The U.S. Department of Commerce (DOC), on December 15, 2017, issued a determination that provided guidance on the meaning of an exclusion for “finished heat sinks” in the scope of the antidumping and countervailing duty (AD/CVD) orders on aluminum extrusions from China.

The determination emphasizes that the DOC requires importers to provide compelling evidence that goods satisfy all criteria to qualify for the exemption, including having been designed and produced to meet “specified thermal performance requirements” and thoroughly tested for compliance with those requirements. The DOC issued this guidance in the context of a redetermination on remand in connection with a lawsuit filed at the Court of International Trade (CIT) by Agilent Technologies Inc. (Agilent). See Agilent Technologies Inc. v. United States, Court No 16-00183, Slip Op. 17-119.

Background

Since May 26, 2011, the DOC has maintained AD/CVD orders on a broad range of aluminum extrusions from China. The broad and somewhat confusing wording of the scope of those orders, along with certain specific exemptions, has given rise to well over 100 scope ruling requests to the DOC. The resulting scope determinations have led to numerous challenges at the CIT. One set of scope requests and court challenges concerns an exclusion for “finished heat sinks,” which the DOC added at the end of the original investigation to accommodate a special decision by the U.S. International Trade Commission that “finished heat sinks” constituted a separate “like product” than all other aluminum extrusions. The language of the scope exclusion is as follows:

Also excluded from the scope of the orders are finished heat sinks. Finished heat sinks are fabricated heat sinks made from aluminum extrusions the design and production of which are organized around meeting certain specified thermal performance requirements and which have been fully, albeit not necessarily individually, tested to comply with such requirements.

On August 10, 2016, the DOC issued a scope ruling determining that a “mass filter radiator” designed by Agilent did not qualify for the exclusion for finished heat sinks and thus fell under the scope of the order. In the original scope ruling, the DOC ruled that Agilent’s identification of “specific surface finish, flatness, perpendicularity, and locational tolerances” did not constitute “specified thermal performance requirements.” Furthermore, the DOC ruled that a research and development declaration submitted by Agilent during the DOC scope proceeding, which outlines the product’s thermal performance testing metrics, fails to sufficiently prove “that such thermal performance specifications existed” when the product was originally designed. Therefore, the requirement that design and production be “organized around” such specifications was not met, according to the DOC.

In a September 1, 2017 opinion, the CIT held that the DOC did not provide sufficient explanation for its decision, including sufficient analysis regarding evidence that Agilent claimed supported its contention that the mass filter radiator in question met the requirements of the scope exclusion for finished heat sinks. The CIT then remanded the matter to the DOC to address more thoroughly its interpretation of the heat sink requirement and to apply those requirements to the evidence that Agilent presented to the DOC.

DOC Redetermination on Remand

In its redetermination, the DOC stated that all of the following elements must be satisfied for a product to be excluded under the finished heat sink exclusion: (1) the product must be a “fabricated heat sink” that is “made from aluminum extrusions”; (2) specified thermal performance requirements must exist; (3) the product’s design must have been organized around meeting the specified thermal performance requirements; (4) the product’s production must be organized around meeting the specified thermal performance requirements; and (5) the product’s production must have been fully, albeit not necessarily individually, tested to comply with the specified thermal performance requirements.

The DOC made clear in its redetermination on remand that it is strictly construing each of these requirements. For example, the DOC held that although Agilent’s mass filter radiator may serve the same functions as a “fabricated heat sink” (or even a “finished heat sink”) by dissipating and transferring heat, Agilent’s product has “other necessary design features” that were not “organized around meeting certain specified thermal performance requirements.” Further, the DOC concluded that Agilent did not provide sufficient proof of the “thermal performance requirements” around which its mass filter radiator was supposedly designed. Finally, the DOC stated that in order to meet the testing requirement specified in the scope exclusion, it was not enough to demonstrate that the mass filter radiator was generally tested to measure thermal performance in the ordinary course of business. Instead, the scope language requires that the imported product be tested to comply with “specified thermal performance requirements.”

Conclusion

Through its remand redetermination, the DOC has signaled that it will be construing the “finished heat sink” exclusion very narrowly. In so doing, the DOC appears to be foreclosing attempts by importers to assert that various downstream products made out of extruded aluminum qualify for the “finished heat sink” exclusion simply by pointing to heat-dissipation properties of the downstream product to be imported. It remains to be seen, however, whether the DOC’s narrow construction will be upheld by the U.S. courts.