Perfectus Aluminum, Inc. v. United States

• Citation: 391 F.Supp.3d 1341
• Decision Date: 01 July 2019
• Docket Number: Court No. 18-00085,Slip Op. 19-79
• Parties: PERFECTUS ALUMINUM, INC., Plaintiff, v. UNITED STATES, Defendant, and Aluminum Extrusions Fair Trade Committee, Defendant-Intervenor.
• Court: U.S. Court of International Trade

391 F.Supp.3d 1341

PERFECTUS ALUMINUM, INC., Plaintiff,

v. UNITED STATES, Defendant,andAluminum Extrusions Fair Trade Committee, Defendant-Intervenor.

Slip Op. 19-79

Court No. 18-00085

United States Court of International Trade.

Dated: July 1, 2019

David J. Creegan, White and Williams LLP, of Philadelphia, PA, argued for plaintiff. With him on the brief was Platte B. Moring, III ; and J. Kevin Horgan, deKieffer & Horgan, of Washington, DC, argued for plaintiff.

Amie Lee, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, argued for defendant. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and L. Misha Preheim, Assistant Director. Of counsel was Orga Cadet, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.

Robert E. DeFrancesco, III, Wiley Rein LLP, of Washington, DC, argued for defendant-intervenor. With him on the brief was Alan H. Price.

OPINION

Katzmann, Judge:

Can an electronic transmission -- or only snail mail -- qualify as a "mailing?" Do certain pallet products fall within the plain meaning of the scope of an order seeking to effectuate fair trade for domestic producers and industry? This case involves these jurisdictional and scope interpretation issues. Plaintiff Perfectus Aluminum, Inc., ("Perfectus") is an importer and distributor of aluminum extrusions. Defendant-Intervenor Aluminum Extrusions Fair Trade Committee ("AEFTC") is a trade association of domestic producers of aluminum extrusions that requested a scope ruling finding that Perfectus's pallet products composed of aluminum extrusions are subject to the antidumping and countervailing duty orders on aluminum extrusions from the People's Republic of China. Aluminum Extrusions from the People's Republic of China: Antidumping Duty Order, 76 Fed. Reg. 30,650 (Dep't Commerce May 26, 2011) ("Antidumping Duty Order"); Aluminum Extrusions from the People's Republic of China: Countervailing Duty Order, 76 Fed. Reg. 30,653 (Dep't Commerce May 26, 2011) ("Countervailing Duty Order") (collectively, the "Orders"). The United States Department of Commerce ("Commerce") found that Perfectus's merchandise is within the plain language of the scope of the Orders and instructed United States Customs and Border Protection ("Customs") to continue to suspend liquidation of entries back to the date of the first suspension of Perfectus's merchandise. Perfectus appeals Commerce's determination. AEFTC counters that this appeal is untimely because it was commenced more than thirty days after notification of the final scope ruling through email notification, that the case should be dismissed for lack of jurisdiction, and that, in any event, Commerce did not err in its scope ruling. The court (1) concludes that jurisdiction over this action exists because Perfectus's complaint seeking review of the scope ruling was filed within thirty days of the mailing by post of that ruling as required by statute and was therefore timely, and (2) sustains Commerce's finding that the pallet products fall within the plain language of the scope of the Orders.

BACKGROUND

I. Legal and Regulatory Framework of Scope Reviews Generally

Dumping occurs when a foreign company sells a product in the United States for less than fair value -- that is, for a lower price than in its home market. Sioux Honey Ass'n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1046 (Fed. Cir. 2012) ). Similarly, a foreign country may provide a countervailable subsidy to a product and thus artificially lower its price. U.S. Steel Grp. v. United States, 96 F.3d 1352, 1355 n.1 (Fed. Cir. 1996). To empower Commerce to offset economic distortions caused by dumping and countervailable subsidies, Congress enacted the Tariff Act of 1930.¹

Sioux Honey Ass'n, 672 F.3d at 1046–47. Under the Tariff Act's framework, Commerce may -- either upon petition by a domestic producer or of its own initiative -- begin an investigation into potential dumping or subsidies and, if appropriate, issue orders imposing duties on the subject merchandise. Id.

Because the description of products contained in the scope of an antidumping or countervailing duty order must be written in general terms to encompass the full range of subject merchandise, issues may arise as to whether a particular product is included within the scope of the order. See 19 C.F.R. § 351.225(a). To provide producers and importers with notice as to whether their products fall within the scope of an antidumping or countervailing duty order, Congress authorized Commerce to issue scope rulings clarifying "whether a particular type of merchandise is within the class or kind of merchandise described in an existing ... order." 19 U.S.C. § 1516a(a)(2)(B)(vi). As "no specific statutory provision govern[s] the interpretation of the scope of antidumping or countervailing orders," Commerce and the courts developed a three-step analysis. Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, 776 F.3d 1351, 1354 (Fed. Cir. 2015) ; Polites v. United States, 35 C.I.T. 312, 313–14, 755 F. Supp. 2d 1352, 1354 (2011) ; 19 C.F.R. § 351.225(k).

