CIT Rejects Remand Results in AD/CVD Scope Case, Says Judicial Review Impossible

Remand redeterminations recently submitted by the Commerce Department in two related cases are not final agency decisions that can be sustained by the Court of International Trade, and doing so would circumvent the trade court’s judicial review process, CIT said in a pair of Aug. 10 decisions rejecting the remand results in a case involving a scope ruling on door thresholds.

Filed in response to the second CIT remands in cases involving two respective scope rulings that found the door thresholds from Columbia and Worldwide Door subject to antidumping and countervailing duties on aluminum extrusions from China, the remand redeterminations, filed under protest, promise only a future “revised scope ruling” if the trade court sustains. The redetermination “informs the court that if the court were to sustain the Second Remand Redetermination, Commerce would issue a new scope ruling accordingly,” CIT said in the two nearly identical opinions.

“Because it is not the actual scope ruling or determination Commerce plans to issue, it would not be self-effectuating should the court sustain it, and the agency decision that would follow if it were sustained would escape direct judicial review,” CIT said.

Commerce initially found the door thresholds subject to AD/CVD for a number of reasons, including that door thresholds are specifically mentioned in the scope and that they are subassemblies of larger doors and can’t qualify for the “finished merchandise” exemption from aluminum extrusions duties. While CIT had questioned Commerce’s reasoning in its prior decisions on the scope rulings, CIT said the second remand redetermination also misunderstands CIT’s qualms.

“The Second Remand Redetermination is flawed in presenting no reasoning for ruling that the door thresholds are outside the scope of the Orders other than its incorrect conclusion that the court ordered Commerce to do so,” CIT said. It misinterprets the court’s decision “in this respect as well as others.” For example, while Commerce said CIT found the door thresholds weren't subassemblies and qualified for the finished merchandise exclusion, the trade court made no such findings, instead instructing Commerce to do a more thorough factual analysis on whether the thresholds were ready for installation as imported or if they needed to be cut to size.

That lack of reasoning and errant reliance on misunderstandings of CIT’s directions renders “the Department’s proposed resolution of this litigation unsatisfactory,” the trade court said. “Not only would it deny the court the opportunity to review the agency’s actual decision on remand, it also would not allow the parties to comment on that decision before the court reviews it. Moreover, the court must rule on an agency decision, including one submitted in response to court order, by considering the decision according to the reasoning the agency puts forth,” CIT said.

“The proposed resolution Commerce has offered does not allow the court to perform its essential judicial review function, and the court, therefore, rejects it. The court directs Commerce to issue a third remand redetermination that, like the agency determination contested in this litigation, is a scope ruling or determination for the court’s review, and it must be in a form that would go into effect if sustained upon judicial review,” CIT said.

(Worldwide Door Components v. U.S., Slip Op. 22-91, CIT # 19-00012, dated 08/10/22, Judge Timothy Stanceu. Attorneys: John Foote of Kelley Drye for plaintiff Worldwide Door Components; Aimee Lee for defendant U.S. government; Robert DeFrancesco of Wiley Rein for defendant-intervenors Aluminum Extrusions Fair Trade Committee and Endura Products)

(Columbia Aluminum Products v. U.S., Slip Op. 22-92, CIT # 19-00013, dated 08/10/22, Judge Timothy Stanceu. Attorneys: Jeremy Dutra of Squire Patton for plaintiff Columbia Aluminum Products; Aimee Lee for defendant U.S. government; Robert DeFrancesco of Wiley Rein for defendant-intervenors Aluminum Extrusions Fair Trade Committee and Endura Products)