Whirlpool Corporation v. United States , 890 F.3d 1302 ( 2018 )

United States Court of Appeals
for the Federal Circuit
______________________
WHIRLPOOL CORPORATION,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant
ALUMINUM EXTRUSIONS FAIR TRADE
COMMITTEE,
Defendant-Appellant
______________________
2017-1117
______________________
Appeal from the United States Court of International
Trade in No. 1:14-cv-00199-TCS, Chief Judge Timothy C.
Stanceu.
______________________
Decided: May 23, 2018
______________________
DONALD HARRISON, Gibson, Dunn & Crutcher LLP,
Washington, DC, argued for plaintiff-appellee.
ROBERT E. DEFRANCESCO, III, Wiley Rein, LLP, Wash-
ington, DC, argued for defendant-appellant. Also repre-
sented by ALAN H. PRICE, TESSA V. CAPELOTO, DERICK
HOLT.
______________________
2 WHIRLPOOL CORPORATION v. UNITED STATES
Before PROST, Chief Judge, MOORE and REYNA,
Circuit Judges.
Opinion for the court filed by Chief Judge PROST.
Opinion concurring-in-part, dissenting-in-part filed by
Circuit Judge REYNA.
PROST, Chief Judge.
Aluminum Extrusions Fair Trade Committee
(“AEFTC”) appeals a decision from the U.S. Court of
International Trade (“the CIT”) affirming a scope ruling of
the U.S. Department of Commerce. The scope ruling held
that Whirlpool Corporation’s kitchen appliance door
handles with end caps (“assembled handles”) do not fall
within the scope of the antidumping and countervailing
duty orders on aluminum extrusions from the People’s
Republic of China (“the Orders”). For the reasons stated
below, we affirm-in-part, reverse-in-part, vacate-in-part,
and remand.
BACKGROUND
The instant appeal addresses whether particular
products fall within the scope of existing antidumping and
countervailing duty orders. We examine the Orders’ scope
and the procedural history before turning to the merits.
I
Commerce published the Orders in 2011. See Alumi-
num Extrusions from the People’s Republic of China:
Antidumping Duty Order, 76 Fed. Reg. 30,650 (Dep’t of
Commerce May 26, 2011); Aluminum Extrusions from the
People’s Republic of China: Countervailing Duty Order, 76
Fed. Reg. 30,653 (Dep’t of Commerce May 26, 2011). The
scope of the Orders describes the subject merchandise as
“aluminum extrusions” that “are shapes and forms,
produced by an extrusion process, made from” specified
aluminum alloys. Antidumping Duty Order, 76 Fed. Reg.
WHIRLPOOL CORPORATION v. UNITED STATES 3
at 30,650. 1 The subject extrusions “may be described at
the time of importation as parts for final finished products
that are assembled after importation.” Id. The scope also
“includes the aluminum extrusion components that are
attached (e.g., by welding or fasteners) to form subassem-
blies, i.e., partially assembled merchandise.” Id.
The Orders’ scope contains several exclusions. Merid-
ian, 851 F.3d at 1379. For example, the scope has a
finished merchandise exclusion, which “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.” Antidumping
Duty Order, 76 Fed. Reg. at 30,651. The scope also has a
finished goods kit exclusion, which
excludes finished goods containing aluminum ex-
trusions that are entered unassembled in a “fin-
ished goods kit.” A finished goods kit is
understood to mean a packaged combination of
parts that contains, at the time of importation, all
of the necessary parts to fully assemble a final fin-
ished good and requires no further finishing or
fabrication, such as cutting or punching, and is
assembled “as is” into a finished product.
Id. The next sentence of the Orders includes, however, an
exception to the finished goods kit exclusion. See Meridi-
an, 851 F.3d at 1385. The exception states that “[a]n
1 The Orders recite the same scope. See Meridian
Prod., LLC v. United States, 851 F.3d 1375, 1379 n.4 (Fed.
Cir. 2017). Compare Antidumping Duty Order, 76 Fed.
Reg. at 30,650–51, with Countervailing Duty Order, 76
Fed. Reg. at 30,653–54. We refer only to the scope in the
Antidumping Duty Order for ease of reference.
4 WHIRLPOOL CORPORATION v. UNITED STATES
imported product will not be considered a ‘finished goods
kit’ and therefore excluded from the scope of the investi-
gation merely by including fasteners such as screws,
bolts, etc. in the packaging with an aluminum extrusion
product.” Id.
