                                          Slip Op. 19-

                UNITED STATES COURT OF INTERNATIONAL TRADE


 TAI-AO ALUMINIUM (TAISHAN) CO.,
 LTD. AND TAAL AMERICA LTD.,

                        Plaintiffs,

        and

 REGAL IDEAS INC.,

                        Consolidated Plaintiff,
                                                   Before: Gary S. Katzmann, Judge
                                                   Consol. Court No. 17-00216
        v.

 UNITED STATES,

                        Defendant,

        and

 THE ALUMINUM EXTRUSIONS FAIR
 TRADE COMMITTEE,

                        Defendant-Intervenor.


                                            OPINION

[Plaintiff’s motion for judgment on the agency record is granted in part and denied in part.
Commerce’s Final Results are remanded consistent with this opinion.]

                                                                     Dated: -XQH

Jordan C. Kahn, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, of New York, NY,
argued for plaintiffs. With him on the brief were Ned H. Marshak and Peter W. Klestadt.

Arthur K. Purcell and Kristen Smith, Sandler, Travis & Rosenberg, PA, of Washington, DC,
argued for consolidated plaintiff. With them on the brief were David J. Craven and Emi Ito Ortiz.

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 Reginald T. Blades, Jr., Assistant
Consol. Court No. 17-00216                                                                  Page 2


Director. Of counsel was Jessica M. Link, Assistant Chief Counsel, 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.

       Katzmann, Judge: This case involves issues of scope interpretation and notice in an

anticircumvention investigation. Tai-Ao Aluminum Company (“Tai-Ao”) and Regal Ideas, Inc.

(“Regal”) (collectively, “Plaintiffs”) are importers of heat-treated 5050-grade aluminum

extrusions from the People’s Republic of China (“PRC”). The United States Department of

Commerce (“Commerce”) had issued antidumping and countervailing duty orders on extrusions

made from aluminum alloys with the Aluminum Association designations of series 1xxx, 3xxx,

and 6xxx. Aluminum Extrusions from the People’s Republic of China: Antidumping Order, 76

Fed. Reg. 30,650 (Dep’t Commerce May 26, 2011); Aluminum Extrusions from the People’s

Republic of China: Countervailing Duty Order, 76 Fed. Reg. 30,653 (Dep’t Commerce May 26,

2011) (collectively, “the Orders”). The scope of the Orders specifically excludes extrusions made

from alloys designated as 5xxx. After the Orders’ publication, Commerce determined, pursuant

to an anticircumvention inquiry, that imports of 5050-grade extrusions exported by a Chinese

company were later-developed merchandise circumventing the Orders. Commerce also ordered

Customs and Border Patrol (“CBP”) to suspend liquidation on heat-treated 5050-grade extrusions

retroactive to the initiation of the anticircumvention inquiry.

       Plaintiffs contend that Commerce’s determination is unsupported by substantial evidence

and contrary to law. They also argue that the anticircumvention inquiry’s initiation notice did not

provide adequate notice that their products were subject to the inquiry and therefore that

liquidation should not have been suspended as of that date. The court sustains Commerce’s
Consol. Court No. 17-00216                                                                    Page 3


anticircumvention determination but concludes that retroactive suspension of liquidation was

impermissible under the circumstances here.

                                         BACKGROUND

       I.    Legal and Regulatory Framework for Anticircumvention Inquiries.

       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., 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 prevent foreign

products from undercutting the domestic market and to offset economic distortions caused by

dumping and countervailable subsidies, Congress enacted the Tariff Act of 1930. Canadian Solar,

Inc. v. United States, 918 F.3d 909, 913 (Fed. Cir. 2019); 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. Sioux Honey Ass’n, 672

F.3d at 1047.

       Anticircumvention inquiries “prevent foreign producers from circumventing existing

findings or orders through the sale of later-developed products or of products with minor

alterations that contain features or technologies not in use in the class or kind of merchandise

imported into the United States at the time of the original investigation.” S. Rep. No. 100–71, at

101 (1987) (quoted in Wheatland Tube Co. v. United States, 161 F.3d 1365, 1370 (Fed. Cir.

1998)); see 19 U.S.C. § 1677j. “Congress has provided that Commerce’s consideration of certain

types of articles within the scope of an order will be a proper clarification or interpretation of the
Consol. Court No. 17-00216                                                                  Page 4


order instead of improper expansion or change even where these products do not fall within the

order’s literal scope.” Wheatland Tube, 161 F.3d at 1370. Of relevance here, Commerce may

properly consider “later-developed products that would have been included in the order” had they

existed at the time the order was issued. Id. (citing 19 U.S.C. § 1677j(d)).

       When determining whether a product is later-developed, Commerce considers whether the

merchandise was commercially available at the time the order was issued. See Target Corp. v.

