                                         Slip Op. 15 - 67

     UNITED STATES COURT OF INTERNATIONAL TRADE

                                            :
MERIDIAN PRODUCTS, LLC,                     :
                                            :
                           Plaintiff,       :
                                            :
                      v.                    :        Before: R. Kenton Musgrave, Senior Judge
                                            :        Court No. 13-00018
UNITED STATES,                              :
                                            :
                           Defendant.       :
                                            :
                                            :

                                    OPINION AND ORDER

[Granting plaintiff’s motion for reconsideration, vacating judgment, and remanding to Commerce
a third time.]
                                                                            Dated: June 23, 2015

        Daniel J. Cannistra and Richard P. Massony, Crowell & Moring LLP, of Washington DC,
for the plaintiff.

        Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington DC, for the defendant. With her on the brief were Benjamin
C. Mizer, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades,
Jr., Assistant Director. Of counsel on the brief was Jessica M. Link, Attorney, Office of the Chief
Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington
DC.

               Musgrave, Senior Judge: Pursuant to USCIT Rules 46 and 59(b), the plaintiff

Meridian Products LLC (“Meridian”), a U.S. importer, moves for reconsideration of the court’s

decision in Meridian Products, LLC v. United States, 38 CIT ___, 37 F. Supp. 3d 1342 (2014)

(“Meridian III”). See Pl’s Mot. for Reconsideration of the Court’s Order in Slip Opinion 14-158,

PDoc 50 (Jan. 28, 2015) (“Pl’s Mot.”). Familiarity with prior proceedings and Meridian III, which

sustained the Final Results of Redetermination Pursuant to Court Remand, Meridian Products, LLC
Court No. 13-00018                                                                               Page 2


v. United States, Court No. 13-0018, PDoc 29 (June 17, 2014) (“Second Remand”), is presumed.

See Meridian III; see also Meridian Products, LLC v. United States, 38 CIT ___, 971 F. Supp. 2d

1259 (2014) (“Meridian II”); Meridian Products, LLC v. United States, 37 CIT ___, Slip Op. 13-75

(June 17, 2013) (“Meridian I”).

                Conducted by the International Trade Administration of the U.S. Department of

Commerce (“Commerce”), the matter concerns a scope ruling under the antidumping and

countervailing duty orders (“Orders”) on aluminum extrusions from the People’s Republic of China

(“PRC”),1 on the plaintiff’s imported refrigerator/freezer trim kits (“Trim Kits”) from the PRC. The

plaintiff’s precise motion asks for reconsideration of the exhaustion question that decided Meridian

III, arguing that it “had no opportunity” to raise before the agency the issue here, that exhaustion of

administrative remedies was a useless formality, and that the issue is “a pure question of law” not

requiring further factual development. Pl’s Mot. at 6-11. The defendant United States asks the court

to uphold Meridian III, countering that the plaintiff fails to identify any factual or legal error in the

prior decision on the exhaustion question. See Def’s Resp. to Pl’s Mot. for Reconsideration, PDoc51

(Mar. 4, 2015) (“Def’s Resp.”).

                After considering the plaintiff’s motion, the court reconsiders its prior decision,

vacates judgment, and remands the case back to Commerce again for application of the proper

definition of the “finished goods kit” exclusion, in compliance with the language of those Orders,

and for redetermination of whether the Trim Kits fall within the scope of those Orders.



        1
         See Aluminum Extrusions from the People’s Republic of China: Antidumping Duty Order,
76 Fed. Reg. 30650 (May 26, 2011) & Aluminum Extrusions from the People’s Republic of China:
Countervailing Duty Order, 76 Fed. Reg. 30653 (May 26, 2011) (collectively, “Orders”).
Court No. 13-00018                                                                             Page 3


                                           I. Background

                Brief background is here outlined for ease of understanding. After reviewing the

findings of Commerce’s First Remand,2 the court remanded to Commerce a second time, directing

it to “proceed from a clean slate on the question of whether the Trim Kits fall within the scope of the

Orders, fully taking into account the prior relevant scope rulings.” See Meridian II, supra, 971 F.

Supp. 2d at 1271.

