Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, Walters & Wolf, Bagatelos Architectural Glass Sys., Inc.

• Citation: 776 F.3d 1351
• Decision Date: 21 January 2015
• Docket Number: Nos. 2014–1386,2014–1388.,2014–1387,s. 2014–1386
• Parties: SHENYANG YUANDA ALUMINUM INDUSTRY ENGINEERING CO., LTD., Overgaard Limited, Jangho Curtain Wall Americas Co. Ltd., and Yuanda USA, Plaintiffs–Appellants, and Bucher Glass, Inc., Plaintiff, v. UNITED STATES, Walters & Wolf, Bagatelos Architectural Glass Systems, Inc., and Architectural Glass & Aluminum Company, Defendants–Appellees.
• Court: United States Courts of Appeals. United States Court of Appeals for the Federal Circuit

776 F.3d 1351

SHENYANG YUANDA ALUMINUM INDUSTRY ENGINEERING CO., LTD., Overgaard Limited, Jangho Curtain Wall Americas Co. Ltd., and Yuanda USA, Plaintiffs–Appellants,

and

Bucher Glass, Inc., Plaintiff,

v.UNITED STATES, Walters & Wolf, Bagatelos Architectural Glass Systems, Inc., and Architectural Glass & Aluminum Company, Defendants–Appellees.

Nos. 2014–1386, 2014–1387, 2014–1388.

United States Court of Appeals,

Federal Circuit.

Jan. 21, 2015.

Thomas M. Beline, Cassidy Levy Kent (USA) LLP, of Washington, DC, argued for plaintiffs-appellants. With him on the brief were James R. Cannon, Jr. and Thomas M. Beline. Of counsel on the brief were Kristen Smith and Mark Ludwikowski, Sandler, Travis & Rosenberg, P.A., of Washington, DC.

Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Scott McBride, Office of the Chief Counsel for Trade Enforcement and Compliance, United States Department of Commerce, of Washington, DC.

David M. Spooner, Barnes & Thornburg LLP, of Washington, DC, argued for defendant-appellee Walters & Wolf. With him on the brief was Christine J. Sohar Henter.

Before PROST, Chief Judge, PLAGER and WALLACH, Circuit Judges.

WALLACH, Circuit Judge.

Shenyang Yuanda Aluminum Industry Engineering Co., Ltd., Jangho Curtain Wall Americas, Co., Ltd. (“Jangho”), Overgaard Limited, and Bucher Glass, Inc. (collectively, “Yuanda”) appeal the January 30, 2014, judgment of the United States Court of International Trade (“CIT”) affirming the Department of Commerce's (“Commerce”) determination that curtain wall units are within the scope of the antidumping and countervailing duty orders on aluminum extrusions from the People's Republic of China. Because the CIT's decision is supported by substantial evidence and is in accordance with law, this court affirms.

Background

The United States International Trade Commission (“ITC”) initiated an investigation into whether a domestic industry was materially injured or threatened with material injury by reason of imports of certain aluminum extrusions from the People's Republic of China on March 31, 2010. SeeCertain Aluminum Extrusions from China, USITC Pub. 4153, Inv. Nos. 701–TA–475, 731–TA–1177, at 1 (June 2010) (Preliminary) (“ITC's Preliminary Determinations”). On May 26, 2011, Commerce issued antidumping and countervailing duty orders on aluminum extrusions from the People's Republic of China. See Aluminum 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 “Orders”).

In October 2012, Defendants–Appellees, Walters & Wolf, Bagatelos Architectural Glass Systems, Inc., and Architectural Glass & Aluminum Co., collectively referred to as the Curtain Wall Coalition (the “CWC companies”), submitted an amended scope request to Commerce pursuant to 19 C.F.R. § 351.225(c) (2012). The scope request asked Commerce to “issue a scope ruling confirming that curtain wall units and other parts of curtain wall systems are subject to the scope of the [Orders].” J.A. 4. In the scope request, the CWC companies explained that curtain walls are comprised of numerous curtain wall components, which can be categorized into three groups:

(i) an aluminum extruded frame, which includes anchors, overlays, and other devices that attach the unit to the cement structure and adjoining units; (ii) infill material; and (iii) hardware to attach the curtain wall parts to the building, as well as to adjoining units, including fasteners, elastomeric lineal gaskets, anchor assemblies and components, clips, screws, nuts and bolts, steel embeds, splices to adjoin units, sealants used between the frames, infill material, and aluminum extrusion trim to physically attach the suspending curtain wall to the building structure.

Appellee's Br. 10 (citing J.A. 986–93).

