                           Slip Op. 16 -

              UNITED STATES COURT OF INTERNATIONAL TRADE

    SHENYANG YUANDA ALUMINUM
    INDUSTRY ENGINEERING CO.,          Before: Donald C. Pogue,
                                               Senior Judge
            Plaintiff,
                                       Consol. Court No. 14-001061
                     v.

    UNITED STATES,

            Defendant.



                          OPINION and ORDER

[Redetermination remanded for further consideration in
accordance with this opinion.]

                                          Dated: February 9, 2016

          James R. Cannon, Jr., John D. Greenwald, and Thomas M.
Beline, Cassidy Levy Kent, LLP, of Washington, DC, for Plaintiff
Yuanda.

          Kristen Smith, Arthur K. Purcell, and Michelle L.
Mejia, Sandler, Travis, & Rosenberg, P.A., of Washington, DC,
for Consolidated Plaintiff Jangho.

          William E. Perry, Emily Lawson, and Kate Kennedy,
Dorsey & Whitney LLP, of Seattle, WA, for Consolidated Plaintiff
Permasteelisa.

          Douglas G. Edelschick, Trial Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
of Washington, DC, for the Defendant. With him on the brief were
Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Jeanne E. Davidson, Director, and Reginald T. Blades, Jr.,
Assistant Director. Of counsel was Scott D. McBride, Senior


1 This action is consolidated with court numbers 14-00107 and
14-00108. Order, July 16, 2014, ECF No. 28.
Consol. Court No. 14-00106                                    Page 2


Attorney, Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, DC.

          David M. Spooner and Christine J. Sohar Henter,
Barnes & Thornburg, LLP, of Washington, DC, for Defendant-
Intervenor, the Curtain Wall Coalition.

            Pogue, Senior Judge: In this action, Plaintiffs

Shenyang Yuanda Aluminum Industry Engineering Co., Ltd. and

Yuanda USA Corporation (collectively “Yuanda”); Jango Curtain

Wall Americas Co. (“Jangho”); and Permasteelisa North America

Corp., Permasteelisa South China Factory, and Permasteelisa Hong

Kong Ltd. (collectively “Permasteelisa”), challenge the

decision,2 made by Defendant, the U.S. Department of Commerce

(“Commerce”), that Yuanda’s unitized curtain wall, i.e., a

complete curtain wall, unitized and imported in phases pursuant

to a sales contract, is within the scope of the antidumping and

countervailing duty orders (the “AD&CVD Orders” or the “Orders”)

on aluminum extrusions from the People’s Republic of China

(“PRC”).3



2 Compl., ECF No. 9 (Yuanda’s complaint); Compl., Ct. No. 14-

00107, ECF No. 8 (Jangho’s complaint); Compl., Ct. No. 14-00108,
ECF No. 8 (Permasteelisa’s complaint).
3 Aluminum Extrusions from the [PRC], A-570-967 & C-570-968
(Dep’t of Commerce March 27, 2014) (final scope ruling on
curtain wall units that are produced and imported pursuant to a
contract to supply curtain wall), ECF No. 34-1 (“Yuanda Scope
Ruling”); Final Results of Redetermination Pursuant to Ct.
Remand, ECF No. 68-1 (“Redetermination”); see Aluminum
Extrusions from the [PRC], 76 Fed. Reg. 30,650 (Dep’t Commerce
May 26, 2011) (antidumping duty order) (“AD Order”); Aluminum
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                       Page 3


                           Currently before the court are Plaintiffs’ renewed

motions for judgment on the agency record pursuant to USCIT Rule

56.2, arguing that Commerce’s affirmative scope ruling is not in

accordance with law, unsupported by substantial evidence, and

arbitrary and capricious.4                                                 Defendant opposes Plaintiffs’

motions.5                    Defendant-Intervenors, Walters & Wolf, Architectural

Glass & Aluminum Company, and Bagatelos Architectural Glass

Systems, Inc. (collectively the “Curtain Wall Coalition” or

“CWC”) join in opposition to the motions.6

                           The court has jurisdiction pursuant to

§ 516A(a)(2)(B)(vi) of the Tariff Act of 1930, as amended,



Extrusions from the [PRC], 76 Fed. Reg. 30,653 (Dep’t Commerce
May 26, 2011) (countervailing duty order) (“CVD Order”).
     Yuanda USA Corp is an importer and Shenyang Yuanda Aluminum
Industry Engineering Co., Ltd. is a foreign producer and
exporter of curtain wall units. Jangho is a foreign producer of
subject merchandise. Permasteelisa North America Corp. is an
importer and Permasteelisa Hong Kong Ltd. is a foreign producer
of subject merchandise. Yuanda Scope Ruling, ECF No. 34-1, at 1-
2.
4 Mem. of P. & A. in Supp. of Yuanda’s Am. Mot. for J. on the
Agency R., ECF Nos. 79 (conf. ver.) & 80 (pub. ver.) (“Yuanda’s
Br.”); Am. Mem. in Supp. of Pl. Jangho’s Mot. for J. on the
Agency R., ECF No. 78 (“Jangho Br.”); Mem. of P. & A. in Supp.
of [Permasteelisa’s] Rule 56.2 Mot. for J. on the Agency R., ECF
No. 39 (as amended by Notice of Withdrawal, ECF No. 84)
(“Permasteelisa’s Br.”).
5 Def.’s Resp. to Pl.’s & Consol. Pl.’s Rule 56.2 Mots. for J. on
the Agency R., ECF No. 85 (“Def.’s Resp.”).
6 Def.-Intervenors’ Opp’n to Pls.’ Mots. & Am. Brs. For J. on the
Agency R., ECF No. 87 (“CWC’s Resp.”).
Consol. Court No. 14-00106                                    Page 4


