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