Commerce Ignored Relevant Sources to Support Its Scope Decision, Importer Argues on Remand

The Commerce Department failed to apply "a well-established legal framework" when it continued to find on remand that heat-treated T-series sheet imported by Valeo was within the scope of the antidumping and countervailing duty orders on common alloy aluminum sheet from China, Valeo said in its remand comments submitted July 20 (Valeo North America v. U.S., CIT # 21-00581).

Valeo asked the court to again remand the issue to Commerce, saying that the department unlawfully looked "beyond the express scope language" and relied on a "non-public, unpublished source unrepresentative of customary trade usage" in making its determination.

Commerce incorrectly claimed on remand that the plain language of the scope was ambiguous without pointing to the precise wording it found to be so, Valeo said. The plain language indicates that the products within scope are those "designated by the Aluminum Association,” which is not at all ambiguous, Valeo said.

The department also misrepresented the Aluminum Association specifications as a k(1) source rather than a definitional source that should have been valued higher than k(1) sources, Valeo said.

Commece then adopted a confidential submission, Alcha’s separate rate application, as a competing k(1) source, despite its ineligibility, which resulted in an unnecessary resort to k(2) sources. The adoption of Alcha's submission, which was "unrelated to the scope or to any party to the proceeding," was unlawful, Valeo said. Even if Alcha's submission was eligible for assessment, it would still be unsuitable because it lacks any discussion about a scope issue, it said.

Commerce implied that its granting of Alcha’s separate rate application reflected an interpretive scope determination but "there is no rational connection between scope and Alcha’s SRA that supports the implied determination related to scope," Valeo said.

In its June 20 remand results, Commerce said it found the k(1) factors to be insufficient, necessitating a k(2) analysis to support the finding that the T-series sheet is unambiguously covered by the scope (see 2306210072).