19 U.S.C. § 1516a(a)(2)(B)(vi) and 28 U.S.C. § 1581(c) (2012).7

           Because Commerce’s scope ruling redefines key terms

contrary to the plain language of the AD&CVD Orders, it is not

in accordance with law; because it does not reasonably consider

the characteristics of Plaintiffs’ merchandise and the evidence

that weighs against the agency’s determination, it is

unsupported by substantial evidence; because it offers

insufficient reasons for treating similar products differently,

it is arbitrary and capricious.   Accordingly, the court remands

to Commerce for further consideration in accordance with this

opinion.



                             BACKGROUND

I.   The Antidumping and Countervailing Duty Orders on Aluminum
     Extrusions
           The issues presented here arise from Commerce’s AD&CVD

Orders on aluminum extrusions from the PRC.8    The AD&CVD Orders

followed a March 31, 2010, petition by the Aluminum Extrusions

Fair Trade Committee and the United Steel, Paper and Forestry,

Rubber, Manufacturing, Energy, Allied Industrial and Service

Workers International Union (collectively, “Petitioners”),


7    All further citations to the Tariff Act of 1930, as amended,
are to Title 19 of the U. S. Code, 2012 edition.
8 See AD Order, 76 Fed. Reg. 30,650; CVD Order, 76 Fed. Reg.
30,653.
Consol. Court No. 14-00106                                    Page 5


alleging that “[certain] aluminum extrusions imported from the

[PRC] are being subsidized and sold at less than normal value.”9

Commerce made final affirmative determinations of subsidization

and sales at less than fair value10; the International Trade

Commission similarly made a final affirmative determination of

material injury to U.S. industry.11    Commerce then issued the

AD&CVD Orders.12

    II. The Language of the Order
             The AD&CVD Orders on aluminum extrusions were “written

in general terms,”13 to cover “aluminum extrusions,” which are

defined as “shapes and forms,14 produced by an extrusion process,



9    Aluminum Extrusions from the [PRC], A-570-967 & C-570-968
(Dep’t of Commerce March 31, 2010) (petition for the imposition
of antidumping and countervailing duties) at 1, reproduced in
Pub. App. to [Yuanda’s Br.], ECF No. 83-3 at Tab 10
(“Petition”).
10Aluminum Extrusions from the [PRC], 76 Fed. Reg. 18,524 (Dep’t
Commerce Apr. 4, 2011) (final determination of sales at less
than fair value) and accompanying Issues & Decision Mem., A-570-
967, POI July 1, 2009 – Dec. 31, 2009 (Apr. 4, 2011) (“Final AD
I&D Mem.”); Aluminum Extrusions from the [PRC], 76 Fed. Reg.
18,521 (Dep’t Commerce Apr. 4, 2011) (final affirmative
countervailing duty determination).
11Certain Aluminum Extrusions from China, USITC Pub. 4229, Inv.
Nos. 701-TA-475 & 731-TA-1177 (May 2011) (“ITC Final
Determination”).
12AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at
30,653.
13   See 19 C.F.R. § 351.225(a).
14Aluminum extrusions “are produced and imported in a wide
variety of shapes and forms, including, but not limited to,
hollow profiles, other solid profiles, pipes, tubes, bars, and
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                       Page 6


made from [certain] aluminum alloys.”15                                                                       They may have a variety

of finishes, “both coatings and surface treatments,”16 and may be

“fabricated, i.e., prepared for assembly.”17

                           Aluminum extrusions “described at the time of

importation as parts for final finished products” such as

“window frames, door frames, solar panels, curtain walls, or

furniture,” to be “assembled after importation,” are subject to

the order if such parts “otherwise meet the definition of

aluminum extrusions,”18 that is, they are shapes or forms made

from the covered aluminum alloys and made by an extrusion





rods.” AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg.
at 30,654. Drawn aluminum (aluminum extrusions that are “drawn
subsequent to extrusion”) also fall within the AD&CVD Orders.
Id.
15AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at
30,653.
16See AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg.
at 30,654 (“The types of coatings and treatments applied to
subject aluminum extrusions include, but are not limited to,
extrusions that are mill finished (i.e., without any coating or
further finishing), brushed, buffed, polished, anodized
(including bright-dip anodized), liquid painted, or powder
coated.”).
17AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at
30,654; see id. (“Such operations would include, but are not
limited to, extrusions that are cut-to-length, machined,
drilled, punched, notched, bent, stretched, knurled, swedged,
mitered, chamfered, threaded, and spun.”).
18AD Order, 76 Fed. Reg. at 30,650-51; CVD Order, 76 Fed. Reg.
at 30,654,
Consol. Court No. 14-00106                                     Page 7


process.19    The AD&CVD Orders also cover “aluminum extrusion

components that are attached (e.g., by welding or fasteners) to

form subassemblies, i.e., partially assembled merchandise.”20

             The AD&CVD Orders exclude “finished merchandise

containing aluminum extrusions as parts” so long as such

merchandise is “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.”21    The AD&CVD Orders also exclude

