Guangzhou Jangho Curtain Wall Sys. Eng'g Co. v. United States, Slip Op. 16-87
| Decision Date | 19 September 2016 |
| Docket Number | Court No. 15-00023,Slip Op. 16-87, Court No. 15-00024 |
| Citation | 181 F.Supp.3d 1265 |
| Parties | Guangzhou Jangho Curtain Wall System Engineering Co., Ltd., et al., Plaintiffs, v. United States, Defendant. Guangzhou Jangho Curtain Wall System Engineering Co., Ltd., et al., Plaintiff, v. United States, Defendant. |
| Court | U.S. Court of International Trade |
Kristen Smith , Arthur K. Purcell , and Michelle L. Mejia , Sandler, Travis, & Rosenberg, P.A., of Washington, DC, for Plaintiff.
Aimee Lee , Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of New York, NY, for the Defendant. With her on the brief were Benjamin C. Mizer , Principal Deputy Assistant Attorney General, Jeanne E. Davidson , Director, and Patricia M. McCarthy , Assistant Director. Of counsel were Scott D. McBride , Senior Attorney, and Jessica M. Link , Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Alan E. Price , Robert E. DeFrancesco , and Derick G. Holt , Wiley Rein LLP, of Washington, DC, for Defendant-Intervenor.
In these two actions, Guangzhou Jangho Curtain Wall System Engineering Co. Ltd. and Jangho Curtain Wall Hong Kong Ltd. (collectively "Jangho" or "Plaintiff") challenge the results of two related administrative reviews conducted by Defendant, the U.S. Department of Commerce ("Commerce")—the second administrative review of the antidumping duty ("AD") order on aluminum extrusions from the People's Republic of China ("PRC") and the second administrative review of the countervailing duty ("CVD") order on aluminum extrusions from the PRC.1
Currently before the court are Plaintiff's USCIT Rule 56.2 motions for judgment on the agency record. Pls.' 56.2 Mot. for J. on the Agency R., Ct. No. 15-23, ECF No. 31; Pls.' Mot. for J. on the Agency R., Ct. No. 15-24, ECF No. 32.2 Plaintiff claims that Commerce's decision to include Plaintiff's curtain wall and window wall imports within the scope of the review was neither in accordance with law nor supported by a reasonable reading of the record evidence. Pl.'s Br., Ct. No. 15-23, ECF No. 31-1, at 6-7; see Pl.'s Br., Ct. No. 15-24, ECF No. 32-1, at 1-2. Plaintiff further argues that Commerce's decision to assess antidumping and countervailing duties on Jangho's entries prior to the initiation of a formal scope inquiry was not in accordance with law. Pl.'s Br., Ct. No. 15-23, ECF No. 31-1, at 18-23; Pl.'s Br., Ct. No. 15-24, ECF No. 32-1, at 6-14. Defendant opposes Plaintiff's motions. Def.'s Resp. to , Ct. No. 15-23, ECF No. 34 ("Def.'s Resp."); Def.'s Resp. to ("Def.'s Resp."), Ct. No. 15-24, ECF No. 34. Defendant-Intervenor, the Aluminum Extrusions Fair Trade Committee ("AEFTC") concurs with and adopts by reference Defendant's arguments. [AEFTC]'s Resp. to , Ct. No. 15-23, ECF No. 36; [AEFTC]'s Resp. to , Ct. No. 15-24, ECF No. 36. The court has jurisdiction pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012) and 28 U.S.C. § 1581(c) (2012).3
The court affirms in part and remands to Commerce in part for further consideration, holding that Commerce's determination to include Plaintiff's curtain wall products within the scope of the review was procedurally deficient, as it was not in accordance with the methodology set forth in Commerce's regulations, and substantively insufficient as it was not supported by a reasonable reading of the record evidence.
