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.
Court No. 12-00420
United States Court of International Trade
Jan. 30, 2014
Slip Op. 14-10.
Medline‘s alternative interpretation of the scope language is unpersuasive. Although Medline repeatedly refers to instances in which the Order mentions “bedroom” furniture, Medline does not identify any language in the Order limiting or defining the term “bedroom” in such a way as to unambiguously exclude the merchandise under review. See Pl.‘s Br. at 10-13. In fact, the order does not further define the term “bedroom.” See Scope Ruling at 2-4. Rather, it explicitly identifies the types of wooden furniture that are subject to the order, and those types that are excluded. Id. at 2-3. Accordingly, Medline cannot show that its end panel components are per se outside the scope of the Order simply in virtue of their use in hospital rooms.
Furthermore, contrary to Medline‘s insistence, the Scope Ruling is consistent with the plain terms of the Order. The scope language begins: “The product covered by the [Order] is wooden bedroom furniture.” Scope Ruling at 2. As mentioned, the scope language does not further define “bedroom,” but it does include a list of “subject merchandise” covered by the Order as well as a list of products excluded from the scope. Id. at 2-3. It specifically states that “[t]he subject merchandise includes ... (2) wooden headboards for beds[,] ... wooden footboards for beds, wooden side rails for beds, and wooden canopies for beds.” Id. at 2. The list of subject and non-subject merchandise indicates that Medline‘s wooden end panels—headboards and footboards—are of a type of merchandise the Order covers. Moreover, the language contradicts Medline‘s argument that Commerce was required to consider the use of the merchandise in its scope inquiry. Because the Order specifically identifies wooden headboards and footboards as subject merchandise, Commerce‘s interpretation of the scope language was reasonable. See ArcelorMittal, 694 F.3d at 84.
Given that Commerce reasonably concluded that the scope language was unambiguous, the court need not address Medline‘s claim that Commerce‘s (k)(1) analysis was unreasonable. See id.; Mid Continent Nail, 725 F.3d at 1302.
CONCLUSION
For the foregoing reasons, the Scope Ruling is supported by substantial evidence and otherwise in accordance with law. Judgment will be entered accordingly.
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.
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“),
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
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. See Antidumping Duty Order,
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. See Certain 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,
On October 11, 2012, defendant-intervenors, the CWC, submitted an amended scope request to Commerce, pursuant to
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.”
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.
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.”
II. PLAINTIFFS’ MOTION FOR JUDGMENT ON THE AGENCY RECORD
A. 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,
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,
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, sealed and attached to brackets and with holes drilled, ready for installation onto a building is an aluminum extrusion ‘part’ for a final finished product, i.e., a building façade assembled after importation.” Pls.’ Br. 17, 18. Plaintiffs insist, however, that “[f]airly read,” the scope excludes “curtain wall units that (1) are ‘fully and permanently’ filled in with glass and sealed and, therefore ready for installation, before importation, (2) can be installed upon the side of the building with no additional fabrication, and (3) become the ‘finished windows with glass’ of the buildings on which they are installed.” Pls.’ Br. 19-20.
Curtain walls are a relatively new innovation. The American Society of Testing and Materials, describes a curtain wall as ““a nonbearing exterior wall, secured to and supported by the structural members of the building.” Final Scope Ruling at 3 (quoting ASTM DICTIONARY OF ENGINEERING SCIENCE & TECHNOLOGY 674 (10th ed. 2005)); see also AMERICAN HERITAGE DICTIONARY OF THE ENGLISH LANGUAGE 446 (5th ed. 2011) (defining a curtain wall as “[a] nonbearing wall, often of glass and steel, fixed to the outside of a building and serving especially as cladding“); DICTIONARY OF ARCHITECTURE & CONSTRUCTION 289 (4th ed. 2006) (“In a tall building of steel-frame construction, an exterior wall that is non-load-bearing, having no structural function.“); DICTIONARY OF ENGINEERING 140 (2d ed. 2003) (“An external wall that is not load-bearing.“).