“finished goods containing aluminum extrusions that are entered

unassembled in a ‘finished goods kit.’”22    A finished goods kit

is “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





19    AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at
30,653.
20AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at
30,654.
21Id. Aluminum extrusion “identified with reference to their
end use, such as fence posts, electrical conduits, door
thresholds, carpet trim, or [certain] heat sinks . . . are
subject merchandise if they otherwise meet the scope definition,
regardless of whether they are ready for use at the time of
importation.” Id.
22   Id.
Consol. Court No. 14-00106                                            Page 8


is’ into a finished product.”23       Subassemblies may be excluded as

well, provided that they enter the United States as part of or

as “finished goods” or “finished goods kits.”24

III. Interpreting the Scope of an Order
            Where, as here, there is a question as to “whether a

particular product is included within the scope of an

antidumping or countervailing duty order,” Commerce follows an

interpretive framework, provided in the agency’s regulations, to

determine the answer.25      First, relying on the description of the

product contained in the scope-ruling request, Commerce looks to

the plain language of the underlying order.26          If the terms of

the order are dispositive, then the order governs.27


23 Id.              However, “[a]n 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.” Id.
24Id.; see Aluminum Extrusions from the [PRC], A-570-967 & C-
570-968 (Dep’t of Commerce Sept. 24, 2012) (preliminary side
mount valve controls scope Ruling) at 7 (“SMVC Scope Ruling”)
(adopted unchanged in Aluminum Extrusions from the [PRC], A-570-
967 & C-570-968 (Dep’t of Commerce Oct. 26, 2012) (final side
mount valve controls scope ruling)), reproduced in Def.’s App.
Accompanying [Def.’s Resp.], ECF No. 86 at Tabs 3 & 4.
25   19 C.F.R. § 351.225(a).
26Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097
(Fed. Cir. 2002).
27Tak Fat Trading Co. v. United States, 396 F.3d 1378, 1383
(Fed. Cir. 2005) (“[A] predicate for the interpretive process is
language in the order that is subject to interpretation.”
(quoting Duferco Steel, 296 F.3d at 1097); ArcelorMittal
Stainless Belgium N.V. v. United States, 694 F.3d 82, 84 (Fed.
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                       Page 9


                           Second, if the order is ambiguous, Commerce

“consider[s] the regulatory history, as contained in the so-

called ‘(k)(1) materials’” — named for the regulatory subsection

in which they appear.28                                           Specifically, Commerce considers “[t]he

descriptions of the merchandise contained in the petition, the

initial investigation, and the determinations of [Commerce]

(including prior scope determinations) and the [International

Trade] Commission.”29                                        If the (k)(1) materials disambiguate the

language of the order, then Commerce will issue its scope

ruling.30

                           Third, if the (k)(1) materials “are not dispositive,”

Commerce will initiate a scope inquiry.31                                                                          Specifically, Commerce

“will further consider: (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

Cir. 2012) (“If Commerce determines that the language at issue
is not ambiguous, it states what it understands to be the plain
meaning of the language, and the proceedings terminate. On the
other hand, if Commerce finds that the scope language is
ambiguous, it then looks to two sets of factors spelled out in
[19 C.F.R. § 351.225(k)] to determine the intended scope of the
order.”).
28Mid Continent Nail Corp. v. United States, 725 F.3d 1295, 1302
(Fed. Cir. 2013).
29    19 C.F.R. § 351.225(k)(1).
30    Id. at § 351.225(d).
31Id. at §§ 351.225(e), (k)(2); see also Walgreen Co. of
Deerfield, IL v. United States, 620 F.3d 1350, 1352 (Fed. Cir.
2010).
Consol. Court No. 14-00106                                               Page 10


trade in which the product is sold; and (v) [t]he manner in

which the product is advertised and displayed.”32

                   Commerce’s interpretations of its own scope rulings

are given “significant deference,”33 however, “Commerce cannot

‘interpret’ an antidumping order so as to change the scope of

that order, nor can Commerce interpret an order in a manner

contrary to its terms.”34

IV.      The Scope Ruling on Curtain Wall Units and Other Parts of a
         Curtain Wall System from the PRC
                   The Yuanda Scope Ruling challenged in this case is the