II
On December 20, 2013, Whirlpool submitted a request
for a scope ruling that its kitchen appliance door handles
with end caps were not covered by the scope of the Orders.
Whirlpool’s December 2013 Scope Request was expressly
based on a claim that its assembled handles were subject
to the finished merchandise exclusion.
On August 4, 2014, Commerce issued its Scope Ruling
for Whirlpool’s assembled handles. 2 Commerce found
that “the handles at issue do not meet the exclusion
criteria for ‘finished merchandise’ and, therefore, are
inside the scope of the Orders.” J.A. 340. As a threshold
issue, Commerce rejected Whirlpool’s argument that the
fasteners exception language in the scope only applies in
the context of the finished goods kit exclusion and that it
should not apply in the finished merchandise exclusion.
J.A. 342. Commerce found “unconvincing the notion that
an unassembled product in kit-form that consists solely of
extruded aluminum, save for fasteners, would . . . fall
inside the scope while the identical product, entering the
2 This August 2014 Scope Ruling also addressed a
January 2014 Scope Request from Whirlpool. That re-
quest dealt with aluminum extruded appliance handles
that consisted of a single aluminum extrusion without end
caps or other components. The January 2014 Scope
Request is not relevant to the instant appeal, as Whirl-
pool did not appeal the CIT decision that these handles
were covered by the Orders.
WHIRLPOOL CORPORATION v. UNITED STATES 5
United States as an assembled good, would fall outside
the scope of the Orders.” J.A. 43.
Because Commerce determined that the fasteners ex-
ception also applies to the finished merchandise exclusion,
it concluded that “the mere inclusion of fasteners, in this
case the plastic end caps, does not result in the extruded
aluminum handles falling outside the scope of the Orders
as extruded finished merchandise.” J.A. 341. Citing the
dictionary definition of a washer, Commerce found that
“the end caps . . . are involved in attaching the handle to
the refrigerator door in a manner that allows the handle
to fit tightly to the refrigerator door and relieves friction
between the door and the handle,” and on that basis found
“that the plastic end caps are analogous to a washer.”
J.A. 340. Commerce, in a prior scope ruling, had consid-
ered washers to fall within the scope’s reference to fasten-
ers. Accordingly, Commerce found “that the handles at
issue are comprised entirely of extruded aluminum and
fasteners (i.e., plastic end caps).” J.A. 340.
Whirlpool appealed Commerce’s August 2014 Scope
Ruling to the CIT. After briefing and oral argument, the
CIT issued its February 2016 Remand Order (Whirlpool
I). The CIT remanded to Commerce for two reasons.
First, the CIT determined that the general scope language
of the Orders could not be reasonably interpreted to
include Whirlpool’s assembled handles at all. The CIT
noted that “Commerce did not rely on the ‘subassemblies’
provision in the general scope language,” which was
“understandable” based on evidence that “the assembled
handles are imported in a form in which they require no
further assembly or processing prior to the intended use.”
J.A. 45. Second, the CIT determined that, even if the
assembled handles were described by the general scope
language, Commerce erroneously determined that the
assembled handles do not qualify for the finished mer-
chandise exception because the fasteners exception does
not apply to the finished merchandise exclusion. The CIT
6 WHIRLPOOL CORPORATION v. UNITED STATES
also determined that Commerce employed flawed logic
and ignored record evidence in concluding that the plastic
end caps in the assembled handles are “washers” and
therefore “fasteners.”
With respect to the CIT’s second basis for its remand
order, it stated that Commerce’s “presum[ption] that the
exception for fasteners in the finished goods kit exclusion
applies to the finished merchandise exclusion as well . . .
is at odds with established principles of construction.”
J.A. 47–48. According to the CIT, if “Commerce . . . had
intended to sweep into the scope any assembled good
consisting solely of aluminum extrusion components and
fasteners, [it would have] so provide[d] in the scope lan-
guage. Instead, Commerce expressly confined its ‘fasten-
ers’ exception to the finished goods kit exclusion.” J.A. 48.
On remand, Commerce determined, “under respectful
protest,” that the assembled handles were “outside the
scope of the Orders because, consistent with the [CIT]’s
interpretation of the scope language, there is no general
scope language which covers such products.” J.A. 29.