                Commerce’s draft remand, issued Wednesday May 14, 2014, found that an “exception

to the ‘finished goods kit’ exclusion” exists, to wit that “an imported product will not be considered

a ‘finished goods kit’ . . . merely by including fasteners such as screws, bolts, etc. in the packaging

with an aluminum extrusions product”, that a product may not consist entirely of aluminum

extrusions and be excluded as a “finished goods kit”, and that the plaintiff’s Trim Kits, which consist

entirely of subject aluminum extrusions, fasteners, and “extraneous” materials, do not satisfy the

“finished goods kit” exclusion to the Orders.3 It also applied the analysis in the Drapery Rail Kits

Remand and the Solar Panel Mounting Systems Ruling to the Trim Kits,4 and continued to find that


       2
         Final Results of the Redetermination Pursuant to Court Remand, Meridian Products, LLC
v. United States, Ct. No. 13-00018, Slip Op. 13-75, PDoc17 (Aug. 15, 2013) (“First Remand”).
       3
         See Draft Results of Redetermination Pursuant to Court Remand, Meridian Products, LLC
v. United States, Ct. No. 13-00018, PDoc 40-1, Slip Op. 14-32 (“Draft Remand”) at 12-14 (May 14,
2014), referencing Memorandum to Christian Marsh, Deputy Assistant Secretary for Antidumping
and Countervailing Duty Operations, “Final Scope Ruling on J.A. Hancock, Inc.’s Geodesic
Structures” (July 17, 2012) (“Geodesic Domes Scope Ruling”) at 7 and Letter from Daniel Cannistra,
Crowell & Moring LLP, to the Secretary of Commerce, Antidumping and Countervailing Duty
Orders on Aluminum Extrusions from the People’s Republic of China: Request for Scope Ruling
for Refrigerator/Freezer Trim Kits (Nov. 13, 2012) (“Scope Ruling Request”) at 5-2, and Orders.
       4
           See Final Results of Redetermination Pursuant to Court Remand, Rowley Co. v. United
                                                                                 (continued...)
Court No. 13-00018                                                                          Page 4


the kits were not analogous to the goods in those rulings and were within the scope of the Orders.

Draft Remand at 14-19. Commerce then gave interested parties a mere five days to comment on the

Draft Remand. See id. at 19.

               Meridian’s comments on the Draft Remand addressed Commerce’s analysis of the

applicability of the Drapery Rail Kits Remand and Solar Panel Mounting Systems Ruling to the Trim

Kits, and noted that its comments were abbreviated in light of the limited time Commerce provided.

Meridian did not, however, comment on the portion of Commerce’s analysis in which Commerce

determined that the “finished goods kit” exclusion language, see infra, meant that Meridian’s Trim

Kits, which Commerce found consisted entirely of aluminum extrusions, fasteners and “extraneous”

materials, did not qualify for the exclusion. See generally Meridian’s Cmts. on the Draft Remand,

PDoc 40-2 (May 19, 2014). In the Second Remand, Commerce continued to find that “kits [that]

consist only of aluminum extrusions, fasteners, and extraneous materials do not meet the exclusion

criteria for ‘finished goods kits’” and that Meridian’s Trim Kits do not qualify as “finished goods

kits”, “because they consist entirely of aluminum extrusions, fasteners and extraneous materials”,

further that in its comments on remand Meridian did not challenge or dispute this finding. Second

Remand at 12-14 and 23-25. Meridian previously sought to challenge this part of Commerce’s

analysis before the court. Meridian’s Motion for Remand, PDoc 35 (July 15, 2014), ECF No. 35.

However, the court sustained the Second Remand results, finding that the plaintiff had failed to



       4
          (...continued)
States, Ct. No. 12-00055 (Feb. 28, 2013) (“Drapery Rail Kits Remand”); see also Memorandum to
Christian Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations,
“Final Scope Ruling on Clenergy (Xiamen) Technology’s Solar Panel Mounting Systems” (Oct. 31,
2012) (“Solar Panel Mounting Systems Ruling”).
Court No. 13-00018                                                                               Page 5


exhaust its administrative remedies by not raising or incorporating by reference those arguments

before Commerce. See Meridian III, supra, 37 F. Supp. 3d at 1342-54.

                                 A. Request for Reconsideration:
                            “Pure Issue of Law” Exception to Exhaustion

                 “The major grounds justifying a grant of a motion to reconsider a judgment are an

intervening change in the controlling law, the availability of new evidence, the need to correct a clear

factual or legal error, or the need to prevent manifest injustice.” Ford Motor Co. v. United States,

30 CIT 1587, 1588 (2006) (internal citation omitted).5 Through its arguments, Meridian asks for

relief from Meridian III, contending that three of these exceptions apply.