Because "[t]he language of the order determines the scope of an antidumping duty order[,]" any scope ruling begins with an examination of the language of the order at issue. Tak Fat Trading Co. v. United States, 396 F.3d 1378, 1382 (Fed. Cir. 2005) (citing Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed. Cir. 2002) ). If the terms of the order are unambiguous, then those terms govern. Id. at 1382–83. "[T]he question of whether the unambiguous terms of a scope control the inquiry, or whether some ambiguity exists is a question of law that we review de novo." Meridian Prod., LLC v. United States, 851 F.3d 1375, 1382 (Fed. Cir. 2017). "Although the scope of a final order may be clarified, it can not be changed in a way contrary to its terms." Duferco, 296 F.3d at 1097 (quoting Smith Corona Corp. v. United States, 915 F.2d 683, 686 (Fed. Cir. 1990) ). For that reason, "if [the scope of an order] is not ambiguous, the plain meaning of the language governs." ArcelorMittal Stainless Belg. N.V. v. United States, 694 F.3d 82, 87 (Fed. Cir. 2012).

"In determining the common meaning of a term, courts may and do consult dictionaries, scientific authorities, and other reliable sources of information, including testimony of record." NEC Corp. v. Dep't of Commerce, 23 C.I.T. 727, 731, 74 F. Supp. 2d 1302, 1307 (1999) (quoting Holford USA Ltd. v. United States, 19 C.I.T. 1486, 1493–94, 912 F. Supp. 555, 561 (1995) ). Furthermore, "[b]ecause the primary purpose of an antidumping order is to place foreign exporters on notice of what merchandise is subject to duties, the terms of an order should be consistent, to the extent possible, with trade usage." ArcelorMittal, 694 F.3d at 88.

If Commerce determines that the terms of the order are either ambiguous or reasonably subject to interpretation, then Commerce "will take into account ... the descriptions of the merchandise contained in the petition, the initial investigation, and [prior] determinations [of Commerce] (including prior scope determinations) and the [International Trade] Commission." 19 C.F.R. § 351.225(k)(1) ("(k)(1) sources"); Polites, 755 F. Supp. 2d at 1354 ; Meridian, 851 F.3d at 1382. To be dispositive, the (k)(1) sources "must be ‘controlling’ of the scope inquiry in the sense that they definitively answer the scope question." Polites, 755 F. Supp. 2d at 1354 (quoting Sango Int'l v. United States, 484 F.3d 1371, 1379 (Fed. Cir. 2007) ). If Commerce "can determine, based solely upon the application and the descriptions of the merchandise referred to in paragraph (k)(1) of ... section [351.225], whether a product is included within the scope of an order ... [Commerce] will issue a final ruling[.]" 19 C.F.R. § 351.225(d).

If a § 351.225(k)(1) analysis is not dispositive, Commerce will initiate a scope inquiry under § 351.225(e) and apply the five criteria from Diversified Prods. Corp. v. United States, 6 C.I.T. 155, 162, 572 F. Supp. 883, 889 (1983) as codified in 19 C.F.R. § 351.225(k)(2).²

II. Factual and Procedural History of the Orders

On May 26, 2011, after the International Trade Commission had determined that imports of certain aluminum extrusions were materially injuring United States industry, Commerce issued antidumping and countervailing duty orders covering 1xxx, 3xxx, and 6xxx aluminum extrusions from China. Orders. The scope of the Orders reads, in relevant part:

The merchandise covered by the order is 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 ...

The scope ... excludes 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.

Antidumping Duty Order, 78 Fed. Reg. at 30,650–51.³

III. Factual and Procedural History of this Case

On March 3, 2017, AEFTC filed a request with Commerce to determine that certain 6xxx aluminum extrusions from China are within the scope of the Orders. Petitioner's Scope Ruling Request for 6xxx Series Aluminum Pallets (Mar. 3, 2017), Public Record ("P.R.") 1–7, Confidential Record ("C.R.") 1–7 ("6xxx Scope Ruling Request"). In the 6xxx Scope Ruling Request, AEFTC described the merchandise at issue as follows: "extruded profiles made of series 6xxx aluminum alloy cut-to-length and welded in the shape of pallets ... regardless of producer or exporter." Id. at 5.

Commerce issued the requested scope ruling on June 13, 2017, finding that the merchandise at issue is...