Commerce declined to provide any further analysis with
respect to the finished merchandise exclusion, explaining
that “the issue of whether Whirlpool’s handles with end
caps are subject to the exclusion for finished merchandise
is rendered moot by the [CIT]’s findings and our resulting
determination, under protest, that there is no general
scope language which covers these products.” J.A. 35.
In its August 2016 Opinion (Whirlpool II), the CIT af-
firmed Commerce’s April 2016 Redetermination Decision.
This appeal followed. We have subject matter jurisdiction
pursuant to 28 U.S.C. § 1295(a)(5).
WHIRLPOOL CORPORATION v. UNITED STATES 7
DISCUSSION
I
“We apply the same standard of review as the CIT
when reviewing a Commerce scope ruling, though we give
due respect to the CIT’s informed opinion.” Meridian, 851
F.3d at 1380 (internal quotation marks and citations
omitted). “Under that standard, we uphold a Commerce
scope ruling that is supported ‘by substantial evidence on
the record’ and otherwise ‘in accordance with law.’” Id.
(quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). “Substantial
evidence is such relevant evidence as a reasonable mind
might accept as adequate to support a conclusion.” Eck-
strom Indus., Inc. v. United States, 254 F.3d 1068, 1071
(Fed. Cir. 2001) (internal quotation marks and citation
omitted).
There is no specific statutory provision governing the
interpretation of the scope of the Orders. Shenyang
Yuanda Aluminum Indus. Eng’g Co. v. United States, 776
F.3d 1351, 1354 (Fed. Cir. 2015). But Commerce has
filled this statutory gap with a regulation, 19 C.F.R.
§ 351.225(k), requiring Commerce to engage in a two-step
process when determining the scope of an order. Id.;
Meridian, 851 F.3d at 1381. First, under § 351.225(k)(1),
Commerce must consider the scope language contained in
the order, the descriptions contained in the petition, and
how the scope was defined in the investigation and in the
determinations issued by Commerce and the ITC. Yu-
anda, 776 F.3d at 1354. If Commerce concludes the
product is, or is not, included within the scope of the
order, Commerce issues a final scope ruling. Id. If a
§ 351.225(k)(1) analysis is not dispositive, however, then
Commerce proceeds to an analysis of the Diversified
8 WHIRLPOOL CORPORATION v. UNITED STATES
Products criteria under subsection (k)(2) of its regulation. 3
Id.
Commerce’s inquiry begins with the Orders’ scope to
determine whether it contains an ambiguity and, thus, is
susceptible to interpretation. Meridian, 851 F.3d at 1381.
The question of whether the unambiguous terms of a
scope control the inquiry, or whether some ambiguity
exists, is a question of law that we review de novo. Id. at
1382. If the scope is unambiguous, the plain meaning of
the Orders’ language governs. Id. at 1381. The question
of whether a product meets the unambiguous scope terms
then presents a question of fact reviewed for substantial
evidence. Id. at 1382.
Because the meaning and scope of the Orders are is-
sues particularly within Commerce’s expertise and special
competence, we grant Commerce substantial deference
with regard to its interpretation of its own Orders. Id. at
1381–82. While Commerce “enjoys substantial freedom to
interpret and clarify its antidumping duty orders . . . , it
may not change them.” Ericsson GE Mobile Commc’ns,
Inc. v. United States, 60 F.3d 778, 782 (Fed. Cir. 1995), as
corrected on reh’g (Sept. 1, 1995). Accordingly, a final
order may not be interpreted “in a way contrary to its
terms,” Smith Corona Corp. v. United States, 915 F.2d
683, 686 (Fed. Cir. 1990), nor in a way “so as to change
the scope of that order,” Eckstrom Indus., 254 F.3d at
1072.
II
This appeal hinges on the interpretation of the Or-
ders. Accordingly, we must determine whether Commerce
3 Here, Commerce found that its § 351.225(k)(1)
analysis was dispositive and that it was unnecessary to
consider the additional factors specified in § 351.225(k)(2).
J.A. 339.
WHIRLPOOL CORPORATION v. UNITED STATES 9
properly interpreted the relevant portions of the Orders
and, if so, whether Commerce’s findings as to whether the
product meets the scope terms are supported by substan-
tial evidence. We begin our discussion with the Orders’
general scope language followed by the express exclusions
from that general scope.