                While “[t]he exhaustion doctrine requires a party to present its claims to the relevant

administrative agency for the agency’s consideration before raising these claims to the Court”,

Shangdong Huarong Machinery Co., Ltd. v. United States, 30 CIT 1269, 1305, 435 F. Supp. 2d

1261, 1292 (2006) (internal citations omitted), and the court tends to take a strict stance on

exhaustion, the requirement that a party exhaust its administrative remedies has been excused in

trade cases “where exhaustion would be ‘a useless formality,’ intervening legal authority ‘might have



        5
          “[A] motion for reconsideration serves as ‘a mechanism to correct a significant flaw in the
original judgment’ by directing the Court to review material points of law or fact previously
overlooked.” RHI Refractories Liaoning Co., Ltd. v. United States, 35 CIT ___, ___, 752 F. Supp.
2d 1377, 1380 (2011) (“RHI Refractories”), quoting United States v. UPS Customshouse Brokerage,
Inc., 34 CIT 745, 748, 714 F. Supp. 2d 1296, 1301 (2010). Although a court may exercise its
“discretion to rectify a significant flaw in the conduct of the original proceeding, . . . a court should
not disturb its prior decision unless it is manifestly erroneous.” See Marvin Furniture (Shanghai)
Co. Ltd. v. United States, 37 CIT ___, ___, 899 F. Supp. 2d 1352, 1353 (2013) (internal citations and
quotations omitted). The court further “will not grant such a motion merely to give a losing party
another chance to re-litigate the case or present arguments it previously raised.” Totes-Isotoner
Corp. v. United States, 32 CIT 1172, 1173, 580 F. Supp. 2d 1371, 1374 (2008) (internal citation and
quotations omitted).
Court No. 13-00018                                                                            Page 6


materially affected the agency’s actions,’ the issue involves ‘a pure question of law not requiring

further factual development,’ where ‘clearly applicable precedent’ should have bound the agency,

or where the party ‘had no opportunity’ to raise the issue before the agency.” See SeAH Steel Corp.

v. United States, 35 CIT ___, ___, 764 F. Supp. 2d 1322, 1325-26 (2011), referencing Jiaxing

Brother Fastener Co., Ltd. v. United States, 34 CIT 1455, 1466, 751 F. Supp. 2d 1345, 1355-56

(2010) (internal citations omitted).

               Meridian claims, fundamentally, that it should be excused from exhausting its

administrative remedies because (1) it “had no opportunity” to raise the issue before the agency, (2)

re-iterating points it had already made to Commerce would have been a useless formality in

“Commerce’s informal redetermination procedures”, and (3) the issue was “a pure question of law’.

See Pl’s Mot. at 2-11. In its response, the defendant maintains that Meridian not only failed to

exhaust administrative remedy concerning Commerce’s “aluminum content” analysis for the

“finished goods kit” exclusion but also effectively failed to exhaust its arguments that those

exceptions to exhaustion apply. The defendant avers that instead of seeking leave from the court to

respond to Commerce’s exhaustion argument, which was initially raised in Commerce’s response

to the plaintiff’s comments on remand, Meridian has here first responded to the arguments after

judgment was entered, and that as a result the court should dismiss Meridian’s motion for

reconsideration.6




       6
          See Def’s Resp. at 7, referencing, e.g., Caldwell v. United States, 391 F.3d 1226, 1235
(Fed. Cir. 2004) and Defendant’s Resp. to Cmts. Regarding the Second Remand Redetermination,
PDoc 38 at 13-18 (Aug. 8, 2014) (“Def’s Resp. to Cmts.”).
Court No. 13-00018                                                                              Page 7


                “[P]arties cannot use a motion for reconsideration to raise new legal arguments that

could have been raised before a judgment was issued.” Bank of Ann Arbor v. Everest Nat. Ins. Co.,

563 F. App’x 473, 476 (6th Cir. 2014), referencing Roger Miller Music, Inc. v. Sony/ATV Publ'g,

477 F.3d 383, 395 (6th Cir. 2007). However, section 2637(d) of Title 28, United States Code,

provides that “the Court of International Trade shall, where appropriate, require the exhaustion of

administrative remedies [pursuant to Rule 59]” (court’s italics), and granting a motion for

reconsideration, likewise, rests within the discretion of the court. See Agro Dutch Indus. Ltd. v.

United States, 508 F.3d 1024, 1029 (Fed. Cir. 2007) (“Agro Dutch”), quoting Corus Staal BV v.

United States, 502 F.3d 1370, 1381 (Fed. Cir. 2007).

