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Solar Panel Mount Exporter to File for Rehearing at CAFC Over Scope Ruling

Exporter China Custom Manufacturing will file a motion for a rehearing and seek en banc review of the U.S. Court of Appeals for the Federal Circuit's decision finding the company's solar panel mounts do not qualify for the "finished merchandise" exclusion from the antidumping and countervailing duty orders on aluminum extrusions from China, George Tuttle, counsel for CCM, told Trade Law Daily (China Custom Manufacturing Inc. v. United States, Fed. Cir. # 22-1345).

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CCM will claim that the Federal Circuit did not follow the proper analysis of the unambiguous meaning of the finished merchandise exclusion, given the court's opinion in Whirpool Corp. v. U.S. and the Court of International Trade's opinions in Columbia Aluminum Products v. U.S. and Worldwide Door Components v. U.S., Tuttle said. In the two cases, Commerce excluded certain door thresholds from the scope of the AD/CVD orders on aluminum extrusions from China under the finished merchandise exclusion (see 2212190051).

Commerce originally held CCM's RockIt 3.0 solar roof mounts don't qualify for the finished merchandise exclusion since they don't include all the parts of the downstream product, a solar panel mounting system. The Court of International Trade upheld the ruling (see 2112070031), citing the Federal Circuit's ruling in Shenyang Yuanda v. U.S., which found the finished merchandise exclusion was not applicable to curtain wall units that were not complete upon entry and were meant to be attached to other units to form a completed curtain wall. The Federal Circuit also cited Shenyang in affirming the trade court's decision (see 2303020037).

"Commerce in Columbia and Worldwide, in contrast, ruled that the door thresholds were excluded from the order based on Judge [Timothy] Stanceu’s analysis of the unambiguous language of the finished merchandise exclusion in the order -- which decisions were contrary to the decision of Judge [Stephen] Vaden subject to the CCM CAFC appeal," Tuttle said.

Tuttle added that he will attempt to distinguish Shenyang "as limited as a matter of law" and argue that the court's finding that "parts or subassemblies cannot be finished merchandise" is "dicta," or "not necessary to the holding and is contrary to the unambiguous language of the finished merchandise exclusion defining parts of finished merchandise as excluded from" the AD order.