Commerce, in its Final Scope Ruling, described a curtain wall as “a building façade3 from the roof top to the ground floor that does not carry any building dead loads (i.e., the weight of all materials of construction incorporated into the building).” Final Scope Ruling at 3. Plaintiffs acknowledge that a curtain wall unit falls
Nevertheless, plaintiffs reason that the scope of the Orders only encompasses aluminum extrusions, and excludes final finished products. See Pls.’ Br. 17-18; Antidumping Duty Order,
Additionally, plaintiffs insist that Commerce should have considered whether plaintiffs’ curtain wall units, as imported, were entitled to the benefits of the “finished goods kit” exception in the Final Scope Ruling. Pls.’ Br. 21; Antidumping Duty Order,
Having taken plaintiffs’ arguments into consideration, the court finds that their interpretation of the Orders’ scope language lacks merit. The relevant language provides that “[s]ubject 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 ... curtain walls.” Antidumping Duty Order,
Further, plaintiffs’ attempts to liken curtain walls to finished windows are unconvincing. Although “finished windows with glass” are excluded from the scope of the Orders, the scope language distinguishes between finished windows and curtain walls by identifying them each individually. See Antidumping Duty Order,
Moreover, the specific exclusion of in-filled windows and door frames from the scope of the Orders, while parts for window frames and door frames are expressly included, demonstrates that the determinative factor for exclusion under the “finished merchandise” provision is not whether a product is in-filled with glass or vinyl. Rather, what is significant is whether the product itself, once in-filled, is a stand-alone completed and finished product. Thus, each enumerated item of finished merchandise in the Orders is a complete product upon entry. For example, a finished window needs nothing more to be a completed product, purchased individually for consumption. The same is true of a finished door or picture frame, other goods explicitly excluded from the Orders’ scope. A user can purchase one of these items and put it to use without buying additional identical merchandise.
On the other hand, multiple curtain wall units are designed to be attached together to form a completed curtain wall. An individual curtain wall unit, on its own, has no consumptive or practical use because mul-
In addition to claiming that the plain language of the Orders excludes curtain wall units from their scope, plaintiffs assert that their curtain wall units were not intended to fall within the scope of the Orders. As evidence for this conclusion, plaintiffs note that neither Commerce nor the ITC initiated a comprehensive investigation involving the curtain wall industry during their material injury dumping or subsidy investigations, nor did the ITC make an affirmative material injury finding specifically regarding curtain wall units. See Pls.’ Br. 15. Plaintiffs, however, are unable to point to, and the court is unaware of, any statute or regulation that makes an individual product‘s inclusion within the scope of an order contingent upon the initiation by Commerce or the ITC of a specific investigation regarding that product. See cf.
Furthermore, although curtain wall units were not the subject of an individualized investigation, it is clear that they were intended to be within the scope of the Orders from the investigation phase. The curtain wall language has been included in the scope of these investigations since the initial petition, seeking the imposition of antidumping and countervailing duties, was filed in March 2010. See Petition for the Imposition of Antidumping and Countervailing Duties Against Certain Aluminum Extrusions from the PRC (Volume I) at 4 (Mar. 31, 2010) (“Petition“) (“Aluminum extrusions may also be described as parts for products that are assembled or otherwise further processed after importation, including, but not limited to, ... curtain walls....“). Thereafter, the curtain wall language was included in Commerce‘s notices of initiation in April 2010 and the ITC‘s Preliminary Determinations in June 2010. See Aluminum Extrusions from the PRC,
Finally, early on in response to a product exclusion request made by plaintiff Yuanda in May of 2010, Commerce made a preliminary determination that the company‘s curtain wall units and component parts fell within the ambit of the Orders. See Preliminary Determinations Mem.: Comments on the Scope of the Investigations at 4, 11, PD 41 at bar code 3116929-01 (Oct. 27, 2010), ECF Dkt. No. 56-41 (Sept. 18, 2013) (“Investigations Mem.“) (“The language of the scope of these investigations as articulated in the Petition and the Notices of Initiation explicitly states that curtain walls assembled after importation are within the scope.“). All of the foregoing being the case, it is clear that “curtain wall units” are “parts for” curtain walls, and are reasonably included in the scope of the Orders by the scope‘s unambiguous language.
The Department contends that it did not consider whether plaintiffs’ curtain wall units qualified for the “finished goods kit” exception because “the CWC‘s Amended Scope Request d[id] not seek a scope ruling on complete curtain wall units, but rather ‘parts of curtain walls.‘” Final Scope Ruling at 9 (quoting Am. Scope Req. at 13). In its Amended Scope Request, the CWC sought a ruling confirming that “curtain wall units and other parts of curtain walls are explicitly covered by the scope of the [O]rders.” Am. Scope Req. at 13 (emphasis added). Thus, Commerce found the CWC‘s request to be restricted to a confirmation, based on the explicit language of the Orders, that curtain wall units were “parts for” curtain walls. Therefore, Commerce determined that the request did not ask for an examination of whether particular entries would qualify for the “finished goods kit” exception at the time that they crossed the border.