                In this matter, the need to prevent manifest injustice favors ruling for the plaintiff.

The fundamental question here, of whether a good consisting entirely of aluminum extrusions,

fasteners, and extraneous materials does not qualify for the “finished goods kit” exclusion, depends

entirely upon the proper reading of the scope language, which is a question of law. Although

Commerce is entitled to “substantial deference with regard to its interpretation of its own

antidumping duty orders,” King Supply Co., LLC v. United States, 674 F.3d 1343, 1348 (Fed. Cir.

2012) (“King Supply”) (citation omitted), Commerce may not “‘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) (citation

omitted). Parties are generally required to exhaust administrative remedies to aid Commerce in

interpretation, but just as determining the proper reading of a statute presents a “pure” legal question

that can be addressed despite a party’s failure to raise such an argument in the proceedings before
Court No. 13-00018                                                                              Page 8


Commerce,7 the language of the scope itself can present a “pure” question of law to the extent the

language is not susceptible to interpretation. See 19 C.F.R. §351.225(c)(1); see, e.g., Duferco Steel,

Inc. v. United States, 296 F.3d 1087, 1089 (Fed. Cir. 2002) (“Duferco”) (“[s]cope orders may be

interpreted as including subject merchandise only if they contain language that specifically includes

the subject merchandise or may be reasonably interpreted to include it”). Because the scope

language here speaks for itself, it is alone sufficient to resolve the exhaustion issue (see infra) as a

“pure” question of law; therefore that exception to exhaustion (that the plaintiff has now directed the

court to review) is applicable here.8 Accordingly, Meridian’s arguments on the “finished goods kit”

exclusion in the scope language, and the merits of Meridian’s claim, can and must be addressed

despite its failure to forcefully raise the arguments in the proceedings before Commerce.9


        7
           See Agro Dutch, supra, 508 F.3d at 1029 (“the proper interpretation of [19 U.S.C.]
§1675(a)(4) presents a ‘pure question of law’ that can be addressed on appeal despite [a party’s]
failure to raise such an argument in the proceedings before Commerce”); compare id. with
Consolidated Bearings v. United States, 348 F.3d 997, 1003 (Fed. Cir. 2003) (“Consolidated
Bearings”) (where additional development of a factual record was required to adequately address the
plaintiff’s claims, and accordingly it was not appropriate to apply the “pure legal question”
exception).
        8
         See Consolidated Bearings, 348 F.3d at 1003 (ibid); see also Hormel v. Helvering, 312
U.S. 552, 558 (1941) (exhaustion is not required “where the obvious result would be a plain
miscarriage of justice”); Pakfood Pub. Co. v. United States, 34 CIT 1122, 1144-45, 724 F. Supp. 2d
1327, 1350 (2010) (exhaustion is not required “where the benefits of exhaustion are inapplicable or
outweighed by other concerns”) (internal citations omitted).
        9
         See RHI Refractories, supra, 35 CIT at ___, 752 F. Supp. 2d at 1380; see also NSK Corp.
v. United States, 32 CIT 1497, 1501 (2008) (“a clear legal error will not require a court to grant a
motion for reconsideration where that error does not affect the result reached in the first instance”),
quoting Ford Motor Co. v. United States, 30 CIT 1587, 1588 (2006). Contrary to plaintiff’s
assertions, the court did not decide the substantive issue in the first two determinations. Cf. Pl’s
Mot. at 10-11 with Meridian I at 1-6 (remanding for consideration of the finished goods scope
exclusion under the Auto Parts Remand, Drapery Rail Kits Remand, and Side Mount Valve Controls
                                                                                         (continued...)
Court No. 13-00018                                                                             Page 9


                               B. Commerce’s Interpretation of the
                           “Finished Goods Kit” Exclusion to the Orders

               When determining the scope of an antidumping and/or countervailing duty order,

Commerce applies a three-step approach established by the appellate court in Duerfco.10 The first

step of this approach is to determine if the governing language is ambiguous. If the language is

ambiguous, an analysis of the 19 C.F.R. §351.225 subsections (k)(1) and (k)(2) factors is required.11

If it is not ambiguous, “the plain meaning of the language governs”, ArcelorMittal, supra, 694 F.3d