United States (“Target III”), 609 F.3d 1352, 1357 (Fed. Cir. 2010).            Commerce defines 1

commercial availability as “products either present in the commercial market or fully developed,

i.e., tested and ready for production.” Id. at 1358. When determining whether a later-developed

product would have been included in the original order, Commerce must consider whether: (1) the

later-developed product “has the same general physical characteristics” as the products “with

respect to which the order was originally issued”; (2) the purchasers of the products have the same

expectations; (3) the ultimate uses for the products are the same; (4) the same channels of trade

are used; and (5) the products are advertised and displayed in a similar way. 19 U.S.C. §

1677j(d)(1). If Commerce determines that a later-developed product is circumventing the scope

of an order and the product constitutes a “significant technological advancement or significant

alteration of an earlier product,” it must notify the International Trade Commission (“ITC”). 19

U.S.C. § 1677j(e)(1)(C).

       When Commerce initiates an anticircumvention inquiry, it must provide notice by

publishing the inquiry in the Federal Register. 19 C.F.R. § 351.225(f). Importers are charged with

knowledge of regulations as of the date they are published. See Target Corp. v. United States




1
  In Target III, the Federal Circuit conducted a Chevron analysis and found the term “later-
developed” ambiguous and Commerce’s definition reasonable. 609 F.3d at 1359.
Consol. Court No. 17-00216                                                                  Page 5


(“Target II”), 33 CIT 760, 779–80, 626 F. Supp. 2d 1285, 1301 (2009), aff’d, 609 F.3d 1352 (Fed.

Cir. 2010) (citing 44 U.S.C. § 1507; Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380, 384–85 (1947)).

By regulation, the notice must contain “[a] description of the product that is the subject of the

scope inquiry.” 19 C.F.R. § 351.225(f)(1)(i). When Commerce reaches an affirmative preliminary

determination, any suspension of liquidation will continue. 19 C.F.R. § 351.225(l)(2). “[I]f

liquidation has not been suspended[,]” Commerce will instruct CBP “to suspend liquidation . . .

[retroactive to] the date of initiation of the scope inquiry.” Id.

       II.   Background of the Aluminum Extrusions Anticircumvention Order.

       In 2011, Commerce investigated and then issued antidumping and countervailing duty

orders on aluminum extrusions from the PRC. Orders. The Orders covered aluminum extrusions

made from “alloy series designations published by [t]he Aluminum Association commencing with

1, 3, and 6” but excluded “[a]luminum extrusions made from aluminum alloy with an Aluminum

Association series designation commencing with the number 5.” Orders at 30,650–51. The 6xxx

designation covers alloys containing between .1% and 2% magnesium and .1% to 3% silicon. Id.

The 5xxx designation covers alloys containing more than 1% magnesium. Id.

       Pursuant to the Orders, Commerce issued a scope ruling on a heat-treated 5050-grade

aluminum extrusion product which found them to be outside the Orders’ scope. See Final Scope

Ruling on Aluminum Rails for Showers and Carpets (Dep’t Commerce Sept. 6, 2012). Then, in

2016, Commerce initiated an anticircumvention inquiry in response to a request by the Aluminum

Extrusions Fair Trade Committee (“AEFTC”) to determine if heat-treated 5050-grade extrusions

were later-developed merchandise circumventing the Orders. Aluminum Extrusions from the

People’s Republic of China: Initiation of Anti-Circumvention Inquiry, 81 Fed. Reg. 15,039 (Dep’t

Commerce Mar. 21, 2016), AD PD 164 (“Initiation Notice”). The Initiation Notice stated that
Consol. Court No. 17-00216                                                                   Page 6


“[t]his anti-circumvention inquiry covers extruded aluminum products that meet the chemical

specifications for 5050-grade aluminum alloy, which are heat-treated, and exported by

Zhongwang” and that Commerce “intends to consider whether the inquiry should apply to all

imports of [5050-grade] extruded aluminum . . . regardless of producer, exporter, or importer, from

the PRC.” Id. at 15,042. The Initiation Notice also stated that Commerce was conducting the

anticircumvention inquiry pursuant to § 1677j(d), later-developed products. Id. The AEFTC

contended, as summarized by Commerce, Commerce that:

       the scope of the Orders creates an overlap between the chemical composition
       standards in that there is a narrow window in which a 5xxx series alloy may and
       does exist that is comprised of more than one percent but less than two percent
       magnesium by weight, and that in order to use 5xxx-series alloy (i.e., 5050 alloy)
       in an extrusion application, the metal would have to be heat-treated to achieve the
       mechanical properties that make 6xxx-series alloy so attractive for extrusion
       applications.

