Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States

• Decision Date: 30 January 2014
• Docket Number: Court No. 12–00420.,Slip Op. 14–10.
• Citation: 961 F.Supp.2d 1291
• Court: U.S. Court of International Trade
• Parties: SHENYANG YUANDA ALUMINUM INDUSTRY ENGINEERING CO., LTD. et al., Plaintiffs, v. UNITED STATES, Defendant, and Walters & Wolf, Bagatelos Architectural Glass Systems, Inc., and Architectural Glass & Aluminum Co., Defendant–Intervenors.

961 F.Supp.2d 1291

SHENYANG YUANDA ALUMINUM INDUSTRY ENGINEERING CO., LTD. et al., Plaintiffs,

v.UNITED STATES, Defendant,andWalters & Wolf, Bagatelos Architectural Glass Systems, Inc., and Architectural Glass & Aluminum Co., Defendant–Intervenors.

Slip Op. 14–10.

Court No. 12–00420.

United States Court of

International Trade.

Jan. 30, 2014.

John D. Greenwald and Thomas M. Beline, Cassidy Levy Kent (USA) LLP, of Washington, D.C., argued for plaintiffs. With them on the brief were James R. Cannon, Jr., Cassidy Levy Kent (USA) LLP, of Washington, D.C., and Kristen S. Smith and Mark R. Ludwikowski, Sandler, Travis & Rosenberg, P.A., of Washington, D.C.

Tara K. Hogan, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, D.C., argued for defendant. With her on the brief were Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Joanna V. Theiss, Attorney, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, D.C.

David M. Spooner, Squire Sanders (US) LLP, of Washington, D.C., argued for defendant-intervenors. With him on the brief was Christine J. Sohar Henter.

OPINION

EATON, Judge:

This matter is before the court on plaintiffs Shenyang Yuanda Aluminum Industry Engineering Co., Ltd.'s and Yuanda USA Corp.'s (collectively, “Yuanda”), Jangho Curtain Wall Americas Co., Ltd.'s, Overgaard Ltd.'s, and Bucher Glass, Inc.'s (collectively, “plaintiffs”) motion for judgment on the agency record pursuant to USCIT Rule 56.2. See Pls.' Rule 56.2 Mot. for J. on the Agency R. (ECF Dkt. No. 23) (“Pls.' Mot.”). By their motion, plaintiffs challenge the Department of Commerce's (“Commerce” or the “Department”) scope ruling made following the final determinations in Aluminum Extrusions from the People's Republic of China (“PRC”), 76 Fed.Reg. 30,650 (Dep't of Commerce May 26, 2011) (antidumping duty order) (“Antidumping Duty Order”), and Aluminum Extrusions From the PRC, 76 Fed.Reg. 30,653 (Dep't of Commerce May 26, 2011) (countervailing duty order) (“Countervailing Duty Order”) (collectively,the “Orders”).¹See Final Scope Ruling on Curtain Wall Units and Other Parts of a Curtain Wall System from the PRC, PD 37 at bar code 3108210–01 (Nov. 30, 2012), ECF Dkt. No. 56–37 (Sept. 18, 2013) (“Final Scope Ruling”). Plaintiffs seek a remand of the Final Scope Ruling for Commerce to reconsider its findings. See Pls.' Mot. 2.

Defendant United States opposes plaintiffs' motion and asks that Commerce's Final Scope Ruling be sustained. See Def.'s Opp'n to Pls.' Mot. for J. upon the Agency R. 1–2 (ECF Dkt. No. 41) (“Def.'s Br.”). Defendant-intervenors, Walters & Wolf, Bagatelos Architectural Glass Systems, Inc., and Architectural Glass & Aluminum Co., collectively referred to as the Curtain Wall Coalition (collectively, the “CWC” or the “CWC companies”), join in opposition to plaintiffs' motion. See Def.-Ints.' Resp. Br. in Opp'n to Pls.' Mot. for J. on the Agency R. 1 (ECF Dkt. No. 38) (“Def.-Ints.' Br.”). The court has jurisdiction pursuant to 28 U.S.C. §§ 1581(c), (i) (2006) and 19 U.S.C. §§ 1516a(a)(2)(A)(ii), (B)(vi) (2006).

Because curtain wall units are “parts for” a finished curtain wall, the court's primary holding is that curtain wall units and other parts of curtain wall systems fall within the scope of the Orders. SeeAntidumping Duty Order, 76 Fed.Reg. at 30,650. For this reason, and the others set out below, Commerce's Final Scope Ruling is sustained.