       9
          (...continued)
Scope Ruling, which were unaddressed in the underlying scope ruling); see also Meridian II, supra,
971 F.Supp. 2d at 1268-71 (remanding for a further explanation of why the Trim Kits “are not
intended to ‘display’ an appliance or ‘work with removable or replaceable components’”). As
discussed, supra, the court need not address at this time the plaintiff’s other arguments on
exhaustion, as the “pure question of law” ground is sufficient to exempt that requirement. See Pl’s
Mot. 2-11; see also USCIT Rule 46. Nevertheless, the court notes that Meridian III directed
Commerce to “proceed from a clean slate on the question of whether the Trim Kits fall within the
scope of the Orders, fully taking into account the prior relevant scope rulings”, Meridian III, supra
37 F. Supp. 3d at 1271, that the plaintiff was invited to comment on the Draft Remand in which
Commerce included an analysis evaluating if a good consisting entirely of aluminum extrusions,
fasteners, and “extraneous” materials could qualify for the “finished goods kit” exclusion, and
admonishes the plaintiff that, generally speaking, “[i]n litigation contesting antidumping
determinations, the exhaustion requirement applies to a situation . . . in which the Department invited
a party to submit comments on draft remand results.” Carpenter Tech. Corp. v. United States, 35
CIT ___, ___, 774 F. Supp. 2d 1343, 1349 (2011) (internal citation omitted).
       10
            A.L. Patterson, Inc. v. U.S., 36 CIT ___ , Court No. 11-00192, Slip. Op. 12-103 (2012)
at 8, referencing, ArcelorMittal Stainless Belgium N.V. v. United States, 35 CIT___, Court No. 08-
00434, Slip. Op. 11-82 (2011) (“ArcelorMittal”) at 6 (citing Duferco, supra, 296 F.3d at 1096-97
and Tak Fat Trading Co. v. United States, 396 F.3d 1378, 1382 (Fed. Cir. 2005)).
       11
          If upon examination Commerce finds the scope language ambiguous, it evaluates the
language pursuant to the subsection (k)(1) considerations of 19 C.F.R. §351.225. If that analysis is
not dispositive, then Commerce further analyzes the product under subsection (k)(2) of that
regulation. See 19 C.F.R. §351.225(k)(1)&(2); see also Laminated Woven Sacks Comm. v. United
States, 34 CIT ___, ___, 716 F. Supp. 2d 1316, 1321-22 (2010) (internal citations omitted).
Court No. 13-00018                                                                              Page 10


82, 87 (Fed. Cir. 2012), and “[t]here is nothing more to interpret”. Allegheny Bradford Corp. v.

United States, 28 CIT 830, 845, 342 F. Supp. 2d 1172, 1185 (2004) (“Allegheny Bradford”).12

               The relevant scope language governing the matter at bar is as follows:

       Subject aluminum extrusions may be described at the time of importation as parts
       for final finished products that are assembled after importation, including, but not
       limited to, window frames, door frames, solar panels, curtain walls or furniture.
       Such parts that otherwise meet the definition of aluminum extrusions are included
       in the scope. The scope includes the aluminum extrusion components that are
       attached (e.g. by welding or fasteners) to form subassemblies, i.e., partially
       assembled merchandised unless imported as part of the finished goods ‘kit’ defined
       further below. The scope does not include the non-aluminum extrusion components
       of subassemblies or subject kits.

       Subject extrusions may be identified with reference to their end use, such as fence
       posts, electrical conduits, door thresholds, carpet trim, or heat sinks . . . . Such goods
       are subject merchandise if they otherwise meet the scope definition, regardless of
       whether they are ready for use at the time of importation.

76 Fed. Reg. at 30650-51 and 30654 (court’s italics). The scope language provides for two

exclusions:

       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. 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


       12
          See Duferco, supra, 296 F.3d at 1097 (stating that the scope language of the order is “the
cornerstone” of a scope analysis); see also Mid Continent Nail Corp. v. United States, 725 F.3d
1295, 1302-04 (Fed. Cir. 2013) (internal citations omitted) (“Mid Continent”) (stating that the scope
language of the order is “the predicate for the interpretive process” by which Commerce must first
examine in any scope determination to decide whether merchandise falls within the scope of an
antidumping duty order); see also Walgreen Co. of Deerfield, IL v. United States, 620 F.3d 1350,
1357 (Fed. Cir. 2010) (“Walgreen”) (“it is the language of Commerce’s final order that defines the
scope of the order albeit ‘with the aid of the antidumping petition, the factual findings and legal
conclusions adduced from the administrative investigations, and the preliminary order’”) (quoting
Duferco at id., quoting Smith Corona Corp. v. United States, 915 F.2d 683, 685 (Fed. Cir. 1990)).
Court No. 13-00018                                                                                  Page 11


         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 is” into a finished
         product.