Initiation Notice at 15,040 (quotation marks omitted). Additionally, Commerce noted that heat-

treatment process was not in use with the 5050-grade alloy at the time of the Orders and that the

Aluminum Association guidelines 2 did not recognize this type of treatment at the time of the

Orders. Id. at 15,042–44. Commerce issued a questionnaire to Zhongwang during the inquiry,

but Zhongwang failed to respond. Aluminum Extrusions From the People’s Republic of China:

Affirmative Preliminary Determination of Circumvention of the Antidumping and Countervailing

Duty Orders and Intent To Rescind Minor Alterations Anti-Circumvention Inquiry, 81 Fed. Reg.

79,444, 79,445 (Dep’t Commerce Nov. 14, 2016) (“Preliminary Determination”), AD PD 155,

CVD PD 158, and accompanying memorandum (“PDM”), AD PD 86, CVD PD 85.




2
  The Aluminum Association is the authority that maintains the standards for the U.S. aluminum
industry with respect to aluminum alloy designations, the chemical composition for the alloys, and
the approved tempering methods for the different alloys. See PDM at 8; Resubmission of
Circumvention Inquiry Request at 53–54 (Dec. 30, 2015), AD PD 57–61, AD CD 66–72.
Consol. Court No. 17-00216                                                                     Page 7


       The Preliminary Determination was released on November 14, 2016.                    Commerce

determined that heat-treated 5050-grade aluminum extrusions were later-developed products

circumventing the Orders and suspended liquidation on all heat-treated 5050-grade aluminum

extrusions from the PRC, regardless of producer, retroactive to the initiation of the inquiry.

Preliminary Determination, 81 Fed. Reg. at 79,445–46. Commerce based its determination on

evidence submitted by the AEFTC and Endura Products, Inc., a domestic producer. See PDM at

2. Commerce found that heat-treated 5050-grade extrusions were not commercially available at

the time of the Orders. Id. at 8. Commerce explained that, while the 5050-grade alloy was

commercially available at the time of the initial Orders, it was used in rolling and plate applications

and not used to form heat-treated extrusions. Id. at 8 (citing Resubmission of Circumvention

Inquiry Request at 54, Ex. 21, Ex. 27 (Dec. 30, 2015), AD PD 57). Additionally, an importer of

the merchandise stated that the heat-treated 5050-grade extrusions had been developed to meet the

requirements of the industry around the imposition of the tariffs. Id. (citing Resubmission of

Circumvention Inquiry Request at Ex. 28). Evidence also indicated that Columbia Aluminum

Products LLC, the largest importer of door thresholds and sills, had substituted heat-treated 5050-

grade extrusions in place of in-scope merchandise after the imposition of the Orders. Id. at 9.

Finally, the Aluminum Association did not recognize, at the time of the Orders, 3 the series 5xxx

alloys as heat-treatable.

       Commerce also examined evidence relating to the statutory criteria 4 and determined heat-

treated 5050-grade extrusions were circumventing the Orders. PDM at 9–12; see 19 U.S.C. §



3
   The Aluminum Association still does not recognize the series 5 alloys as heat-treatable. PDM
at 8 (citing Resubmission of Circumvention Inquiry at 54, Ex. 21, Ex. 27).
4
  Plaintiffs do not appear to challenge this aspect of Commerce’s PDM or its IDM counterpart.
The court therefore does not address Commerce’s specific findings regarding these criteria.
Consol. Court No. 17-00216                                                                 Page 8


1677j(d)(1). Commerce further determined heat-treated 5050-grade extrusions did not incorporate

a significant technological advancement 5 because the merchandise mimicked the physical and

chemical properties of 6xxx in-scope merchandise. Id. at 6.

       Additionally, Commerce preliminarily determined that the inquiry should apply to all PRC

exporters, PDM at 7–8, because evidence had been submitted “indicating at least 25 other Chinese

companies [] are producing and/or exporting inquiry merchandise,” id. at 7 (citing Letter from

Wiley Rein to U.S. Dep’t of Commerce (Oct. 7, 2016), PD 83 CD 82). Commerce instructed CBP

to suspend liquidation of all heat-treated 5050-grade extrusions, regardless of producer, from the

PRC from the date of the Initiation Notice, March 21, 2016. Preliminary Determination, 81 Fed.

Reg. at 79,446.

       Following the Preliminary Determination, Plaintiffs petitioned Commerce to submit New

Factual Information (“NFI”) related to the anticircumvention inquiry. Letter from Sandler, Travis,

& Rosenberg to U.S. Dep’t of Commerce (Nov. 10, 2016) (“Regal’s NFI Request”), AD PD 89,

CVD PD 88. Commerce granted this request and set January 6, 2017 as the deadline for NFI

submissions. Regal made NFI submissions on November 30, 2016 and January 6, 2017. Letter

from Sandler, Travis, & Rosenberg to U.S. Dep’t of Commerce (Nov. 30, 2016) (“Regal’s

November 30, 2016 Submission”), PD 91; Letter from Sandler, Travis, & Rosenberg to U.S.