BACKGROUND

On March 31, 2010, 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 PRC. 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, as a result of the ITC's investigations, and following its own investigations and resulting determinations of sales at less than fair value and subsidized imports, the Department issued antidumping and countervailing duty orders on aluminum extrusions from the PRC. See Antidumping Duty Order, 76 Fed.Reg. 30,650;Countervailing Duty Order, 76 Fed.Reg. 30,653.

On October 11, 2012, defendant-intervenors, the CWC, submitted an amended scope request to Commerce, pursuant to 19 C.F.R. § 351.225(c) (2012). See Am. Scope Req. of the CWC, PD 24 at bar code 3100845–01 (Oct. 11, 2012), ECF Dkt. No. 56–24 (Sept. 18, 2013) (“Am. Scope Req.”). The scope request was limited in nature, and 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].” Am. Scope Req. at 1–2. Commerce commenced an initial scope investigation and determined that the language of the Orders and the description of the products in defendant-intervenors' petition were dispositive and that curtain wall units fell within the scope of the Orders. See Final Scope Ruling at 1. Accordingly, Commerce determined that it was “unnecessary to consider” the secondary criteria set forth in 19 C.F.R. § 351.225(k)(2). Final Scope Ruling at 8. Further, in its Final Scope Ruling, Commerce found that the CWC companies qualified as interested parties under section 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 at 2; see19 U.S.C. § 1677(9)(C) (2006) (“Tariff Act”).

STANDARD OF REVIEW

“The court shall hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i) (2006).

DISCUSSION

I. Legal Framework

Following receipt of an application from an interested party, Commerce's regulations direct it to undertake an investigation to determine whether a product falls within the scope of a final antidumping or countervailing duty order. 19 C.F.R. § 351.225(k). Initially, Commerce's investigation is limited to consideration of “[t]he descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary [of Commerce] (including prior scope determinations) and the [ITC].” Id. § 351.225(k)(1). The use of these descriptions is circumscribed, however, for “[w]hile the petition, factual findings, legal conclusions, and preliminary orders can aid in the analysis, they cannot substitute for the language of the order itself, which remains the ‘cornerstone’ in any scope determination.” Walgreen Co. of Deerfield, IL v. United States, 620 F.3d 1350, 1357 (Fed.Cir.2010) (quoting Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed.Cir.2002)). If Commerce's evaluation of these sources, and the scope language itself, are conclusive in determining whether the products at issue are subject to the scope of an order, Commerce is required to issue a final scope ruling. 19 C.F.R. § 351.225(d).

If these primary criteria are not dispositive and the scope of the order is ambiguous, Commerce is required to commence a formal scope inquiry in which it examines five secondary factors²: “(i) [t]he physical characteristics of the product; (ii) [t]he expectations of the ultimate purchasers; (iii) [t]he ultimate use of the product; (iv) [t]he channels of trade in which the product is sold; and (v) [t]he manner in which the product is advertised and displayed.” Id. § 351.225(k)(2). Where a scope determination is challenged, the court's objective is to determine whether the scope of the order “contain[s] language that specifically includes the subject merchandise or may be reasonably interpreted to include it.” Duferco Steel, 296 F.3d at 1089.

II. Plaintiffs' Motion for Judgment on the Agency RecordA. The Scope of the Orders

The relevant scope language at issue in the Orders reads as follows:

Subject aluminum extrusions may be described at the time of importation as parts for final finished products that are assembled after importation, including, but not limited to, window frames, door frames, solar panels, curtain walls, or furniture. Such parts that otherwise meet the definition of aluminum extrusions are included in the scope. The scope includes the aluminum extrusion components that are attached (e.g., by welding or fasteners) to form subassemblies, i.e., partially assembled merchandise unless imported as part of the finished goods ‘kit’ defined further below. The scope does not include the non-aluminum extrusion components of subassemblies or subject kits.

Antidumping Duty Order, 76 Fed.Reg. at 30,650–51. The Orders, however, contain two narrow exceptions that exclude from their scope

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. The scope also excludes finished goods containing aluminum extrusions that are entered unassembled in a “finished goods kit.”

Antidumping Duty Order, 76 Fed.Reg. at 30,651.

Plaintiffs' primary contention is that the scope language of the Orders explicitly excludes finished merchandise, and that curtain wall units that are filled in with glass and sealed at the time of importation, qualify as finished products. See Mem. of P. & A. in Supp. of Pls.' Mot. for J. on the Agency R. 17–18 (ECF Dkt. No. 23–1) (“Pls.' Br.”). Plaintiffs argue that “[t]he scope of the Orders covers aluminum extrusions, not curtain wall units,” and that “Commerce [mistakenly] determined that an aluminum frame fully and permanently in-filled with glass,...