A
According to AEFTC, the CIT erred in its interpreta-
tion of the Orders’ general scope language because it
“ignores that the scope of the order was intended to cover
all aluminum extrusions produced with aluminum alloys
commencing with 1, 3, and 6 unless expressly excluded.”
Appellant Br. 27. AEFTC maintains that “the scope
expressly includes aluminum extrusions, whether further
fabricated or not, and even if incorporated into a subas-
sembly, as well as aluminum extrusions which are identi-
fied by reference to their end use (such as kitchen
appliance handles), as Commerce acknowledged in its
scope ruling.” Id. We agree.
In Whirlpool I, the CIT examined “whether the gen-
eral scope language reasonably may be interpreted to
include these handles even though the handles are as-
semblies containing an extrusion and various other parts
and even though they are imported in a fully-assembled
form, ready for use.” J.A. 43. The CIT determined that
“the term ‘extrusion’ is not defined in the general scope
language so as to include a good simply because an ex-
truded aluminum component is present within a good
consisting of an assembly.” J.A. 44. Accordingly, the CIT
concluded that the general scope language is not reasona-
bly interpreted to include the assembled handles because
“[t]he handles at issue are not themselves ‘extrusions’ but
rather are assemblies, each of which contains an extru-
sion, machined and surface-treated, as the principal
component.” J.A. 43. This conclusion is incorrect.
10 WHIRLPOOL CORPORATION v. UNITED STATES
Although the CIT properly recognized that “the gen-
eral scope language provides that [an aluminum extru-
sion] remains in the scope even though it has been
subjected to one of three specified types of post-extrusion
processes,” the CIT erred when it stated that assembly
processes were absent from the specified post-extrusion
processes. J.A. 44. The general scope language unambig-
uously includes aluminum extrusions that are part of an
assembly. The Orders explicitly include aluminum extru-
sions “that are assembled after importation” in addition to
“aluminum extrusion components that are attached (e.g.,
by welding or fasteners) to form subassemblies.” Anti-
dumping Duty Order, 76 Fed. Reg. at 30,650. Therefore,
the interpretation relied on by the CIT in Whirlpool I was
improper, and substantial evidence supports Commerce’s
finding in its August 2014 Scope Ruling that the general
scope language includes Whirlpool’s assembled handles.
B
We must next determine whether Commerce, in its
August 2014 Scope Ruling, applied the proper interpreta-
tion of the exclusions to the Orders and, if so, whether
substantial evidence supports its finding that the exclu-
sions do not apply.
First, with respect to the finished goods kit exclusion
we agree with the CIT that “[b]ecause Whirlpool’s assem-
bled door handles are not imported in disassembled form,
the finished goods kit exclusion is inapplicable.” J.A. 47.
This exclusion is unambiguous and so the plain meaning
of the language of the Orders governs. Meridian, 851
F.3d at 1381. The language of the Orders states that
“[t]he scope also excludes finished goods containing alu-
minum extrusions that are entered unassembled in a
‘finished goods kit.’” Antidumping Duty Order, 76 Fed.
Reg. at 30,651 (emphasis added). “A finished goods kit is
understood to mean a packaged combination of parts that
contains, at the time of importation, all of the necessary
WHIRLPOOL CORPORATION v. UNITED STATES 11
parts to fully assemble a final finished good and requires
no further finishing or fabrication.” Id. (emphasis added).
Whirlpool’s handles and end caps do not enter unassem-
bled as a packaged combination of parts. They enter
assembled. Accordingly, Whirlpool’s assembled handles
do not meet the unambiguous terms of the finished goods
kit exclusion.
Second, with respect to the finished merchandise ex-
clusion we also agree with the CIT. The Orders define
finished merchandise as “merchandise containing alumi-
num 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.” Antidumping Duty Order, 76 Fed. Reg. at
30,651. The next two sentences describe a different
exclusion to the Orders, which excludes finished goods
kits, as described above. Id. Following those sentences,
the Orders state “[a]n imported product will not be con-
sidered a ‘finished goods kit’ and therefore excluded from
the scope of the investigation merely by including fasten-
ers such as screws, bolts, etc. in the packaging with an
aluminum extrusion product.” Id.