Department of Commerce (Jan. 6, 2017) (“Regal’s January 6, 2017 Submission”), PD 98–100.

Commerce then set April 17, 2017 as the deadline to submit briefs and April 24, 2017 as the

deadline to submit rebuttal briefs. U.S. Dep’t of Commerce Memorandum to File (Apr. 10, 2017)

(“Case Brief Schedule”), AD PD 127, CVD PD 130. On April 13, 2017, Commerce extended the




5
  19 U.S.C. § 1677j(e)(1)(C) requires that when merchandise “incorporates a significant
technological advance” that Commerce notify the ITC before making a determination.
Consol. Court No. 17-00216                                                                    Page 9


deadlines to submit case briefs and rebuttal briefs to April 24, 2017, and May 1, 2017, respectively.

U.S. Dep’t of Commerce Memorandum to All Interested Parties (Apr. 13, 2017) (“Case Brief

Schedule Extension”), AD PD 131, CVD PD 134. On April 28, 2017, Regal attempted to submit

additional NFI which Commerce rejected as untimely. Letter from U.S. Dep’t of Commerce to

Sandler, Travis, & Rosenberg (May 1, 2017) (rejecting Regal’s NFI submission), AD PD 141,

CVD PD 144. Commerce issued its Final Determination on July 20, 2017. Aluminum Extrusions

From the People’s Republic of China: Affirmative Final Determination of Circumvention of the

Antidumping and Countervailing Duty Orders and Rescission of Minor Alterations Anti-

Circumvention Inquiry, 82 Fed. Reg. 34,630 (Dep’t Commerce July 26, 2017) (“Final

Determination”), AD PD 161, CVD PD 166, and accompanying Issues and Decision

Memorandum, (Dep’t Commerce July 20, 2017) (“IDM”), AD PD 159, CVD PD 162.

       Commerce found that heat-treated 5050-grade aluminum extrusions were circumventing

the orders and affirmed the Preliminary Determination. IDM at 1–2. Commerce determined that

past scope inquiries, which had found that heat-treated 5050-grade extrusions were not within the

scope of the Orders, did not preclude an anticircumvention inquiry. Id. at 27. Commerce found

that the products were not commercially available at the time of the initial Orders and therefore

were later-developed products. Id. at 15–24. Commerce relied on a variety of evidence including

the Aluminum Association standards, which do not recognize heat-treatment of the 5050-grade

alloy but do refer to the 6xxx series as being heat-treatable. Id. at 16–17. Plaintiffs provided

evidence from a 2002 Australian government specification for signs that required heat-treated

5050-grade aluminum extrusions. Id. at 14. However, Commerce credited the expert opinion of

Luke Hawkins, who stated this was likely an error. Id. at 19–20. Commerce found that Chinese

exporters exploited the chemical overlap between the 5050-grade alloy and series 6xxx to create
Consol. Court No. 17-00216                                                                  Page 10


extrusions that fell outside the scope of the Orders but could be used to replace series 6xxx

products. Id. at 22. Commerce then analyzed whether the heat-treated 5050-grade extrusions met

the five statutory criteria, supra p. 4, used to determine whether a later-developed product falls

within an order’s scope, and found that they were met. Id. at 21–24. For these reasons, Commerce

concluded that heat-treated 5050-grade extrusions were later-developed products that were

circumventing the Orders. Id. at 15–24.

                      JURISDICTION AND STANDARD OF REVIEW

        This court has jurisdiction in this proceeding pursuant to 28 U.S.C. § 1581(c) and 19 U.S.C.

§ 1516a(a)2(B)(vi).       The standard of review in this action is set forth in 19 U.S.C. §

1516a(b)(1)(B)(i): “[t]he court shall hold unlawful any determination, finding or conclusion found.

. . to be unsupported by substantial evidence on the record, or otherwise not in accordance with

law.”

