commerce was required to perform a substantial transformation
analysis to determine if the sheet product that entered the United States was a product of Turkey
and not China. AA Metals’s Br. at 32–37. It cites the traditional test of change in name,
character, or use that is used for Customs country-of-origin determinations and that Commerce
has used in unfair trade proceedings, as plaintiff has noted. Pl. AA Metals, Inc., Reply Br. at 14–
17, ECF No. 30 (Dec. 1, 2022); SQR at 10; see also Cyber Power Sys. (USA) Inc. v. United
States, 46 CIT __, __, 560 F. Supp. 3d 1347, 1350 (2022) (citing Torrington, Co. v. United
States, 764 F.2d 1563, 1568 (Fed. Cir. 1985); E.I. Du Pont de Nemours & Co. v. United States,
22 CIT 370, 372, 8 F. Supp. 2d 854, 857 (1998). Commerce, however, is not required to apply
this traditional test if it has administrative reasons to proceed differently. See Canadian Solar,
Inc. v. United States, 918 F.3d 909, 918–919 (Fed. Cir. 2019).
Here, the Orders specify that:
Subject merchandise includes common alloy sheet that has been further processed
in a third country, including but not limited to annealing, tempering, painting,
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varnishing, trimming, cutting, punching, and/or slitting, or any other processing
that would not otherwise remove the merchandise from the scope of the order if
performed in the country of manufacture of the common alloy sheet.
Antidumping Order, 84 Fed. Reg. at 2815; Countervailing Order, 84 Fed. Reg. at 2158 (emphasis
added).
Consistent with this language, Commerce stated that the re-rolling was a further process that did
not remove the merchandise from the scope of the Orders, irrespective of the country of further
processing. Final Scope Determination at 9. Plaintiff has never explained why Commerce’s
order language is not a reasonable way to bring all of the sheet product that originates in China
that was found to cause injury into the scope of the Orders.
Here, according to Commerce’s findings as to Scenario 2, the aluminum sheet exported
to Turkey was within the scope of the Orders and the finished common alloy aluminum sheet
further processed in Turkey and exported to the United States was also within the scope of the
Orders. Final Scope Determination at 8–9 (finding that the aluminum alloy designation number
clearly marks Scope 2 merchandise as wrought aluminum, and that the F-temper was properly
within scope); IQR, Ex. 6; SQR at 13, 16. Further rolling was “other processing” that did not
remove the merchandise from the scope of the Orders because, under the terms of the Orders, the
processing would not have removed the product from the scope if performed in China. Final
Scope Determination at 9. This is not a transformation that affects the scope as set forth in the
Orders. Because there is agreement that the product that entered the United States from Turkey
was as described in the Orders and the court has already determined that the product that left
China was a product described in the Orders, the product that entered the United States was
within the scope of the Orders.
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CONCLUSION
The court determines that either Commerce did not commit error in interpreting the scope of
the Orders or that such error was not harmful; and it otherwise did not expand the Orders beyond
their scope. Accordingly, the court sustains Commerce’s Final Scope Determination.
_/s/ Jane A. Restani_______
Jane A. Restani, Judge
Dated: _March 10, 2023____
New York, New York