Commerce, in its August 2014 Scope Ruling, rejected
Whirlpool’s argument that this fasteners language only
applies in the context of the finished goods kit exclusion
and that it did not apply in the separate finished mer-
chandise exclusion. J.A. 342–43. Commerce concluded,
therefore, that “the mere inclusion of fasteners, in this
case the plastic end caps, does not result in the extruded
aluminum handles falling outside the scope of the Orders
as extruded finished merchandise.” J.A. 341.
According to the CIT in Whirlpool I, Commerce erred
in its August 2014 Scope Ruling interpretation of the
Orders’ scope because Commerce’s “presum[ption] that
the exception for fasteners in the finished goods kit exclu-
12 WHIRLPOOL CORPORATION v. UNITED STATES
sion applies to the finished merchandise exclusion as well
. . . is at odds with established principles of construction.”
J.A. 47–48. We agree with the CIT.
As noted above, although Commerce “enjoys substan-
tial freedom to interpret and clarify its antidumping duty
orders . . . , it may not change them.” Ericsson, 60 F.3d at
782. Commerce’s interpretation of the fasteners exception
and whether it applies to the finished merchandise exclu-
sion is contrary to the terms of the Orders, and is there-
fore incorrect. Smith, 915 F.2d at 686.
We first assess whether the plain language of the ex-
ception for fasteners is unambiguous. Meridian, 851 F.3d
at 1383. As we have noted, the question of whether some
ambiguity exists, is a question of law that we review de
novo. Id. at 1382. We conclude that the exception for
fasteners unambiguously applies only to the finished
goods kit exclusion and not to the finished merchandise
exclusion for at least three reasons.
First, the single sentence that describes the fasteners
exception specifically refers only to a finished goods kit
and does not mention finished merchandise. See Anti-
dumping Duty Order, 76 Fed. Reg. at 30,651. Second, this
sentence describes how a product will not be considered a
finished good kit “merely by including fasteners . . . in the
packaging.” Id. (emphasis added). This reference to “the
packaging” refers back to the finished good kit exclusion
where “[a] finished good kit is understood to mean a
packaged combination of parts.” Id. (emphasis added).
There is no reference to packaging in the finished mer-
chandise exclusion. Finally, finished merchandise is
“fully and permanently assembled and completed at the
time of entry,” whereas finished goods kits enter unas-
sembled as “a packaged combination of parts.” Id. We
find it reasonable that Commerce, in drafting the Orders,
would have elected to treat assembled merchandise
differently from goods entering unassembled in kit form.
WHIRLPOOL CORPORATION v. UNITED STATES 13
We therefore agree with the CIT that if Commerce had
actually intended to sweep into the scope all finished
merchandise consisting solely of aluminum extrusion
components and fasteners, it would have done so in the
scope language rather than expressly confining its fasten-
ers exception to the finished goods kit exclusion.
Because we conclude that the exception for fasteners
is unambiguous, the plain meaning of its language gov-
erns. Meridian, 851 F.3d at 1381. Therefore, the fasten-
ers exception only applies to the finished goods kit
exclusion and it does not apply to the finished merchan-
dise exclusion.
Having concluded that Commerce applied an incorrect
interpretation of the fasteners exception language of the
Orders, we need not determine whether substantial
evidence supports its August 2014 Scope Ruling finding
that Whirlpool’s assembled handles do not meet the
exclusion criteria for finished merchandise. 4
Because, in Commerce’s view, the fasteners exception
applied to the finished merchandise exclusion, it did not
reach a determination in its Scope Ruling as to whether
Whirlpool’s assembled handles actually meet the re-
quirements for the finished merchandise exclusion in the
first place. In its April 2016 Redetermination Decision,
4 On appeal, the parties also dispute whether sub-
stantial evidence supports Commerce’s determination in
its August 2014 Scope Ruling that the plastic end caps
contained in Whirlpool’s door handles are fasteners.
Because we conclude today that the fasteners exception
does not apply to the finished merchandise exclusion,
however, the question of whether these end caps fall
within the scope language’s reference to “fasteners” is not
relevant to determining whether Whirlpool’s assembled
handles qualify for the finished merchandise exclusion.
14 WHIRLPOOL CORPORATION v. UNITED STATES
Commerce also declined to address AEFTC’s argument
that Whirlpool’s assembled handles should not fall under
the finished merchandise exclusion because they are
merely parts of a larger, final finished product (e.g., a
refrigerator), and that it is only the larger, final finished
product itself that is included under the finished mer-
chandise exclusion. Commerce stated that the question of
whether the assembled handles meet the requirements
for the finished merchandise exclusion was rendered moot
by the CIT’s determination that there is no general scope
language which covers these products.