                                          DISCUSSION

        Plaintiffs contend that Commerce’s determination is unsupported by substantial evidence

and contrary to law because 5xxx extrusions were specifically excluded from the scope of the

Orders, record evidence did not show that 5050-grade extrusion products are later-developed

merchandise, and Commerce arbitrarily rejected one of Regal’s factual submissions. Plaintiffs

also argue that, because the Initiation Notice did not provide adequate notice that their products

were subject to the inquiry, liquidation should not have been suspended as of the Initiation Notice’s

date.   For the reasons stated below, the court sustains Commerce’s anticircumvention

determination but concludes that retroactive suspension of liquidation was impermissible under

the circumstances here.
Consol. Court No. 17-00216                                                                Page 11


       I.    Commerce Acted Within Its Authority in Conducting the Anticircumvention
             Inquiry.
       As has been noted, Commerce initiated a later-developed products inquiry to determine

whether heat-treated 5050-grade extrusion products were circumventing the Orders. Plaintiffs

argue that Commerce impermissibly conducted a later-developed products anticircumvention

inquiry because (1) previous scope rulings related to heat-treated 5050-grade extrusions found

them outside the scope and (2) the language of the orders excludes series 5xxx extrusions. The

court is not persuaded.

       First, the existence of a previous scope ruling finding a 5050-grade heat-treated extrusion

product outside the literal scope of the Orders does not preclude Commerce from undertaking an

anticircumvention inquiry. The purpose of the anticircumvention inquiry is to address efforts by

manufacturers to create products that fall outside the literal scope of an order to circumvent the

order. See Wheatland, 161 F.3d at 1370 (citation omitted). Thus, “[i]n order to effectively combat

circumvention of antidumping duty orders, Commerce may determine that certain types of articles

are within the scope of a duty order, even when the articles do not fall within the order’s literal

scope.” Deacero S.A. De C.V. v. United States, 817 F.3d 1332, 1337 (Fed. Cir. 2016) (internal

citation omitted). Thus, as the Federal Circuit held in Target III, Commerce is not precluded from

conducting an anticircumvention inquiry “by its earlier conventional scope rulings . . . [because]

conventional scope inquiries are different from anticircumvention inquiries.” 609 F.3d at 1362

(“Conventional scope inquiries are different from anticircumvention inquiries because they are

separate proceedings and address separate issues.”). Moreover, contrary to Plaintiffs’ contentions,

this interpretation would not permit Commerce to arbitrarily rewrite an order’s scope at will. 19

U.S.C. § 1677j provides specific statutory factors, discussed above, that Commerce must consider

when making a later-developed product anticircumvention determination.
Consol. Court No. 17-00216                                                                   Page 12


       Plaintiffs argue, citing Wheatland, that Commerce’s anticircumvention inquiry was

improper because the scope of the Orders explicitly excludes 5xxx extrusions. See 161 F.3d at

1370 (“Commerce was aware of the limitations on its authority to interpret the scope of an order .

. . [I]t can neither change them nor interpret them contrary to their terms” (quotations and citations

omitted)). However, Wheatland is distinguishable. In that case, Commerce conducted a minor

alterations inquiry even though the merchandise was commercially available at the time of the

initial investigation, was not examined by the ITC at the petitioner’s request, and was intentionally

specifically excluded from the scope. Id. at 1367, 1369. In contrast, here, the exclusion does not

preclude Commerce from conducting the anticircumvention inquiry because products not in

existence at the time that an order’s scope is written cannot be intentionally, expressly excluded.

See Target III, 609 F.3d at 1363.

       The Federal Circuit case Target III, which involved an anticircumvention inquiry into later-

developed merchandise outside the literal scope of the relevant order, is analogous. 609 F.3d at

1355. In that case, the products subjected to the ITC injury investigation did not include the

products that were the issue of the anticircumvention inquiry. Id. at 1363. Addressing the

argument that the scope language indicated the merchandise was “clearly and unambiguously”

excluded from the order, the Federal Circuit held that, because the “later-developed merchandise

was not present in the market at the time of the [relevant] investigation[,] the [order] could not

have addressed” the merchandise. Id. Similarly, in this case, Commerce correctly concluded that

the “Orders could not have addressed” heat-treated 5050-grade extrusions because they are later-

developed products, infra pp. 13–15, and therefore initiating an anticircumvention inquiry was in

accordance with law. See Target III, 609 F.3d at 1363.
Consol. Court No. 17-00216                                                                Page 13


       II.   Commerce’s Determination That the 5050-Grade Heat-Treated Extrusions Are
             Later-Developed Products Circumventing the Orders Is Supported by Substantial
             Evidence and in Accordance with Law.

       Plaintiffs argue Commerce’s finding that 5050-grade heat-treated aluminum extrusions are

later-developed products is unsupported by substantial evidence and not in accordance with the

law. The court concludes otherwise.