second scope ruling Commerce has issued relevant to unitized

curtain wall.35                 Prior to the Yuanda Scope Ruling, on October 11,

2012, Defendant-Intervenors, the CWC, applied for a ruling from

Commerce, pursuant 19 C.F.R. § 351.225, to confirm that “parts

of curtain wall[s],”36 defined as “curtain wall sections, falling


32    19 C.F.R. § 351.225(k)(2).
33   Duferco Steel, 296 F.3d at 1094-95.
34Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 1072
(Fed. Cir. 2001).
35Commerce has also issued a third scope ruling on curtain wall
units with non-PRC aluminum extrusions. See Aluminum Extrusions
from the [PRC], A-570-967 & C-570-968 (Dep’t of Commerce March
14, 2013) (final scope ruling on Tesla curtain walls with non-
PRC extrusions). However, this determination is not relevant
here because, unlike there, the country of origin of Yuanda’s
aluminum extrusions is not at issue.
36Aluminum Extrusions from the [PRC], A-570-967 & C-570-968
(Dep’t of Commerce Oct. 11, 2012) (amended scope request
regarding curtain wall units and other parts of a curtain wall
system) at 1-2, reproduced in Pub. App. to [Yuanda’s Br.], ECF
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 11


short of the final finished curtain wall that envelopes an

entire building structure,” including, but not limited to

individual curtain wall units (i.e., “unitized . . . modules

that are designed to be interlocked with each other, like pieces

of a puzzle”).37                               Both Yuanda and Jangho submitted comments in

opposition.38

                           In the CWC Scope Ruling, Commerce determined, based on

the description of the product in CWC’s application,39 that the


No. 83-1, at Tab 2 at Ex. B (“CWC Am. Scope Request”).
Originally, the Northern California Glass Management Association
(“NCGMA”) submitted the scope ruling request for “curtain wall
units and parts for curtain walls.” Aluminum Extrusions from the
[PRC], A-570-967 & C-570-968 (Dep’t of Commerce Oct. 11, 2012)
(letter re amended scope request regarding curtain wall units
and other parts of a curtain wall system) at 2, reproduced in
Pub. App. to [Yuanda’s Br.], ECF No. 83-1, at Tab 2 at Ex. B.
However, because Commerce found that the “NCGMA [did] not
adequately demonstrate[] how it qualifies as an interested party
under [19 U.S.C. § 1677(9)(E)],” three members of the NCGMA,
Walters & Wolf, Architectural Glass & Aluminum Company, and
Bagatelos Architectural Glass Systems, Inc., filed an amended
scope request on NCGMA’s behalf, as the Curtain Wall Coalition.
Id. at 3. Commerce subsequently found that the CWC had standing
as an interested party. Aluminum Extrusions from the [PRC], A-
570-967 & C-570-968 (Dep’t of Commerce Nov. 30, 2012) (final
scope ruling on curtain wall units and other parts of a curtain
wall system) (“CWC Scope Ruling”) at 9-10.
37    CWC Am. Scope Request, ECF No. 83-1 at Tab 2 at Ex 2, at 8-9.
38CWC Scope Ruling, supra note 36, at 2. Overgaard Ltd, a
foreign producer of curtain wall units, and Bucher Glass Inc.,
an importer, also submitted comments in support of Yuanda’s
opposition. Id.
39The CWC defined curtain wall system as “an aluminum extrusion
framed non-weight bearing exterior wall, secured to and
supported by the structural frame of a building,” which
functions as the “outer cover of typically multi-level buildings
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 12


language of the AD&CVD Orders and the “descriptions of the

merchandise in the investigation” are “dispositive”: curtain

wall parts, as defined in the CWC’s Scope Request, fell within

the scope of the Orders.40                                                While Yuanda and Jangho argued that

“a complete curtain wall unit” could be excluded from the scope

of the AD&CVD Orders under the “finished goods kit” exclusion,

Commerce declined to rule on the application of this exclusion

because the CWC’s scope request “[did] not seek a scope ruling

on complete curtain walls units, but rather ‘parts of curtain

walls,’ and [its] scope ruling [was] limited to the products

discussed in the CWC’s Amended Scope Request.”41

                           Yuanda and Jango challenged the CWC Scope Ruling

before the Court of International Trade (“CIT”), but the CIT

uniquely designed to envelope an entire building and provide
architectural and functional goals.” CWC Am. Scope Request, ECF
No. 83-1 at Tab 2 at Ex 2, at 7. “A curtain wall includes
numerous parts and components including curtain wall units that
are pieces which comprise a curtain wall system. Id. at 2.
40CWCScope Ruling, supra note 36, at 10 (“[T]he products
described in CWC’s Amended Scope Request are within the scope of
the [AD&CVD] Orders.”); see also CWC Am. Scope Request, ECF No.
83-1 at Tab 2 at Ex 2, at 2 (“This request covers curtain wall
units and other parts of a curtain wall system, which are
assembled to create a complete curtain wall that covers the
outside of a building.”); id. at 8-9 (“The merchandise covered
by this scope request is curtain wall sections, falling short of
the final finished curtain wall that envelopes an entire
building structure. Certain curtain wall parts are unitized into
modules that are designed to be interlocked with each other,
like pieces of a puzzle. The units are assembled at a production
facility and shipped to site for installation.”).
41    CWC Scope Ruling, supra note 36, at 9.
Consol. Court No. 14-00106                                   Page 13