Because Commerce did not reach this determination,
the CIT also declined to engage in an analysis of the
finished merchandise exclusion in Whirlpool II. Accord-
ingly, we do not now, for the first time on appeal, deter-
mine whether Whirlpool’s assembled handles meet the
requirements for the finished merchandise exclusion,
namely whether the assembled handles are “merchandise
containing aluminum extrusions as parts that are fully
and permanently assembled and completed at the time of
entry.” Antidumping Duty Order, 76 Fed. Reg. at 30,651.
On remand, Commerce will be given an opportunity to
arrive at a legally permissible interpretation of the fin-
ished merchandise exclusion and Whirlpool’s assembled
handles should be reassessed in light of that interpreta-
tion. See Ericsson, 60 F.3d at 783.
CONCLUSION
We conclude that substantial evidence supports
Commerce’s August 2014 Scope Ruling that the general
scope language of the Orders describes Whirlpool’s as-
sembled handles. Accordingly, we reverse Whirlpool II
affirming Commerce’s April 2016 Redetermination Deci-
sion and instruct the CIT to vacate Commerce’s April
2016 Redetermination Decision and reinstate the portion
of Commerce’s August 2014 Scope Ruling finding that the
assembled handles fall within the general scope language.
WHIRLPOOL CORPORATION v. UNITED STATES 15
We also vacate those portions of the CIT’s Whirlpool I
holding that the general scope language of the Orders did
not describe Whirlpool’s assembled handles.
With respect to the exclusions from the Order’s scope,
we conclude that the exception for fasteners unambigu-
ously applies only to the finished goods kit exclusion and
not to the finished merchandise exclusion. Further,
because the finished goods kit exclusion is inapplicable to
Whirlpool’s assembled handles, so too is the fasteners
exception to the finished goods kit exclusion. Accordingly,
we affirm those portions of Whirlpool I that are consistent
with these conclusions and instruct the CIT to vacate the
remainder of Commerce’s August 2014 Scope Ruling. 5
Finally, the case is remanded to the CIT for further
proceedings, in keeping with this opinion, to determine
whether Whirlpool’s assembled handles meet the re-
quirements for the finished merchandise exclusion.
AFFIRMED-IN-PART, REVERSED-IN-PART
VACATED-IN-PART, AND REMANDED
COSTS
The parties shall bear their own costs.
5 These decisions are only reversed or vacated as to
those portions addressing Whirlpool’s December 2013
Scope Request pertaining to the assembled handles with
end caps. The January 2014 Scope Request, which dealt
with aluminum extruded appliance handles that consisted
of a single aluminum extrusion without end caps or other
components, is not addressed by the instant appeal, as
Whirlpool did not appeal the CIT decision that these
handles were covered by the Orders.
United States Court of Appeals
for the Federal Circuit
______________________
WHIRLPOOL CORPORATION,
Plaintiff-Appellee
v.
UNITED STATES,
Defendant
ALUMINUM EXTRUSIONS FAIR TRADE
COMMITTEE,
Defendant-Appellant
______________________
2017-1117
______________________
Appeal from the United States Court of International
Trade in No. 1:14-cv-00199-TCS, Chief Judge Timothy C.
Stanceu.
______________________
REYNA, Circuit Judge, concurring-in-part, dissenting-in-
part.
I concur with the majority that “the interpretation
relied on by the CIT in Whirlpool I was improper, and
substantial evidence supports Commerce’s finding in its
August 2014 Scope Ruling that the general scope lan-
guage includes Whirlpool’s assembled handles.” Maj. Op.
at 10.
2 WHIRLPOOL CORPORATION v. UNITED STATES
The majority highlights a fundamental error in the
CIT’s holding that the “general scope language is not
reasonably interpreted to include the assembled handles
because ‘[t]he handles at issue are not themselves “extru-
sions” but rather are assemblies, each of which contains
an extrusion, machined and surface-treated, as the prin-
cipal component.’” Id. at 9. I agree with the majority that
“[t]his conclusion is incorrect.” Id.