Id. (court’s italics). The scope language also clarifies the “finished goods kit” exclusion stating,

         An imported product will not be considered a “finished goods kit” and therefore
         excluded from the scope of the [Orders] merely by including fasteners such as
         screws, bolts, etc. in the packaging with an aluminum extrusion product.

Id. (court’s italics and bracketing).

                  As mentioned, although Commerce “enjoys substantial freedom to interpret and

clarify its . . . orders” by way of its scope rulings,13 and its interpretations are entitled to “significant

deference” if reasonable and supported by substantial evidence, antidumping and countervailing duty

orders “may be interpreted as including subject merchandise only if they contain language that

specifically includes the subject merchandise or may be reasonably interpreted to include it.”

Duferco, supra, 296 F.3d at 1089. As explained in Allegheny Bradford, Commerce must only meet

         a low threshold to show that it justifiably found an ambiguity in scope language . . .
         but it is not justifiable to identify an ambiguity where none exists. . . . Commerce
         cannot make a scope determination that conflicts with an order’s terms, nor can it
         interpret an order in a way that changes the order's scope.

Allegheny Bradford, supra, 28 CIT at 843, 342 F. Supp. 2d at 1184, referencing Novosteel SA v.

United States, 284 F.3d 1261, 1272 (Fed. Cir. 2002) and Duferco, supra, 296 F.3d at 1087, 1094-95.

                  In the Second Remand, Commerce found that the brackets, screws, and hinge covers

in Meridian’s Trim Kits were “fasteners”, that the wrench and installation kit were “extraneous

materials”, and that these parts did not qualify the Trim Kits (the rest of which were made up of


         13
              Ericsson GE Mobile Communications, Inc. v. United States, 60 F.3d 778, 782 (Fed. Cir.
1995).
Court No. 13-00018                                                                          Page 12


unassembled aluminum extrusions, i.e., “finished parts”)14, as a “finished goods kit” because while

the Trim Kits “might otherwise meet the definition”, under the scope language “kits which consist

only of aluminum extrusions, fasteners and extraneous materials do not meet the exclusion criteria

for ‘finished goods kits’”. Second Remand at 13-14, 23-24, referencing Geodesic Domes Scope

Ruling at 6-7. To support “interpreting” the exclusionary language, Commerce relied on the

“clarification” in the scope language of the exclusion that provides as follows: “[a]n 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” (court’s italics). See id. at 12-14, 23-25; see also Orders.

                Context renders unreasonable Commerce’s reading of the exclusionary language of

the scope, and its application of the scope language to the Trim Kits is in conflict with the Orders’

terms. The reason for that holding is as follows. The specific governing language15 of the Orders

unambiguously lists the requirements a kit must meet in order to be excluded from the scope as a

“finished goods kit”. The kit must be (1) an unassembled combination of parts that (2) includes at



       14
           See Def’s Resp. to Cmts. at 6-7; see also Second Remand at 5 (“Trim kits are sold as a
package of finished parts which, when assembled, will make up a customized frame around a single
freezer unit or a single refrigerator unit. Each trim kit consists of extruded aluminum forms, made
from aluminum alloy. The trim kits also include a customer installation kit, hexagonal tool,
fasteners, and a plastic hinge cover, which is not assembled into the trim.”) and at 7.
       15
          Legacy Classic Furniture, Inc. v. United States, 36 CIT ___,___, 867 F. Supp. 2d 1321,
1329-30 (2012) (noting that specific exclusions are intentionally carved out of general scope
inclusions with the purpose of narrowing the expanse of the general scope, and these specific
exclusions “should trump the general”), referencing Wheatland Tube v. United States, 161 F.3d
1365, 1371 (Fed. Cir. 1998) (noting that “to ‘allow Commerce to assess antidumping duties on
products intentionally omitted from the ITC’s injury investigation’ would frustrate the purpose of
the antidumping laws.”) (citing 19 U.S.C. §1673).
Court No. 13-00018                                                                            Page 13


the time of importation all of the necessary parts to fully assemble a final finished good, with no

further finishing or fabrication (such as cutting or punching), and (3) be capable of assembly “as is”

into a finished product. See Orders. The inclusion of “fasteners” or “extraneous materials” is not

determinative when qualifying a kit consisting of multiple parts which otherwise meets the

exclusionary requirements, as a “finished goods kit”. Likewise, there is nothing in the language that

indicates that the parts in an otherwise qualifying kit cannot consist entirely of aluminum extrusions.