affirmed Commerce’s finding that “curtain wall units and other

parts of curtain wall systems fall within the scope of the

[AD&CVD] Orders.”42    The plaintiffs appealed this decision to the

Federal Circuit, but the Federal Circuit affirmed.43

V.     The Scope Ruling on Curtain Wall Units that are Produced
       and Imported Pursuant to a Contract to Supply Curtain Wall
            On March 26, 2013, while Yuanda I was still pending

before the CIT, Yuanda filed its own scope ruling request,

pursuant to 19 C.F.R. § 351.225, to confirm that complete

curtain wall units sold “pursuant to [a] contract[] to supply

[a] complete curtain wall [system]” were excluded from the scope

of the AD&CVD Orders.44     Jangho and Permasteelisa submitted

comments in support of Yuanda’s application; the CWC submitted

comments in opposition.45     Commerce found that “the description

of the products [in Yuanda’s application] and the scope

language, as well as the descriptions of the merchandise in

prior scope rulings and determinations of [Commerce] and the


42    Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, __
CIT __, 961 F. Supp. 2d 1291, 1294 (2014) (“Yuanda I”).
43Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States,
776 F.3d 1351, 1353 (Fed. Cir. 2015)(affirming) (“Yuanda II”).
44Aluminum Extrusions from the [PRC], A-570-967 & C-570-968
(Dep’t of Commerce March 26, 2013) (scope ruling request
regarding complete and finished curtain wall units that are
produced and imported pursuant to a contract to supply a
complete curtain wall) at 1-2, reproduced in Pub. Appx. To
[Yuanda’s Br.], ECF No. 83 at Tab 1 (“Yuanda Scope Request”).
45   Yuanda Scope Ruling, supra note 3, at 2.
Consol. Court No. 14-00106                                                                 Page 14


[International Trade Commission (“ITC”)] [were] dispositive.”46

Relying on these sources, Commerce determined that Yuanda’s

products are subject to the AD&CVD Orders.47

                           Yuanda, Jangho, and Permasteelisa appealed the ruling

to this Court.                              In their initial motions for summary judgment in

this action, Plaintiffs brought attention to the fact that

Commerce had not considered the “description of the merchandise

contained in the [P]etition,”48 in particular, an exhibit from

that Petition that listed “unassembled unitized curtain walls”

as non-subject merchandise under the “finished goods kit”

exclusion.49                        Commerce requested a remand to consider this

evidence and argument.50                                   The court granted the Defendant’s

motion for voluntary remand.51





46 Id. at 20.

47    Id.
48    See 19 C.F.R. § 351.225(k)(1).
49Petition, ECF No. 83-3 at Tab 10, at Exhibit I-5; see Mem. of
P. & A. in Supp. of Yuanda’s Mot. for J. on the Agency R., ECF
No. 38-1, at 4, 14; Mem. in Supp. of Pl. Jangho’s Mot. for J. on
the Agency R., ECF No. 37-1, at 14; [Permasteelisa’s] Rule 56.2
Mot. for J. on the Agency R., ECF No. 39, at 4, 24; see also
Mot. to Supp. the Admin. Record, ECF No. 33 (requesting that the
administrative record be amended to include the Petition);
Order, Sept. 18, 2014, ECF No. 36 (granting the motion to
supplement the administrative record to include the Petition).
50    Def.’s Consent Mot. for Voluntary Remand, ECF No. 49.
51    Order, Dec. 9, 2014, ECF No. 50.
Consol. Court No. 14-00106                                              Page 15


              In the resulting redetermination, Commerce found that

Yuanda’s unassembled curtain wall units were within the scope of

the AD&CVD Orders unless all necessary parts for an entire

curtain wall were present “at the time of importation,” i.e., in

the same entry, on a single Customs and Border Protection

(“CBP”) 7501 Entry Summary form.52                Plaintiffs’ renewed motions

for judgment on the agency record are now before the court.53                   On

December 10, 2015 the court heard oral argument on Plaintiffs’

motions.54

VI.    The Product at Issue as Described in Yuanda’s Scope Ruling
       Request
              Yuanda requested a scope ruling to confirm that

“complete, finished unitized curtain wall units . . . sold to

building developers, general contractors and/or glazing

companies pursuant to contracts to supply them with curtain wall

systems,” were excluded from the scope of the AD&CVD Orders.55

This product is also referred to as “complete curtain wall

units”56 to be assembled into a curtain wall (curtain wall and


52    Redetermination, ECF No. 68-1, at 16.
53See Yuanda’s Br., ECF Nos. 79 & 80; Jangho Br., ECF No. 78;
Permasteelisa’s Br., ECF No. 39 (as amended by Notice of
Withdrawal, ECF No. 84).
54Oral Arg., Dec. 10, 2015, ECF No. 99; see Tr. of Oral Arg.,
ECF No. 100.
55   Yuanda Scope Request, ECF No. 83 at Tab 1, at 1-2.
56This term appears to have been adopted to describe the
merchandise at issue here to be in keeping with the CWC Scope
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 16


curtain wall system being used interchangeably) and “unassembled

unitized curtain walls.”57

                           A curtain wall, according to Yuanda, is a set of

interlocking “curtain wall units that form a non-load bearing

wall on a floor or part of a building.”58                                                                          Each curtain wall unit

