US, Defendant-Appellees Defend Scope Ruling on T-Series Aluminum Alloy at CAFC
In the U.S. Court of Appeals for the Federal Circuit, the U.S. and defendant-appellee petitioners fought back against an importer’s opening brief that argued a Commerce Department scope ruling “would overturn more than 10 years of black-letter law” (Valeo North America v. U.S., Fed. Cir. # 24-1189).
Importer Valeo North America’s challenge was baseless, the government and petitioner said. Despite what Valeo claimed, Commerce had made a reasonable ruling about the ambiguity of a scope order before moving on to the next steps, they said.
Valeo lost its case in the Court of International Trade in November when Judge Mark Barnett ruled the importer’s T-series aluminum sheet was covered by AD/CVD (see 2311090034). Valeo pointed to an Aluminum Association industry publication that, it said, showed how its unregistered alloy could not be 3XXX-series alloy covered by the orders’ scope. But Barnett said that Commerce had considered the publication adequately as a k(1) factor and it is “not the court’s role to ‘reweigh the evidence.’”
Valeo said upon appeal to CAFC that, based on industry terms from the Teal Sheets, the scope orders unambiguously excluded unregistered alloys. Commerce should never have reached k(1) factors, it said (see 2401290037).
But Commerce and CIT were right to find the scope orders ambiguous, said the government and defendant-appellant petitioner the Aluminum Association Common Alloy Aluminum Sheet Trade Enforcement Working Group. Commerce, they said, “properly evaluated the key terms at issue noting that scope language is necessarily written in general terms, while also taking into consideration evidence of trade usage.”
The U.S. said Valeo is arguing that the language of the orders “when read with the Teal Sheets support[s] only one interpretation of the scope,” but that this position was rightly rejected in the trade court. Valeo was only looking to one part of the Teal Sheets, designations of registered alloys, while ignoring the publication’s general series grouping (“i.e., the language indicating that the 3XXX-series designates aluminum sheets with a primary alloying element of manganese”),
“Commerce also explained, however, that the phrase [in the orders] ‘as designated by the Aluminum Association’ could reasonably be interpreted as directing to the location of the alloy series definitions where one could interpret a 3XXX-series alloy as any alloy having a primary alloying agent of manganese,” the government said.
The usage of the phrase “as designated by the Aluminum Association” in trade shed no further light on the issue, so Commerce rightfully moved on to an analysis of k(1) factors, it said. It said Commerce had not ignored the industry publication, despite what Valeo argued.
Valeo also argued in its CAFC brief that the term “common” in the orders on common aluminum alloy sheet refers only to registered alloys. But the importer hadn’t raised that argument after Commerce's remand redetermination, so it waived the position, the government said.
Even if CAFC does allow that argument by Valeo to proceed, it said, the term “common” also is defined by Merriam Webster as “the best known or most frequently seen kind.” So Commerce was right that it is possible to say that alloys with a primary alloying agent of manganese are “a frequently seen kind of aluminum alloy,” it said.
The government and the Aluminum Association defended Commerce’s use of a separate rate determination from the initial AD investigation in its analysis of k(1) factors for its ruling. The department relied on a final determination, which is a source that is “explicitly identified” by statute “as appropriate for consideration,” the Association said.