Judge Rejects U.S. Commerce Department’s Remand Redetermination in AD/CVD CaseNovember 29th, 2021 by Editor
Almost a year after the last significant change in the antidumping and countervailing duty (AD/CVD) case of Columbia Aluminum Products (Columbia) vs. U.S. Department of Commerce (Commerce), Judge Timothy C. Stanceu issued an opinion and order in response to the Commerce Department’s Remand Redetermination, filed in December of 2020, and the subsequent responses and comments submitted by both the plaintiff, Columbia Aluminum Products and Defendant-Intervenors: Aluminum Extrusions Fair Trade Committee and Endura Products, Inc.
In the Remand Redetermination, Commerce—the defendants in the case—“reasoned that goods falling within the subassemblies provision of the Orders cannot also be considered goods qualifying for the finished merchandise exclusion” and that as far as the Department is concerned, the two categories are mutually exclusive. Judge Stanceu upheld his previous decision, which remanded the determination to Commerce in the first place, stating that “The court need not decide whether this analysis is a correct interpretation of the scope language, for even if it is, the Department’s decision still must be remanded to Commerce because it relies upon an impermissible finding or inference.”
Specifically, Stanceu said, “Commerce impermissibly relied on certain other record evidence submitted by the petitioner and Endura”—a Defendant-Intervenor in the case. He further states that, “whether the court considers this language to be a finding or an inference does not matter: in either case, it is contradicted by the record evidence contained in the Scope Ruling Request and the supplement thereto,” and adds that the Commerce Department fails to provide record evidence “to support a finding or inference that Columbia’s imported door thresholds, in particular, are so designed and produced as to require cutting or machining prior to incorporation into a door frame or other structure.”
With no specific evidence presented to support a finding or inference to their cause, Judge Stanceu wrote that, “In the second remand proceeding, Commerce must make a factual determination to resolve this issue based on a consideration of the record evidence, viewed in the entirety.”
He continued to dismiss the Commerce Department’s arguments, including what he calls “attempts to justify its overly-narrow interpretation of the finished merchandise exclusion,” stating that “The finished goods kit exclusion applies only to goods imported in unassembled form, and the specific mention of this exclusion in the subassemblies provision logically parallels the description of subassemblies as ‘partially assembled merchandise’” and that “[t]he finished merchandise exclusion, in contrast, applies only to goods that are imported in fully assembled form. Each must be interpreted according to the requirements stated therein. That a good be fully assembled at the time of importation is a requirement of the finished merchandise exclusion.”
Wrapping up the opinion, Judge Stanceu wrote that the court “cannot sustain the Remand Redetermination” and “directs that Commerce, in a new decision, reconsider in the entirety the decision reached in the Remand Redetermination as to the finished merchandise exclusion and reach a new determination” that met criteria as he set forth in the order. That criteria includes addressing “the specific factual issue the court has identified and ensure that all of its findings are supported by substantial evidence on the record.”
Department of Commerce had 90 days from the September 14 filing to “submit a second redetermination upon remand (“Second Remand Redetermination”) and a draft of their response was prepared before the Thanksgiving holidays. Once that Second Remand Redetermination is entered into the docket, Columbia and the Defendant-Intervenors will have 30 days to submit comments to the court and the Commerce Department then will have 15 days to respond.