       As discussed above, for a product to be later-developed, Commerce applies the

“commercial availability” test which examines whether the merchandise was “present in the

commercial market or fully developed” at the time of the investigations. See Target III, 609 F.3d

at 1358–59. The record supports Commerce’s conclusion that heat-treated 5050-grade extrusions

were not commercially available at the time of the Orders. The Aluminum Association, whose

standards are used to define the exception, see supra note 2, defines 5xxx alloys as non-heat-

treatable. PDM at 8; IDM at 16–18. Additionally, industry catalogs contained in the record did

not offer the 5050-grade alloy as an alternative to the series 6 alloy until after the Orders were

issued. PDM at 9; IDM at 17, 19. Finally, an importer stated that heat-treated 5050-grade

extrusions were developed after the Orders were issued for the purpose of replacing in-scope

merchandise. PDM at 9; IDM at 17, 19.

       Plaintiffs contend that Commerce ignored other record evidence that contradicted its

conclusion. Specifically, Plaintiffs note: (1) that the 5050-grade alloy was recognized by the

Aluminum Association and patented prior to the Orders; (2) that the Australian Government’s

Standard Specifications for Urban Infrastructure Works (“SSUIW”) mentioned heat-treated 5050-

grade extrusions as a possible material that could be used for metal signs; and (3) that Tai-Ao was

extruding the 5052 alloy by the same process as heat-treated 5050-grade extrusions at the time the

Orders were issued.
Consol. Court No. 17-00216                                                                 Page 14


       These arguments are unavailing. First, as Commerce explained in its IDM, although the

Aluminum Association recognized the use of 5050-grade alloy for rolling and plate applications,

the anticircumvention inquiry specifically involves heat-treated 5050-grade extrusions, which the

Aluminum Association did not recognize. See IDM at 17–18. This distinction is significant

because heat-treatment of the 5050-grade alloy changes its physical properties and causes it to

behave more similarly to series 6xxx alloys, which are recognized as heat-treatable and are within

the scope of the Orders. Id. (citing Resubmission of Circumvention Inquiry at Ex. 28 (explaining

how this effect is achieved)). Additionally, the scope’s exclusionary language is based on the

Aluminum Association’s standards. Orders at 30,651 (excluding “extrusions made from an alloy

with an Aluminum Association series designation commencing with the number 5”).

       Commerce’s determination is also not undermined by either the existence of the Australian

SSUIW or production of 5052 extrusions prior to the Orders. As has been noted, the affidavit of

Luke Hawkins, the general manager of Australia’s largest manufacturer and distributor of

aluminum profiles and a company to which the SSUIW applied, stated the reference to the 5050-

grade alloy in the SSUIW was likely an error. IDM at 19–20; see also Letter from Wiley Rein to

U.S. Dep’t of Commerce at Ex. 5 (Feb 8, 2017), PD 112, CD 85–86 (“Given that there is no

production of 5050 aluminum alloy extrusions in the Australian market so far as I am aware, the

reference to ‘Grade 5050 - T5’ in the mentioned specifications for road signs appears to be an error

. . . [T]his temper designation is not applicable to [the] non-heat treatable . . . 5050 aluminum

alloy.”). The record contains a letter from an importer of merchandise made from these extrusions

that indicates heat-treated 5050-grade extrusions were developed around the time of the Orders.

See PDM at 8; IDM at 17 (citing Resubmission of Circumvention Inquiry at Ex. 28 (“It was at this

time that the Chinese developed the 5050 alloy that met the requirements of our industry.”))
Consol. Court No. 17-00216                                                              Page 15


Industry brochures in the record also supported Commerce’s determination: prior to the Orders,

advertised merchandise was composed of in-scope materials, while after the Orders’ imposition,

the same products were instead made from heat-treated 5050-grade extrusions. See PDM at 9;

IDM at 17 (citing Letter to the Sec’y from Endura, “Aluminum Extrusions from the People’s

Republic of China - AntiCircumvention Submission of Endura Products, Inc.” (Sept. 28, 2016) at

17, Ex. 5 (brochures showing that the same products were advertised using either in-scope

merchandise or 5050-grade heat-treated extrusions)). Finally, the issue presented here is the

commercial availability of 5050-grade heat-treated extrusions, not the 5052-grade alloy or any

other 5xxx series extrusions, so the existence of these unrelated products in no way undermines

Commerce’s determination. IDM 20–21. Commerce’s determination that heat-treated 5050-grade

extrusions were commercially unavailable at the time the Orders were issued is thus supported by

substantial evidence.

       III. Commerce’s Rejection of Regal’s Late NFI Was Not an Abuse of Discretion.

       Regal argues that Commerce’s decision to reject its NFI filing on April 28, 2017 was an

abuse of discretion. The court is not persuaded.

       “Absent constitutional constraints or extremely compelling circumstances[,] the

administrative agencies should be free to fashion their own rules of procedure and to pursue

methods of inquiry capable of permitting them to discharge their multitudinous duties.” Vt.

Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 435 U.S. 519, 543 (1978) (quotations

and citations omitted). Commerce may set a deadline for the submission of NFI, 19 C.F.R. §

351.301(a), and Commerce need only consider information submitted before the deadline when

making its determination, 19 U.S.C. § 1677m(e).
Consol. Court No. 17-00216                                                                  Page 16


       Here, the NFI was submitted on April 28, 2017, not only after the deadline for the

submission of factual information, but also after the deadline for case briefs. U.S. Dep’t of

Commerce Memorandum to File (Dec. 30, 2016), AD PD 96 (setting the deadline for submission

factual information to January 6, 2017); Case Brief Schedule; Case Brief Schedule Extension.

Thus, Regal’s late submission of NFI would affect the parties’ ability to respond to that NFI.

Moreover, Commerce had already accepted NFI submissions consisting of several thousand pages

on November 30, 2016 and January 6, 2017. Regal’s November 30, 2016 Submission; Regal’s

January 6, 2017 Submission. Commerce’s decision to reject the NFI submitted on April 28, 2017

is consistent with the relevant regulations and within its statutory authority. 19 U.S.C. § 1677m(e);

19 C.F.R. § 351.301(a). Finally, Regal has not explained why it was unable to submit the

document, which was published in 2004, within the deadlines. Therefore, Commerce did not abuse

its discretion when it rejected Regal’s untimely NFI submission.

       IV. Commerce Erred in Retroactively Applying the Duty to the Date of Initiation
           Rather Than the Date of the Preliminary Determination with Respect to Regal and
           Tai-Ao.

       In the Preliminary Determination, as affirmed in the Final Determination, Commerce

directed CBP “to suspend liquidation of inquiry merchandise from the PRC . . . on or after March

21, 2016, the date of publication of the initiation of this inquiry.” Preliminary Determination, 81

Fed. Reg. at 79,446; Final Determination, 82 Fed. Reg. at 34,631. Plaintiffs argue that Commerce

incorrectly assessed suspension of liquidation from the date of the Initiation Notice because its

language did not clearly indicate that the investigation applied to any PRC exporters other than

Zhongwang. The court concludes Commerce’s decision to suspend liquidation with respect to

Plaintiffs from the date of the Initiation Notice was impermissible because Plaintiffs did not

receive adequate notice at that time. The Preliminary Determination provided the first notice that
Consol. Court No. 17-00216                                                                   Page 17


Plaintiffs’ products were subject to the inquiry, and therefore liquidation should be assessed as of

that date.

        Importers are charged with knowledge of the regulations as of the date that they are

published. See Target II, 626 F. Supp. 2d at 1301 (citing 44 U.S.C. § 1507; Fed. Crop Ins., 332

U.S. at 384–85). When the scope is ambiguous, Commerce cannot suspend liquidation before a

formal inquiry is initiated and notice provided. See Sunpreme Inc. v. United States, __ F.3d __,

2019 WL 2127934, at *11 (Fed. Cir. May 16, 2019) (“Although Commerce . . . can interpret the

scope of unclear or ambiguous duty orders, our case law is clear that even Commerce cannot order

suspension of liquidation of merchandise covered by such orders before the scope inquiry was

initiated.”); AMS Assocs. v. United States, 737 F.3d 1338, 1344 (Fed. Cir. 2013) (“Accordingly,

when Commerce ‘clarifies’ the scope of an existing antidumping duty order that has an unclear

scope, the suspension of liquidation and imposition of antidumping cash deposits may not be

retroactive but can only take effect ‘on or after the date of the initiation of the scope inquiry.’”

(quoting 19 C.F.R. § 351.225(l)(2))). When an affirmative preliminary determination is reached

in an anticircumvention inquiry and liquidation of the merchandise has not been suspended, it is

usually suspended retroactive to the date of the initiation of the inquiry. 19 C.F.R § 351.225(l)(2).

The initiation is required to provide “[a] description of the product that is the subject of the scope

inquiry.” 19 C.F.R § 351.225(f)(1)(i). Typically, “publication [in the Federal Register] . . . is

sufficient to give notice of the contents of the document to a person subject to or affected by it.”

44 U.S.C. § 1507. “What the statutory and regulatory notification provisions require is that any

reasonably informed party should be able to determine, from the published notice of initiation read

in light of announced Commerce Department policy, whether particular entries in which it has an
Consol. Court No. 17-00216                                                                  Page 18


interest may be affected by the administrative review.”         Transcom, Inc. v. United States

(“Transcom I”), 182 F.3d 876, 882–83 (Fed. Cir. 1999).