Yuanda challenged the standing of the CWC companies, arguing that the CWC companies had not demonstrated they produced aluminum extrusions. Commerce found the CWC companies qualified as interested parties under § 771(9)(C) of the Tariff Act of 1930, as amended, “as manufacturers, producers, or wholesalers of a domestic like product, and thus ha[d] standing to bring the Amended Scope Request.” Final Scope Ruling on Curtain Wall Units and Other Parts of a Curtain Wall System from the PRC (Dep't of Commerce, Nov. 30, 2012), ECF Dkt. No. 56–37 (“Final Scope Ruling”) (J.A. 117–26); see19 U.S.C. § 1677(9)(C) (2006).

After resolving standing, Commerce initiated a scope investigation of the Orders and determined Yuanda's curtain wall units were within the scope. Since it found the Order language dispositive, Commerce determined it was “unnecessary to consider” the secondary criteria set forth in 19 C.F.R. § 351.225(k)(2). Final Scope Ruling at 8. The CIT affirmed Commerce'sdetermination and found Commerce correctly declined to consider the secondary (k)(2) factors. Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, 961 F.Supp.2d 1291 (Ct. Int'l Trade 2014); see also19 C.F.R. § 351.225(k)(1), (2).

Yuanda timely appeals. This court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5) (2012).

Discussion

This court reviews Commerce's final determinations by reapplying the same standard used by the CIT; that is, the question is whether Commerce's determination is supported by substantial evidence and is otherwise in accordance with law. Global Commodity Grp. LLC v. United States, 709 F.3d 1134, 1138 (Fed.Cir.2013).

This court “grant[s] significant deference to Commerce's own interpretation of [scope] orders.” Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1094–95 (Fed.Cir.2002) (citing Ericsson GE Mobile Commc'ns, Inc. v. United States, 60 F.3d 778, 782 (Fed.Cir.1995)). “This deference is appropriate because the meaning and scope of ... orders are issues ‘particularly within the expertise’ and ‘special competence’ of Commerce.” King Supply Co. v. United States, 674 F.3d 1343, 1348 (Fed.Cir.2012) (quoting Sandvik Steel Co. v. United States, 164 F.3d 596, 600 (Fed.Cir.1998)). A party challenging a scope ruling by Commerce under the substantial evidence standard “has chosen a course with a high barrier to reversal.” Id. (internal quotation marks and citations omitted).

I. Legal Framework

There is no specific statutory provision governing the interpretation of the scope of antidumping or countervailing orders. However, Commerce's regulations permit an importer to “request a scope ruling as to whether a particular product is covered by an ... order.” Sango Int'l L.P. v. United States, 484 F.3d 1371, 1376 (Fed.Cir.2007) (citing 19 C.F.R. § 351.225(c)(1)). The language of the order is the “cornerstone” of a scope analysis and “a predicate for the interpretive process.” Duferco Steel, 296 F.3d at 1097.

The regulations require Commerce, when determining the scope of an order, to engage in a two-step process. First, Commerce must consider the scope language contained in the order itself, 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. Duferco Steel, 296 F.3d at 1097; 19 C.F.R. § 351.225(k)(1). The petition and preliminary determinations of Commerce and the ITC involved in the underlying duty investigations “may provide valuable guidance as to the interpretation of the final order.” Id. If Commerce concludes the product is, or is not, included within the scope of the order, Commerce issues a final scope ruling. See Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1071 (Fed.Cir.2001). If a subsection (k)(1) analysis is not dispositive, then Commerce proceeds to an analysis of the Diversified Products Criteria under subsection (k)(2) of its regulations. These criteria are: (1) physical characteristics, (2) expectations of ultimate purchasers, (3) ultimate use, (4) channels of trade in which the product is sold, and (5) manner of advertising and display. 19 C.F.R. § 351.225(k)(2).

II. Analysis

A. The CWC Companies Had Standing

As a threshold matter, Yuanda argues the CWC companies “do not produce aluminum extrusions, but instead produce ... unitized curtain wall units, made by permanently sealing glass in a frame made from purchased aluminum extrusions” and therefore they lacked standing to file the scope ruling request. Appellants' Br. 15; see also id. at 23 (The ITC found injury to producers of aluminum extrusions but “did not find material injury to purchasers of aluminum extrusions that use them to produce different products.”). Under 19 C.F.R. § 351.225(c), only an interested party may apply for a scope ruling. In relevant part, the antidumping and countervailing duty statutes define an interested party to include a “manufacturer, producer, or wholesaler in the United States of a domestic like product,” 19 U.S.C. § 1677(9)(C), as well as “a trade or business association a majority of whose members manufacture, produce, or wholesale a domestic like product in the United States,” id. § 1677(9)(E).

Relying on certifications of each member that “it produces, manufactures and fabricates aluminum extrusions for the production of curtain wall units and parts of curtain wall systems in the United States,” J.A. 975–77, and that curtain wall units are expressly covered by the scope of the orders, Commerce determined each CWC company is a manufacturer, producer, or wholesaler in the United States of a domestic like product. Final Scope Ruling at 2 (citing 19 U.S.C. § 1677(9)(C)). In response to Yuanda's standing arguments, Commerce...