is “produced to the exacting architectural specifications of the

building on which it is to be installed.”59                                                                              A “‘complete and

finished’ unitized curtain wall unit is produced by fabricating

a frame (generally from extruded aluminum), adding to it thermal

insulation, filling it (generally with glass), sealing the

infill, drilling holes, attaching additional metal or plastics,

and shipping to the job site for installation.”60





Ruling, where Commerce declined to consider whether a “complete
curtain wall unit” could be excluded as a finished goods kit.
See CWC Scope Ruling, supra note 36, at 9; Yuanda Scope Request,
ECF No. 83 at Tab 1, at 7.
57See Yuanda Scope Request, ECF No. 83 at Tab 1, at 7;
Redetermination, ECF No. 68-1, at 34.
58Yuanda Scope Request, ECF No. 83 at Tab 1, at 7; see also id.
at 8 (“Because curtain wall units form a wall of a building or
part of a building when they are joined together, they are
designed to meet thermal expansion and contraction, building
sway and movement, water diversion, thermal efficiency, and
structural integrity.” (citation omitted)).
59    Id. at 7.
60Id. at 8; see Ex. 1 to Yuanda Scope Request, ECF No. 83 at Tab
1 (providing diagrams and photos illustrating the fabrication,
finishing, and installation process of Yuanda’s unitized curtain
wall).
Consol. Court No. 14-00106                                      Page 17


            Because “complete curtain wall units form part of a

larger curtain wall system specifically designed for a

building,” unassembled curtain wall units “are sold and

delivered to the job site in segments pursuant to the schedule

stipulated in the contract to supply the larger system.”61        If

that system is “for a multi-story skyscraper,” then it may

require shipments of curtain wall units and installation

hardware “over a period of months,” with “[e]ach entry

dovetail[ing] with the contractor’s construction schedule so

that complete curtain wall units can be immediately installed

onto the building when the container arrives at the job site.”62



                          STANDARD OF REVIEW

            The court will sustain Commerce's determinations

unless they are “unsupported by substantial evidence on the

record, or otherwise not in accordance with law.”63        The court

will set aside agency actions found to be arbitrary and

capricious.64



61 Yuanda Scope Request, ECF No. 83 at Tab 1, at 8-9.

62   Id. at 9.
63   19 U.S.C. § 1516a(b)(1)(B)(i).
64Changzhou Wujin Fine Chem. Factory Co., Ltd. v. United
States, 701 F.3d 1367, 1377 (Fed. Cir. 2012) (citing Bowman
Transp., Inc. v. Arkansas–Best Freight Sys., Inc., 419 U.S. 281,
284 (1974)).
Consol. Court No. 14-00106                                    Page 18

                              DISCUSSION

I.     Individual Curtain Wall Units Are Within the Scope of the
       AD&CVD Orders as “Parts of . . . Curtain Walls”
            The AD&CVD Orders on aluminum extrusions cover, as the

name indicates, “aluminum extrusions,” that is, “shapes and

forms, produced by an extrusion process, made from [certain]

aluminum alloys.”65    Aluminum extrusions “described at the time

of importation as parts for final finished products” such as

“curtain walls,” to be “assembled after importation,” are

subject to the AD&CVD Orders as long as they “otherwise meet the

definition of aluminum extrusions.”66      “A single [curtain wall]

unit” is not a whole “curtain wall,” and as such, is a “part” or

“subassembly” of a curtain wall.67

            At issue here is whether “curtain wall units . . .

produced and imported pursuant to a contract to supply a

complete curtain wall,”68 – may be properly excluded from the

scope of the AD&CVD Orders under one of the pertinent




65    AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at
30,653; see also Meridian Products, LLC v. United States, Ct No.
13-00246, ECF No. __, at 4-5, 10 (CIT 2015) (explaining that the
AD&CVD Orders are meant to cover aluminum extrusions).
66AD Order, 76 Fed. Reg. at 30,650-51; CVD Order, 76 Fed. Reg.
at 30,653-54.
67Yuanda II, 776 F.3d at 1357-58 (citing Yuanda I, __ CIT __,
961 F. Supp. 2d at 1298-99)).
68   See Yuanda Scope Ruling, supra note 3, at 1.
Consol. Court No. 14-00106                                     Page 19


exclusions, that is, either as a “finished good” or as a

“finished goods kit.”69

II.    Finished Goods Exclusion
            The finished goods exclusion provides that “finished

merchandise containing aluminum extrusions as parts that are

fully and permanently assembled and completed at the time of

entry” are excluded from the scope of the AD&CVD Orders.70

            Following the Federal Circuit’s statement that a

single curtain wall unit is a part for a final finished good (a

curtain wall), and therefore not a finished good in and of

itself,71 Plaintiffs here withdrew their arguments that a

complete, unitized curtain wall imported pursuant to a sales



69    Plaintiffs argue that “the subject curtain wall units and
curtain walls were not part of the underlying injury
determination by the [ITC].” Jangho’s Br., ECF No. 78, at 17;
see Yuanda’s Br., ECF Nos. 79 & 80, at 31; Permasteelisa’s Br.,
ECF No. 39, at 22-27. However, this question has already been
decided. Yuanda I and Yuanda II concluded that the ITC injury
determination was broad enough to include curtain wall products.
Yuanda I, 961 F. Supp. 2d at 1299 (finding curtain wall products
within the scope of the ITC’s injury determination in the
absence 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”); Yuanda II, 776 F.3d at
1358 (finding that the ITC’s injury determination supported
Commerce’s scope ruling for curtain wall parts because the
injury determination discussed “high-rise curtain wall products”
(internal quotation marks and citations omitted)).
70AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at
30,654.
71   Yuanda II, 776 F.3d at 1358-59.
Consol. Court No. 14-00106                                Page 20