       In this case, it is undisputed that the products were not clearly included within the scope of

the order. Thus, Commerce cannot suspend liquidation until the date at which it provided the

parties notice that their products could be subject to the administrative action. See Sunpreme,

2019 WL 2127934, at *11 (“Commerce can only act prospectively when the scope of an order is

unclear or ambiguous, and thus retroactive authorization of suspension of liquidation is

prohibited.” (citation omitted)); AMS Assocs., 737 F.3d at 1344. The language in the Initiation

Notice here was not sufficient to provide PRC exporters of heat-treated 5050-grade extrusions

other than Zhongwang with “reasonable notice.” See Transcom Inc. v. United States (“Transcom

IV”), 294 F.3d 1371, 1380 (Fed. Cir. 2002). An initiation notice must “certainly provide[] notice

that the exporters’ interests might be affected.” Id. at 1379 (citing Transcom I, 182 F.3d at 884)

(emphasis added). The Initiation Notice in this case stated that the inquiry would “cover[] extruded

aluminum products that meet the chemical specifications for 5050-grade aluminum alloy, which

are heat-treated, and exported by Zhongwang. The Department intends to consider whether the

inquiry should apply to all imports of extruded aluminum products . . . regardless of producer,

exporter, or importer, from the PRC.” 81 Fed. Reg. at 15,042 (emphasis added).

       The Government asserts that this language was sufficient to provide notice and cites to

Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369 (Fed. Cir. 2003), Transcom IV,

and Target II for support. However, the indication of the possibility of an administrative action

applying is not sufficient unless it states clear and certain circumstances that trigger the action,

Huaiyin, 322 F.3d at 1376–77, which the notice language did not provide. In addition, Huaiyin,

Transcom IV, and Target II are distinguishable, and the differences between the circumstances in
Consol. Court No. 17-00216                                                                   Page 19


those cases and the instant case demonstrate why notice here was inadequate. In Huaiyin, the

initiation notice stated that all exporters would be covered if a certain condition was met, whereas

here Commerce only stated that it “intended to consider” whether to extend the inquiry to products

other than Zhongwang’s. Huaiyin, 322 F.3d at 1376–77 (holding that the following constituted

sufficient notice to all PRC exporters: “[i]f one of the above named companies does not qualify

for a separate rate, all other exporters of freshwater crawfish tail meat from the People’s Republic

of China who have not qualified for a separate rate are deemed to be covered”). Similarly, in

Transcom IV, the court held that the language provided sufficient notice because “it was clear that

all exporters of tapered roller bearings from China were subject, in the first instance, to the

administrative review.” 294 F.3d at 1379. Finally, in Target II, plaintiffs argued that their reliance

on previous scope rulings, which had determined their merchandise was not within the scope of

the orders, should rebut the notice provided by the initiation of the anticircumvention inquiry.

Target II, 626 F. Supp. 2d at 1293–94. The court rejected that argument. Id. In that case, unlike

here, there was no assertion that language used in the initiation notice was unclear as to whether

the plaintiff’s products were under review. Id.

       Here, the language “intends to consider whether” does not certainly provide Plaintiffs

notice that they are subject to the inquiry. Initiation Notice, 81 Fed. Reg. at 15,042. The Initiation

Notice does not provide any sort of set circumstances under which Commerce would determine

all exporters were subject to the inquiry’s findings. Id. In fact, the language “intends to consider

whether the inquiry should apply” plainly indicates that Commerce had not yet determined the

inquiry applied to all PRC exporters or the circumstances under which it would. Id. In contrast,

the Initiation Notice provides clear notice that the inquiry “covers extruded aluminum products . .

. exported by Zhongwang.” Id. If Commerce had wanted to conduct an inquiry into all PRC
Consol. Court No. 17-00216                                                                  Page 20


exporters, it should have stated this fact in similarly clear language. Additionally, Commerce only

sent Zhongwang a questionnaire, which suggests that Commerce only viewed the inquiry as

covering Zhongwang at that time. Therefore, liquidation should have been suspended from the

date of the Preliminary Determination when Plaintiffs first received notice that their products were

subject to the anticircumvention inquiry.

                                         CONCLUSION

       In conclusion, the court sustains Commerce’s determination that it had the authority to

conduct a later-developed product anticircumvention inquiry into the heat-treated 5050-grade alloy

extrusions. The court also concludes that Commerce’s determination that heat-treated 5050-grade

extrusions are later-developed products is supported by substantial evidence and that Commerce

did not abuse its discretion by refusing to accept Regal’s untimely NFI submission. However, the

court finds that Commerce’s decision to suspend liquidation retroactive to the date of the Initiation

Notice was not in accordance with law because the language in the Initiation Notice did not provide

adequate notice. The court remands to Commerce to reformulate its liquidation instructions

consistent with this opinion and directs that such action be taken within 30 days of the publication

of this opinion.

   SO ORDERED.

                                                              /s/ Gary S. Katzmann
                                                              Gary S. Katzmann, Judge


 Dated: -XQH
        New York, New York