For example, an imported disassembled model Eiffel Tower kit made up entirely of aluminum

extrusions with snap-fit joints, which when fully assembled forms that iconic shape, does not need

“fasteners” in the sense contemplated by the “finished goods kit” exclusion “clarification”, and

would apparently qualify for the “finished goods kit” exclusion if it otherwise met the scope-

exclusion requirements. Alternatively, if the Eiffel Tower kit did require fasteners to connect the

entirely aluminum extrusion parts, but otherwise met the scope-exclusion criteria, it would still

apparently qualify for the exclusion. In other words, the exclusionary language does not bar an

unassembled “combination of parts” consisting solely of aluminum extrusions, or aluminum

extrusions, “fasteners”, and “extraneous materials” from qualifying for the exclusion if the

combination includes all of the parts necessary for forming a complete finished good.

                This reasoning is supported by the scope language itself, in particular at the point

where the exclusionary language defining a “finished goods kit” (which requires that “all of the

necessary parts to fully assemble a final finished good” be present at importation) is read in

conjunction with the inclusionary scope language (which states that “[s]ubject aluminum extrusions

may be described at the time of importation as parts for final finished products that are assembled
Court No. 13-00018                                                                                Page 14


after importation”). By this language, it is clear that in order to qualify as a “finished goods kit”,

a kit must contain every part required to assemble the final finished good, and it logically follows

that if a kit is imported with all of the parts necessary to fully assemble the kit into its final finished

form, then obviously (and necessarily) some of those “parts” may be fasteners.

                  The “clarification” language does not support Commerce’s reading of the language,

but is instead simply an attempt to prevent the circumvention of the scope of the Orders by ensuring

that the “mere” inclusion of fasteners in a packaged aluminum extrusion product, that does not

otherwise meet the scope-exclusion requirements, will not qualify it as a “combination of parts” for

the “finished goods kit” exclusion. The record shows that Commerce unreasonably ignored the

scope definition of what constitutes a “finished goods kit” by expanding the “clarification” language

to exclude the Trim Kits, when that language plainly does not disqualify the plaintiffs’s Trim Kits

from the exclusion. Commerce accepted the plaintiff’s description of the product as consisting of

a package of multiple unassembled aluminum “finished parts” with fasteners, a hexagonal tool for

fitting said fasteners, a plastic hinge cover, and a booklet instructing how to assemble the parts into

a final finished customized frame,16 but unreasonably found that the presence of the “fasteners”, the

assembly tool, the plastic hinge cover, and the assembly instruction booklet were “extraneous” in

this kit and were, in and of themselves, sufficient to remove the plaintiff’s product from the

exclusion to the scope of the Orders.17 And although Commerce claims its exclusion of the Trim


        16
             Second Remand at 5, referencing Scope Ruling Request at 1-2.
        17
           Commerce uses the term “extraneous” to define the wrench and installation kit as parts
that “entered with the trim kits but that were not part of the final product” but it has effectively
applied that term to all non-aluminum parts of the kit, discounting their importance to the final
                                                                                      (continued...)
Court No. 13-00018                                                                              Page 15


Kits was “consistent with the scope of the Orders, which includes products such as window frames,

door frames and picture frames, and only excludes products that contain additional, non-aluminum

extrusion products (i.e., windows with glass, doors with glass or vinyl, picture frames with glass

pane and backing material)”,18 Commerce’s reading impermissibly imposes the requirements of the

“finished merchandise” exclusion -- which has no dependant bearing on the “finished goods kit”

exclusion -- into the requirements of the “finished goods kit” exclusion.19

                 Commerce’s reliance on the Geodesic Domes Scope Ruling to support its conclusion

is also misplaced. While the “petition, factual findings, legal conclusions and preliminary orders”