contract was a finished good,72 even though the Federal Circuit’s

holding was for a different product (i.e., curtain wall parts

and individual curtain wall units) than that at issue here,73 and

arguably outside the jurisdiction conferred for review of the

underlying CWC Scope Ruling.74



72 Compare Yuanda’s Br., ECF No. 79 (not arguing the finished

goods exclusion); Jangho’s Br., ECF No. 78 (same) with Yuanda’s
Br., ECF No. 38-1 at 24-25 (arguing that the finished goods
exclusion was appropriate); Jangho’s Br., ECF No. 37-1, at 13-14
(same); Notice of Withdrawal, ECF No. 84, at 2 (amending
Permasteelisa’s brief to withdraw “[a]ll argument regarding
whether the ‘finished goods’ exclusion” applies).
73Yuanda II, 776 F.3d at 1358 (“A single unit does not a curtain
wall make, nor is it a finished product. . . . A part or
subassembly, here a curtain wall unit, cannot be a finished
product.); see also Yuanda I, __ CIT at __, 961 F. Supp. 2d at
1298-99 (“An individual curtain wall unit, on its own, has no
consumptive or practical use because multiple units are required
to form the wall of a building. Therefore, a curtain wall unit’s
sole function is to serve as a part for a much larger, more
comprehensive system: a curtain wall. All of this being the
case, it is clear that curtain wall units are not finished
merchandise but, rather, are parts for curtain walls.”); CWC
Scope Ruling, supra note 36, at 1 (considering “curtain wall
units and other parts of curtain wall systems”), 9 (declining to
consider “complete curtain wall[] units”); CWC Am. Scope
Request, ECF No. 83-1 at Tab 2 at Ex 2,, at 1-2, 8-9 (defining
the product at issue in the CWC Scope Ruling as “parts of
curtain walls,” namely “curtain wall sections, falling short of
the final finished curtain wall that envelopes an entire
building structure,” including, but not limited to individual
curtain wall units, i.e., “unitized . . . modules that are
designed to be interlocked with each other, like pieces of a
puzzle”).
74See CWC Scope Ruling, supra note 36 at 8-10 (providing, in a
discussion section that is a model of opacity, no mention, let
alone analysis, of the finished goods exclusion, despite the
issue having been raised before the agency, id. at 6-7). This
Court (and by extension the Federal Circuit) requires that
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 21


III. Finished Goods Kit Exclusion
                           The AD&CVD Orders provide that “finished goods” that

contain aluminum extrusions and are entered “unassembled in a

‘finished goods kit’” are excluded from the scope of the order.75

A product may be excluded as a finished goods kit if it is “[1]

a packaged combination of parts that [2] contains, at the time

of importation, all of the necessary parts to fully assemble a

final finished good and [3] requires no further finishing or

fabrication, such as cutting or punching, and [4] is assembled

‘as is’ into a finished product.”76

                           Initially, Commerce’s analysis of the “finished goods

kit” exclusion focused on whether all the parts to assemble a

complete downstream product were present “at the time of





administrative remedies be exhausted. 28 U.S.C. § 2637(d);
Sandvik Steel Co. v. United States, 164 F.3d 596, 599 (Fed. Cir.
1998) (citing McKart v. United States, 395 U.S. 185, 193
(1969)). Where administrative remedies have not been exhausted,
“judicial review of administrative action is inappropriate,”
Sharp Corp. v. United States, 837 F.2d 1058, 1062 (Fed. Cir.
1988), since it is “a general rule that courts should not topple
over administrative decisions unless the administrative body not
only has erred but has erred against objection made at the time
appropriate under its practice.” United States v. L.A. Tucker
Truck Lines, Inc., 344 U.S. 33, 37 (1952).
75AD Order, 76 Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at
30,654.
76AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at
30,654.
Consol. Court No. 14-00106                                   Page 22