For defendant and defendant-intervenors, plaintiffs’ attempts to expand the request to include exceptions to the scope language simply extended too far beyond the confirmation that the CWC sought. Thus, the CWC asserts that the Department properly declined to consider the “finished goods kit” exception because it “properly indicated that the scope request d[id] not seek a scope ruling on a particular ‘curtain wall kit,’ but instead s[ought] a ruling on ‘parts of curtain walls.‘”5 Def.-
The court finds that Commerce properly confined its inquiries to the request made by the CWC and was not required to make the entry by entry examination that plaintiffs propose. That is, an inquiry as to whether a particular entry, or even product, would qualify for an exception to the scope language simply goes far beyond the CWC‘s request. The CWC‘s request was limited to seeking a determination as to whether curtain wall units were “parts for” curtain walls, based on the language of the Orders. This is clear from the use of the words “and other parts for” in the CWC‘s Amended Scope Request. Am. Scope Req. 11, 13 (emphasis added) (titling its Amended Scope Request as “Amended Scope Request of [the CWC] Regarding the Inclusion of Curtain Wall Units and Other Parts of Curtain Wall Systems in the Scope of the Orders.” (emphasis added)). The CWC sought a ruling on what products were covered by the Orders, not whether specific companies’ merchandise could be excluded from them.
If plaintiffs wished treatment for their specific products under the “finished goods kit” exception, their route was to file a petition of their own seeking the benefit of the exclusion with respect to their curtain wall units. Indeed, as represented by plaintiffs at oral argument, they appear to have already done so. See Oral Arg. Tr. 39:21-40:14 (“THE COURT [(addressing plaintiffs’ counsel):] Is it Commerce‘s position [that] if you want to find [out] whether plaintiffs’ products qualify for the finished goods kit exception,] you have to bring a [separate] scope ruling [of your own? PLAINTIFF‘S COUNSEL]: It seems to be that way and in fact in all candor to this Court we have brought a separate ruling that followed on with this because there is some confusion in the trade as to what this actually applies to....“). Thus, Commerce did not err in restricting itself to the issue presented by the CWC‘s request and leaving the issue presented by plaintiffs for another day.
B. Standing
Plaintiffs next contend that Commerce should have refrained from initiating its inquiry resulting in the Final Scope Ruling because defendant-intervenors’ product was not within the scope of the Orders, and therefore they lacked standing to submit a scope request. See Pls.’ Br. 13-17. The Tariff Act confers standing upon “interested part[ies],” including “manufactur-er[s], producer[s], or wholesaler[s] in the United States of a domestic like product.”
Commerce‘s regulations permit the submission of applications regarding “whether a particular product is within the scope of an order or a suspended investigation” by “[a]ny interested party.”
(C) a manufacturer, producer, or wholesaler in the United States of a domestic like product, ... (E) a trade or business association a majority of whose members manufacture, produce, or wholesale a domestic like product in the United States, [and] (F) an association, a majority of whose members is composed of interested parties ... with respect to a domestic like product.
The Tariff Act further defines a “domestic like product” as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to ... investigation.”
Since the court finds that defendant-intervenors’ products are indeed covered by the Orders, there is no merit to plaintiffs’ argument. That is, because defendant-intervenors produce and manufacture “aluminum extrusions for the production of curtain wall units and parts of curtain wall systems,” products that the court finds fall within the ambit of the Orders, defendant-intervenors are interested parties, and thus have standing. Company Certifications at 6-8, PD 24 at bar code 3100845-01 (Oct. 11, 2012), ECF Dkt. No. 56-24 (Sept. 18, 2013).