        17
            (...continued)
finished product as a whole, and their respective roles in the assembly thereof. See Second Remand
at 14; see also Def’s Resp. to Cmts. at 2 (noting that “Commerce determined that the brackets,
screws, and hinge covers in Meridian’s trim kits were akin to fasteners and, thus, did not qualify the
trim kits, i.e., an aluminum extrusion product, for the “finished goods kit” exclusion. In addition,
Commerce determined that the wrench and installation kit accompanying the trim kits were
extraneous materials that were not part of the final product, and thus also did not qualify the trim kits
for the “finished goods kit” exclusion.”).
        18
             Second Remand at 13-14, referencing Draft Remand at 13.
        19
            As the court in Meridian III (and Commerce itself) pointed out, the scope language lays
out two separate exclusions for finished goods, the “finished merchandise” and the “finished goods
kit” exclusion, each of which contain independent requirements that a good must meet to qualify.
See Meridian III, supra, 37 F. Supp.3d at 1346 fn.7 and 1353; see also Def’s Resp. to Cmts. at 12
fn. 7 (“Meridian’s comments refer to both exclusions as a single ‘finished goods exclusion.’ The
orders identify the finished goods kit exclusion and the finished merchandise exclusion as two
separate exclusions.”). Commerce also apparently relies on the interpretive canon expressio unius
est exclusio alterius for its argument. However, the plain language of the “finished goods kit”
exclusion clearly addresses what is required for a good to qualify: the listing of “window frames,
door frames and picture frames” as items of subject merchandise included in the Orders, and the
listing of “windows with glass, doors with glass or vinyl, picture frames with glass pane and backing
material” as excluded “finished merchandise”, does not imply that only goods that contain some non-
aluminum part may qualify for the “finished goods kit” exclusion. Application of the cannon was
not only unnecessary, it was applied incorrectly. Cf. Adirondack Med. Ctr. v. Sebelius, 740 F.3d
692, 697 (D.C. Cir. 2014) (finding the canon a “feeble helper in an administrative setting”).
Court No. 13-00018                                                                             Page 16


may aid in Commerce’s analysis, “they cannot substitute for the language of the order itself”,

Walgreen, supra, 620 F.3d at 1357, which in this instance is clear on its face. If “Commerce is

entitled to substantial deference with regard to its interpretations of its own antidumping duty

orders,” King Supply, supra, 674 F.3d at 1348 (citation omitted), that still presupposes language

susceptible to interpretation. Here, like the “irreconcilability of the Order’s beveling sentence with

the edging characteristics of [the] fittings” considered in Allegheny Bradford, supra, 28 CIT at 845,

342 F. Supp. 2d at 1185, “[t]here is nothing more to interpret” from the language of the Orders as

to their applicability to the completeness of the Trim Kits, and no need to evaluate the Geodesic

Domes Scope Ruling. Id. In any event, Commerce has simply grafted the same flawed reasoning

it employed in the Geodesic Domes Scope Ruling into the Second Remand result.20

                                           III. Conclusion

                While Commerce’s interpretation is to be sustained so long as it reasonably clarifies

the scope, the court here concludes that Commerce’s interpretation in the Second Remand has

impermissibly expanded the scope language by placing a restriction on the “finished goods kit”

exclusion that is not supported by the plain language of the scope of the Orders. See, e.g., Sandvik

Steel Co., supra, 164 F.3d at 600 (“the order’s meaning and scope are issues particularly within the

expertise of [Commerce]”). As a result, Commerce’s reliance on this interpretation to disqualify the


        20
            In the Geodesic Domes Scope Ruling, Commerce found that while a kit containing
unassembled parts in the form of aluminum extrusions, screws and assembly instructions “met the
initial requirements for inclusion into the “finished goods kit” exclusion” because it contained all
of the parts required to fully assemble a final finished good, an “exception to the ‘finished goods kit’
exclusion” disqualified the geodesic domes from the exclusion, i.e., “an imported product will not
be considered a ‘finished goods kit’ . . . merely by including fasteners such as screws, bolts, etc. in
the packaging with an aluminum extrusions product”. Second Remand at 13, referencing Draft
Remand at 12, citing Geodesic Domes Scope Ruling at 7 and the Orders.
Court No. 13-00018                                                                          Page 17


plaintiff’s Trim Kits, which “might otherwise meet the definition for a ‘finished goods kit’ pursuant

to the scope of the Orders”, is not in accordance with law and not supported by substantial evidence.

See Second Remand at 23-24. Based upon the foregoing, the prior judgment must be, and it hereby

is, vacated, and the case must be, and it hereby is, remanded to Commerce a third time, with

instructions to provide an interpretation of the “finished goods kit” exclusion to the Orders that

complies with the scope language and to evaluate the plaintiff’s Trim Kits under that interpretation.

               Results of redetermination shall be due August 24, 2015. Within ten (10) days of the

docketing of those results, the parties shall confer and submit a joint proposed scheduling order or

separate proposed scheduling orders governing further proceedings on this matter.

               It is so ordered.



                                              /s/ R. Kenton Musgrave
                                              R. Kenton Musgrave, Senior Judge

Dated: June 23, 2015
       New York, New York
