1:12-cv-00424
Ct. Intl. TradeJan 30, 2014Background
- Commerce issued antidumping and countervailing duty Orders on aluminum extrusions from the PRC in May 2011 following investigations by Commerce and the ITC.
- The Curtain Wall Coalition (CWC) requested a scope ruling asking Commerce to confirm that curtain wall units and other curtain wall parts are within the Orders.
- Commerce issued a Final Scope Ruling finding curtain wall units and other curtain wall parts are within the Orders based on the Orders’ scope language and declined to apply the secondary (k)(2) factors.
- Plaintiffs (manufacturers/importers of curtain wall units) challenged the ruling, arguing that in-filled, sealed curtain wall units are finished goods excluded by the Orders and that Commerce should have considered the “finished goods kit” exception; they also challenged CWC’s standing and Commerce’s instructions to CBP to suspend liquidation.
- The Court reviewed the scope language, prior notices, and Commerce’s preliminary determinations and upheld Commerce’s ruling that curtain wall units are "parts for" curtain walls and thus within the Orders; Commerce appropriately limited its inquiry to the CWC request and properly instructed CBP to continue suspension of liquidation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether curtain wall units are excluded as "finished merchandise" | Plaintiffs: in-filled, sealed curtain wall units function as finished windows and thus fall within the Orders’ "finished merchandise" exclusion | Commerce: scope language expressly includes "parts for" curtain walls; curtain wall units are subassemblies/parts, not standalone finished goods | Held: curtain wall units are "parts for" curtain walls and within the Orders; finished-merchandise exclusion does not cover curtain wall units |
| Whether Commerce should have applied the "finished goods kit" exception | Plaintiffs: Commerce should have examined whether specific entries qualify as finished goods kits and excluded them | Commerce: CWC’s request sought only confirmation that curtain wall parts are within scope; Commerce need not address entry-by-entry kit exclusions in that proceeding | Held: Commerce properly confined its ruling to the CWC’s request; plaintiffs may pursue separate kit-specific scope requests |
| Standing of defendant-intervenors to file scope request | Plaintiffs: CWC lacks standing because their products are not subject to the Orders | Def.-Ints./Commerce: CWC manufactures domestic like products (aluminum extrusions for curtain walls), so they are "interested parties" | Held: Because curtain wall units are within the Orders, CWC has statutory standing as producers of domestic like product |
| Validity and retroactivity of Commerce’s liquidation instructions to CBP | Plaintiffs: Instructions were inconsistent with the Final Scope Ruling and unlawfully retroactive suspension of liquidation | Commerce: Instructions merely confirmed existing scope language and continued suspension that had applied since preliminary determinations | Held: Instructions were consistent and lawful; suspension of liquidation properly continued given prior preliminary determinations |
Key Cases Cited
- Walgreen Co. v. United States, 620 F.3d 1350 (Fed. Cir.) (scope analysis must center on order language; petition/record can aid but not supplant order language)
- Duferco Steel, Inc. v. United States, 296 F.3d 1087 (Fed. Cir.) (scope inquiry asks whether order language specifically includes or may reasonably be interpreted to include the merchandise)
- Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369 (Fed. Cir.) (Commerce need not conduct formal scope inquiry when order language is clear)