C. Commerce‘s Instructions to Customs
Plaintiffs’ final challenge is to Commerce‘s instructions to U.S. Customs and Border Protection (“Customs“) which stated that the Department has “found that curtain wall units and other parts and components of curtain wall systems are within the scope of the order[s]” and ordered Customs to “[c]ontinue to suspend liquidation of entries of aluminum extrusions from the PRC, including curtain wall units and other parts and components of curtain walls....” Antidumping Duty Liquidation Instructions Issued Jan. 3, 2013 at 184, 185 (Jan. 3, 2013), Tab 11, Public App. for Pls.’ Mem. of P. & A., at 1, 2 at bar code 3116056-01 (ECF Dkt. No. 27-1); Countervailing Duty Liquidation Instructions Issued Jan. 3, 2013 at 1, 2, PD 40 at bar code 3116057-01 (Jan. 3, 2013), ECF Dkt. No. 56-40 (Sept. 18, 2013) (“Countervailing Duty Liquidation Instructions Issued Jan. 3, 2013“) (collectively, “Final Scope Ruling Instructions to Customs“).6 Plaintiffs assert that (1) the instructions were inconsistent with Commerce‘s conclusions in its Final Scope Ruling, and “Commerce [consequently] instructed Customs to collect duties on a product which Commerce did not address in its [Final] Scope Ruling,” and (2) “the retroactive application of suspension of liquidation [was] in
First, there are no inconsistencies between the language of Commerce‘s instructions and its Final Scope Ruling. To the contrary, the language included within the instructions and that derived from the Final Scope Ruling are virtually identical. In its Amended Scope Request, the CWC asked Commerce to “issue a scope ruling confirming that curtain wall units and other parts of curtain wall systems [were] subject to the scope of the [Orders].” Am. Scope Req. at 1-2 (emphasis added). Commerce‘s Final Scope Ruling confirmed that “the products described in [the] CWC‘s Amended Scope Request are within the scope of the Orders.” Final Scope Ruling at 10. The Department‘s instructions to Customs state that “Commerce found that curtain wall units and other parts and components of curtain wall systems are within the scope of the order[s].” Countervailing Duty Liquidation Instructions Issued Jan. 3, 2013 at 1. As noted, this language has remained consistent since publication of the Notices of Initiation in April 2010. See Aluminum Extrusions from the PRC,
As to plaintiffs’ contention that Commerce‘s instructions to continue to suspend liquidation and collect cash deposits on entries of subject merchandise were ultra vires, the court is not convinced. See Pls.’ Br. 31-32. Plaintiffs’ argument that the Department‘s instructions were invalid is premised on AMS Associates, Inc. v. United States, where Commerce‘s instructions to Customs were found to be ultra vires. AMS Assocs., Inc. v. United States, 36 CIT —, —, 881 F.Supp.2d 1374, 1382 (2012), aff‘d, 737 F.3d 1338 (Fed.Cir.2013). In AMS, Commerce issued clarification instructions that interpreted the scope of an existing antidumping duty order to cover new products and then retroactively suspended liquidation of these products. See AMS, 36 CIT at —, 881 F.Supp.2d at 1377. AMS is inapplicable to this case because, here, the instructions added no new products to the scope, and because liquidation of plaintiffs’ curtain wall units has been suspended since publication of the preliminary determinations. In these proceedings, the Final Scope Ruling merely confirmed what had previously been the case.
Commerce does not have to initiate a formal scope proceeding under
19 C.F.R. § 351.225 when it wishes to issue a ruling that does not clarify the scope of an unambiguous original order. Commerce must only follow the procedures outlined in § 351.225[(k)(2) (the Diversified Products criteria)] when it wishes to clarify an order that is unclear. To hold otherwise would permit importers to potentially avoid paying antidumping duties on past imports by asserting unmeritorious claims that their products fall outside the scope of the original order. Importers cannot circumvent antidumping orders by contending that their products are outside the scope of existing orders when such orders are clear as to their scope. Our precedent evinces this understanding. We have not required Commerce to initiate a formal scope inquiry when the meaning and scope of an existing antidumping order is clear.
AMS Assocs., Inc. v. United States, 737 F.3d 1338, 1344 (Fed.Cir.2013) (citing Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1378-79 (Fed.Cir. 2003)). AMS involved a situation where “Commerce [was found to have] erred in failing to conduct a formal scope inquiry ... because the scope of the original antidumping order was unclear.” AMS, 737 F.3d at 1344. Here, the scope language of the antidumping and countervailing duty orders on aluminum extrusions from the PRC presents no similar problems of ambiguity with respect to its coverage of plaintiffs’ curtain wall units. Therefore, the holding in AMS does not affect the outcome of the present case.
In addition, liquidation of parts for curtain walls has been suspended since publication of the preliminary determinations for the countervailing duty order on September 7, 2010, and November 12, 2010 for the antidumping duty order.7 See
CONCLUSION
Accordingly, because parts for curtain walls are specifically and unambiguously provided for in the Orders, the court finds that Commerce reasonably determined that curtain wall units are included in the scope of the Orders. Additionally, because that conclusion was reasonable, the court also finds that the primary criteria set forth in
Based on the foregoing, it is hereby
ORDERED that the Department of Commerce‘s Final Scope Ruling is SUSTAINED.
Notes
Antidumping Duty Order,A finished goods kit is understood to mean 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. An imported product will not be considered a “finished goods kit” and therefore excluded from the scope of the investigation merely by including fasteners such as screws, bolts, etc. in the packaging with an aluminum extrusion product.
In the antidumping duty investigation, the preliminary determination was published on November 12, 2010, and the four-month period was extended. Antidumping Duty Order,
In the countervailing duty investigation, the Department published its preliminary determination on September 7, 2010, and instructed Customs to suspend liquidation of all entries of subject merchandise entered or withdrawn from warehouse, for consumption, on or after that date. Countervailing Duty Order,