Shenyang Yuanda Aluminum Industry Engineering Co. v. United States, 100616 USCIT, 14-00106

Docket Nº:14-00106[1]
Opinion Judge:DONALD C. POGUE, SENIOR JUDGE
Party Name:SHENYANG YUANDA ALUMINUM INDUSTRY ENGINEERING CO., Plaintiff, v. UNITED STATES, Defendant. Slip Op. 16 - 94
Attorney:James R. Cannon, Jr., John D. Greenwald, and Thomas M. Beline, Cassidy Levy Kent, LLP, of Washington, DC, for Plaintiff Yuanda. Kristen S. Smith, Arthur K. Purcell, and Michelle L. Mejia, Sandler, Travis, & Rosenberg, P.A., of Washington, DC, for Consolidated Plaintiff Jangho. William E. Perry, E...
Judge Panel:Before: Donald C. Pogue, Senior Judge
Case Date:October 06, 2016
Court:Court of International Trade
 
FREE EXCERPT

SHENYANG YUANDA ALUMINUM INDUSTRY ENGINEERING CO., Plaintiff,

v.

UNITED STATES, Defendant.

No. 14-001061

Slip Op. 16 - 94

Court of Appeals of International Trade

October 6, 2016

Redetermination remanded for further consideration in accordance with this opinion.

James R. Cannon, Jr., John D. Greenwald, and Thomas M. Beline, Cassidy Levy Kent, LLP, of Washington, DC, for Plaintiff Yuanda.

Kristen S. Smith, Arthur K. Purcell, and Michelle L. Mejia, Sandler, Travis, & Rosenberg, P.A., of Washington, DC, for Consolidated Plaintiff Jangho.

William E. Perry, Emily Lawson, and Kate Kennedy, Dorsey & Whitney LLP, of Seattle, WA, for Consolidated Plaintiff Permasteelisa.

Douglas G. Edelschick, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for the Defendant. With him on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel was Scott D. McBride, Senior Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

David M. Spooner and Christine J. Sohar Henter, Barnes & Thornburg, LLP, of Washington, DC, for Defendant-Intervenor, the Curtain Wall Coalition.

Before: Donald C. Pogue, Senior Judge

OPINION AND ORDER

DONALD C. POGUE, SENIOR JUDGE

This action comes again before the court following a second remand and redetermination.

In prior proceedings, the Plaintiffs Shenyang Yuanda Aluminum Industry Engineering Co., Ltd. and Yuanda USA Corporation (collectively "Yuanda"); Jango Curtain Wall Americas Co. ("Jangho"); and Permasteelisa North America Corp., Permasteelisa South China Factory, and Permasteelisa Hong Kong Ltd. (collectively "Permasteelisa"), challenged the scope determination, 2 made by the Defendant, the U.S. Department of Commerce ("Commerce"), that Yuanda's unitized curtain wall, i.e., a complete curtain wall, unitized and imported in phases pursuant to a sales contract, was within the scope of the antidumping and countervailing duty orders (the "AD&CVD Orders" or the "Orders") on aluminum extrusions from the People's Republic of China ("PRC").3

In the second redetermination, however, Commerce has, under protest, found Yuanda's unitized curtain wall excluded from the scope of the Orders, resulting in a reversal of positions. Now Defendant-Intervenors, Walters & Wolf, Architectural Glass & Aluminum Company, and Bagatelos Architectural Glass Systems, Inc. (collectively the "Curtain Wall Coalition" or "CWC") challenge Commerce's determination. Def.-Intervenors' Comments in Opp'n to Commerce's Final Results of Redetermination Filed on May 13, 2016, Pursuant to Ct. Remand, ECF No. 113 ("CWC Br.").

Review of Commerce's re-determination involves consideration of prior decisions, the descriptions of the merchandise contained in the petition, and the requirements of Commerce's subassemblies test for exclusion from the Order, all of which will be discussed below.[4] The court has jurisdiction pursuant to § 516A(a)(2)(B)(vi) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(vi) and 28 U.S.C. § 1581(c) (2012).5