The issues presented here stem from the language of Commerce's AD & CVD Orders on aluminum extrusions from the PRC. SeeAluminum 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 impose duties on aluminum extrusions, which are "shapes and forms" made from certain aluminum alloys, "produced by an extrusion process." AD Order, 76 Fed. Reg. at 30,650 ; CVD Order, 76 Fed. Reg. at 30,653. Aluminum extrusions that are "described at the time of importation as parts for final finished products" are also "include[d] in the scope" if they "otherwise meet [this] definition of aluminum extrusions." AD Order, 76 Fed. Reg. at 30,650 -51; CVD Order, 76 Fed. Reg. at 30,654.4 Similarly, "aluminum extrusion components that are attached (e.g., by welding or fasteners) to form subassemblies, i.e., partially assembled merchandise," are also within the scope of the order. AD Order, 76 Fed. Reg. at 30,651 ; CVD Order, 76 Fed. Reg. at 30,654. In contrast, the Orders exclude finished merchandise "containing aluminum extrusions as parts" and "finished goods" that are "entered unassembled in a ‘finished goods kit.’ " AD Order, 76 Fed. Reg. at 30,651 ; CVD Order, 76 Fed. Reg. at 30,654. Subassemblies may be excluded as well, provided that they enter the United States as part of or as "finished goods" or "finished goods kits." AD Order, 76 Fed. Reg. at 30,651 ; CVD Order, 76 Fed. Reg. at 30,654.5
The scope of the AD & CVD Orders has been questioned in three previous scope rulings on curtain wall products; two are relevant here.6
In the first, requested by the Curtain Wall Coalition ("CWC"),7 Commerce determined that "curtain wall parts," defined as parts 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. Jangho, as well as Shenyang Yuanda Aluminum Industry Engineering Co., Ltd. and Yuanda USA Corporation (collectively "Yuanda")8 participated as interested parties, submitting comments in opposition. CWC Scope Ruling at 2. Yuanda and Jango subsequently challenged this finding before the Court of International Trade ("CIT"); the CIT affirmed. Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, ––– CIT ––––, 961 F.Supp.2d 1291 (2014)("Yuanda I"). The plaintiffs appealed this decision to the Court of Appeals for the Federal Circuit ("CAFC"); the CAFC affirmed, Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, 776 F.3d 1351 (Fed.Cir.2015) ("Yuanda II").
In the second scope ruling, requested by Yuanda while Yuanda I was still pending before the CIT, Commerce determined, contrary to Yuanda and Jangho's arguments,9 that complete curtain wall units sold "pursuant to [a] contract[ ] to supply [a] complete curtain wall [system]" were within the scope of the AD & CVD Orders. Yuanda Scope Ruling at 1 (footnote and internal quotation marks omitted). Yuanda and Jangho appealed this ruling to the CIT; this Court remanded twice, the first at the request of Commerce and the second upon a finding that Commerce's determination was not in accordance with law, unsupported by substantial evidence, and arbitrary and capricious. Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, ––– CIT ––––, 146 F.Supp.3d 1331 (2016) ("Yuanda III"). The second redetermination on remand in the Yuanda Scope Ruling is now pending before this Court. [2d] results of Redetermination Pursuant to Ct. Remand, Consol. Ct. No. 14-106, ECF Nos. 109-1 (conf. ver.) & 110-1 (pub. ver.).
On May 1, 2013, Commerce published notice of the opportunity to request administrative review of the AD Order for the period of May 1, 2012 through April 30, 2013, and the CVD Order for the period of January 1, 2012 through December 31, 2012. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 78 Fed. Reg. 25,423 (Dep't Commerce May 1, 2013). At this time, with Yuanda I pending before the CIT and the Yuanda Scope Ruling pending before Commerce, the status of various curtain wall products was uncertain. Amidst this uncertainty, Jangho requested, in accordance with 19 C.F.R. § 351.213, an administrative review of its entries.10
Jangho participated in the AD Review, filing a separate rate application.11 Commerce selected Jangho as a mandatory respondent and issued questionnaires.12 Jangho filed its Section A Questionnaire Response, but noted that "for reasons explained in detail to [Commerce] in the pending [Yuanda Scope Ruling], Jangho's imported finished curtain wall units, the product manufactured by Jangho and exported to the United States, fall outside the scope of the aluminum extrusions orders." [Jangho's] Sect. A Questionnaire Resp., A-570-967 (Nov. 18, 2013) ( ) at A-2, reproduced in Def.'s App., Ct. No. 15-23, ECF No. 35, at Tab 4. Jangho emphasized that it was answering Commerce's questionnaires "[t]o show its good faith as a mandatory respondent ... pending ... the as of yet undecided scope inquiry."Id. Jangho also filed its Section C and Section D Questionnaire Responses. See[Jangho's] Sect. C Questionnaire Resp., A-570-967 (Dec. 9, 2013), reproduced in Def.'s App., Ct. No. 15-23, ECF No. 35-2, at Tabs 23-26; [Jangho's] Sect. D Questionnaire Resp., A-570-967 (Dec. 12, 2013), reproduced in Def.'s App., Ct. No. 15-23, ECF No. 35-3, at Tabs 27-29.
Following comments by Petitioner and Defendant-Intervenor, the AEFTC, Commerce issued a supplemental questionnaire to Jangho. AD Prelim. I & D Mem. at 3. Rather than respond to the supplemental questionnaire, with Yuanda II pending before the CAFC and the Yuanda Scope Ruling recently issued, Jangho withdrew from "active participation as a mandatory respondent" while reserving "the right to participate in [the] review and file comments ... where it feels appropriate."...
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