The court’s holding that the general scope language is
reasonably interpreted to include the Whirlpool handles
drives the remainder of the scope review because a scope
inquiry first begins by asking whether the good in ques-
tions is covered under the general scope language of the
duty order. The answer here is yes. The next question is
whether a good covered by the general scope language is
excluded under an exclusion provision. Here, it is undis-
puted that the handles are not excluded under the fin-
ished goods kit exclusion. The majority concludes that
Commerce left unanswered the question whether the
finished merchandise exclusion applies, and, on this basis,
remands so that Commerce may address the applicability
of the finished merchandise exclusion.
The record is clear, however, that Commerce has ad-
dressed the question of whether Whirlpool’s handles are
excluded under the finished merchandise exclusion. 1 In
1 This appeal involves the CIT’s judgment on Com-
merce’s initial scope ruling determination and Com-
merce’s remand scope ruling determination. We review
the CIT’s decisions de novo applying to Commerce’s
determination the same standard of substantial evidence
review as used by the CIT in review of Commerce’s scope
ruling determination. See King Supply Co., LLC v. Unit-
ed States, 674 F.3d 1343, 1348 (Fed. Cir. 2012) (“In re-
viewing the Trade Court’s decision on the Scope Ruling,
WHIRLPOOL CORPORATION v. UNITED STATES 3
its initial scope determination, Commerce determined
that the good in question is a covered good; there are no
components or parts included, whether loose or attached. 2
Accordingly, it does not fall under either the finished
merchandise exclusion or the finished goods kits exclu-
sion. See J.A. 340 (“Based on the information provided by
Whirlpool . . . we find that the handles at issue are com-
prised entirely of extruded aluminum and fasteners (i.e.
plastic end caps). Therefore, we find the handles do not
meet the Department’s first test for determining whether
a good constitutes a finished good or finished goods kit, as
established in the Geodesic Domes Scope Ruling.”).
Commerce explained in its initial scope ruling that
the difference between “finished goods” and “finished
goods kits” is that the former is assembled upon entry
while the latter is unassembled upon entry. J.A. 342–43.
Commerce found unconvincing the “notion that an unas-
sembled product in kit-form that consists solely of extrud-
‘we step into the shoes of the [Trade Court] and apply the
same deferential “substantial evidence” standard of
review that it applied to its review of Commerce’s deter-
mination.’ We must therefore uphold Commerce’s deter-
mination unless the Scope Ruling is unsupported by
substantial evidence on the record, or otherwise not in
accordance with law.” (quoting Walgreen Co. v. United
States, 620 F.3d 1350, 1354 (Fed. Cir. 2010)) (internal
citations omitted)).
2 The Orders define “finished merchandise” as mer-
chandise containing aluminum extrusions as parts that
are fully and permanently assembled and completed at
the time of entry, such as finished windows with glass or
vinyl, picture frames with glass plane and backing mate-
rial, and solar panels. Antidumping Duty Order, 76 Fed.
Reg. at 30,651.
4 WHIRLPOOL CORPORATION v. UNITED STATES
ed aluminum, save for fasteners, would, per the analysis
from the Geodesic Domes Scope Ruling, fall inside the
scope while the identical product entering the United
States as an assembled good, would fall outside the scope
of the Orders.” J.A. 343. Commerce determined that if a
product that only consists of aluminum extrusions and
fasteners, as in this case, satisfies the finished merchan-
dise exclusion, the exclusion would swallow the scope
“because any aluminum extrusion products, as long as it
can be identified by end use, could be considered a fin-
ished product.” Id. Commerce reasoned that this cannot
be the correct interpretation because it is contrary to the
scope itself, which covers aluminum extrusions. Id.
Commerce preserved these factual conclusions when it
filed under protest its remand determination pursuant to
the CIT’s remand. See J.A. 22.
I defer to Commerce on interpreting its own anti-
dumping duty orders and would affirm Commerce’s
August 2014 Scope Ruling on the basis that it is not
unreasonable and is otherwise supported by substantial
evidence. See King Supply, 674 F.3d at 1348 (“Commerce
is entitled to substantial deference with regard to its
interpretations of its own antidumping duty orders. This
deference is appropriate because the meaning and scope
of antidumping orders are issues particularly within the
expertise and special competence of Commerce.” (internal
citations and quotations omitted)). Therefore, I respect-
fully concur-in-part and dissent-in-part from the majority
opinion.