BACKGROUND

The issues presented here stem from the language of Commerce's AD&CVD Orders on aluminum extrusions from the PRC. See Aluminum Extrusions from the [PRC], 76 Fed. Reg. 30, 650 (Dep't Commerce May 26, 2011) (antidumping duty order) ("AD Order"); Aluminum Extrusions from the [PRC], 76 Fed. Reg. 30, 653 (Dep't Commerce May 26, 2011) (countervailing duty order) ("CVD Order"). The Orders cover "aluminum extrusions, " defined as "shapes and forms, produced by an extrusion process, made from [certain] aluminum alloys." AD Order, 76 Fed. Reg. at 30, 650; CVD Order, 76 Fed. Reg. at 30, 653. Aluminum extrusions "described at the time of importation as parts for final finished products" such as "window frames, door frames, solar panels, curtain walls, or furniture, " to be "assembled after importation, " are subject to the order if such parts "otherwise meet the definition of aluminum extrusions, " AD Order, 76 Fed. Reg. at 30, 650-51; CVD Order, 76 Fed. Reg. at 30, 654 (emphasis added), that is, they are shapes or forms made from the covered aluminum alloys and made by an extrusion process, AD Order, 76 Fed. Reg. at 30, 650; CVD Order, 76 Fed. Reg. at 30, 653.6 The Orders also cover "aluminum extrusion components that are attached (e.g., by welding or fasteners) to form subassemblies, i.e., partially assembled merchandise." AD Order, 76 Fed. Reg. at 30, 651; CVD Order, 76 Fed. Reg. at 30, 654.

The Orders exclude finished goods - that is, "finished merchandise containing aluminum extrusions as parts" - so long as such merchandise is "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." AD Order, 76 Fed. Reg. at 30, 651; CVD Order, 76 Fed. Reg. at 30, 654.7 The Orders also exclude "finished goods containing aluminum extrusions that are entered unassembled in a 'finished goods kit.'" Id. A finished goods kit is "a packaged combination of parts that contains, at the time of importation, all of the necessary parts to fully assemble a final finished good and requires no further finishing or fabrication, such as cutting or punching, and is assembled 'as is' into a finished product."[8]

Subassemblies may also be excluded from the Orders, provided that they enter as part of a "finished goods kit."9 Further, a subassembly may be excluded pursuant to the "subassemblies test" exclusion devised by Commerce in Aluminum Extrusions from the [PRC], A-570-967 & C-570-968 (Dep't of Commerce Sept. 24, 2012) (preliminary side mount valve controls scope Ruling) at 7 ("SMVC Scope Ruling") (adopted unchanged in Aluminum Extrusions from the [PRC], A-570-967 & C-570-968 (Dep't of Commerce Oct. 26, 2012) (final side mount valve controls scope ruling)).

The Orders have been addressed in several relevant scope proceedings. Prior to the Yuanda Scope Ruling at issue here, Commerce issued Aluminum Extrusions from the [PRC], A-570-967 & C-570-968 (Dep't of Commerce Nov. 30, 2012) (final scope ruling on curtain wall units and other parts of a curtain wall system) ("CWC Scope Ruling"). There, Commerce determined that "parts of curtain wall[s], " defined as curtain wall sections, that "fall short of the final finished curtain wall that envelopes an entire building structure, " including, but not limited to individual curtain wall units (i.e., "modules that are designed to be interlocked with [each other], like pieces of a puzzle"), were within the scope of the Orders. CWC Scope Ruling at 3, 10. Both this Court and the CAFC affirmed, holding that "[a] single [curtain wall] unit" is not a whole "curtain wall, " and as such, is a "part" or "subassembly" of a curtain wall. Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, 776 F.3d 1351, 1357-58 (Fed. Cir. 2015) ("Yuanda II) (citing Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, ___ CIT ___, 961 F.Supp.2d 1291, 1298-99 (2014) ("Yuanda I")).10

In the Yuanda Scope Ruling, Commerce determined that complete curtain wall units sold "pursuant to a contract to supply a complete curtain wall system" were within the scope of the Orders. Yuanda Scope Ruling at 1 (footnote omitted). Yuanda, Jangho, and Permasteelisa appealed the ruling to this Court. In their initial motions for summary judgment on appeal, Plaintiffs brought attention to the fact that Commerce had not considered the "description of the merchandise contained in the [P]etition, " see 19 C.F.R. § 351.225(k)(1), in particular, an exhibit from that Petition that listed "unassembled unitized curtain walls" as non-subject merchandise under the "finished goods kit" exclusion. Petition, ECF No. 83-3 at Tab 10, at Exhibit I-5.11 Commerce requested and was granted a voluntary remand to consider this evidence. Def.'s Consent Mot. for Voluntary Remand, ECF No. 49; Order, Dec. 9, 2014, ECF No. 50.

On redetermination, Commerce found that, based on the Petition, unassembled curtain wall units were within the scope of the AD&CVD Orders unless all necessary parts for an entire curtain wall were present "at the time of importation, " i.e., in the same entry, on a single Customs and Border Protection ("CBP") 7501 Entry Summary form. Redetermination I, ECF No. 68-1, at 16. The court remanded again, finding that Commerce's determination was not in accordance with law and unreasonable. Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, ___ CIT ___, 146 F.Supp.3d 1331 (2016) ("Yuanda III"). The...

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