importation.”77     Commerce subsequently “identified a concern with

this analysis.”78     Namely, if a product was “designed to work

with other parts to form a larger structure,”79 or “system,”80

then requiring all of the necessary parts for a final finished

good at the time of importation could “lead to unreasonable” or

even “absurd results” that unduly “expand the scope of the

[AD&CVD Orders]” outside the “intended . . . aluminum

extrusions.”81


77 See Final AD I&D Mem., supra note 10, at Cmt. 3H at 28

(finding that because “a baluster kit” was “a packaged
collection of individual parts, which comprise a single element
of a railing or deck system,” it could not “represent a finished
product”); Aluminum Extrusions from the [PRC], A-570-967 & C-
570-968 (Dep’t of Commerce Oct. 31, 2011) (final scope ruling on
certain modular aluminum railing systems) at 14 (finding that
“[b]ecause these individual component products at issue [modular
aluminum railing systems] do not contain all of the parts
required to assemble a final finished railing system, the
products do not constitute complete and finished products”)
(“Modular Railing Scope Ruling”).
78   SMVC Scope Ruling, supra note 24, at 7.
79   Final AD I&D Mem., supra note 10, at Cmt. 3H at 28
80   Modular Railing Scope Ruling, supra note 77, at 14.
81SMVC Scope Ruling, supra note 24, at 7 (quoting AD Order, 76
Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at 30,653 (“The
merchandise covered by this order is aluminum extrusions which
are shapes and forms, produced by an extrusion process, made
from aluminum alloys having metallic elements . . . .”)).
Commerce explained that “[a]n interpretation of ‘finished goods
kit’ which requires all parts to assemble the ultimate
downstream product [at the time of importation] may lead to
absurd results, particularly where the ultimate downstream
product is, for example, a fire truck,” or indeed a “larger
structure, such as a house.” SMVC Scope Ruling, supra note 24,
at 7.
Consol. Court No. 14-00106                                           Page 23


            “[U]pon further reflection of the language in the

scope of the [AD&CVD Orders],” Commerce “revis[ed] the manner in

which it determines whether a given product is a ‘finished good’

or ‘finished goods kit.’”82         Specifically, the AD&CVD Orders

expressly exclude “subassemblies, i.e., partially assembled

merchandise” when “imported as part of [a] finished goods kit.”83

Reliance on whether all the parts for complete downstream

product are present at the time of importation84 “fails to

account” for this language “allow[ing] for the exclusion of

‘subassemblies,’ i.e., merchandise that is ‘partially assembled’

and inherently part of a larger whole.”85             Instead, this language

indicates that, when a product is a subassembly, it “may be

excluded from the scope”86 provided that“[1] [it] require[s] no

further ‘finishing’ or ‘fabrication’ prior to assembly, [2]

contain[s] all the necessary hardware and components for


82    SMVC Scope Ruling, supra note 24, at 6-7.
83With a finished good kit defined as “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.” Id.
(emphasis omitted) (quoting AD Order, 76 Fed. Reg. at 30,651;
CVD Order, 76 Fed. Reg. at 30,654).
84Commerce phrases this in terms of “simply examining whether [a
product] is part of a larger structure or system,” not present
at the time of importation. See id. at 7.
85   Id. at 7.
86   Id.
Consol. Court No. 14-00106                                  Page 24


assembly, and [3] [is] ready for installation at the time of

entry.”87

            Thus, while Commerce’s initial test for the finished

goods kit exclusion remains the general rule,88 when


87    [Valeo] Final Results of Redetermination Pursuant to Ct.
Remand, Ct. No. 12-00381, ECF No. 20-1 (“Valeo
Redetermination”), at 8 (citing SMVC Scope Ruling, supra note
24, at 7). Further, subassemblies made entirely from aluminum
extrusions cannot be so excluded. AD Order, 76 Fed. Reg. at
30,651; CVD Order, 76 Fed. Reg. at 30,654; see Aluminum
Extrusions from the [PRC], A-570-967 & C-570-968 (Dep’t of
Commerce Nov. 19, 2012) (final scope ruling on motor cases,
assembled and housing stators) at 14.
88See, e.g., Aluminum Extrusions from the [PRC], A-570-967 & C-
570-968 (Dep’t of Commerce Dec. 2, 2013) (final scope ruling on
Traffic Brick Network, LLC’s event decor parts and kits)
(“Traffic Brick Scope Ruling”) at 10 (“[W]e find Traffic Brick's
Pipe Kits and Pipe and Drape Kits to be excluded from the scope
of the [AD&CVD Orders] because they are finished goods kits that
contain at the time of importation all parts necessary to fully
assemble a complete display structure.”); Aluminum Extrusions
from the [PRC], A-570-967 & C-570-968 (Dep’t of Commerce Sept.
12, 2013) (final scope ruling on Law St. Enterprises, LLC’s
disappearing door screens) (“Law St. Scope Ruling”) at 9 (“The
disappearing screens do not constitute finished good kits
because, at the time of importation, like parts are packaged
together for shipment, meaning that all of the pieces necessary
to assemble a final finished product (i.e., a disappearing
screen) are not packaged together at the time of importation.”
Further, “Side Mount Valve Controls are . . . distinguishable
from disappearing screens because they are ‘subassemblies’
(merchandise that is partially assembled and inherently part of
a larger whole) that entered the United States as finished goods
kits).”); Aluminum Extrusions from the [PRC], A-570-967 & C-570-
968 (Dep’t of Commerce Apr. 19, 2013) (final scope ruling on 5
Diamond Promotions, Inc.’s aluminum flag pole sets) (Diamond
Scope Ruling”) at 9 (“Although the flag pole sets require no
further fabrication once imported, the flag pole sets do not
constitute finished good kits because at the time of
importation, similarly-sized unassembled flag pole sections are
bundled together for shipment, meaning that all of the sections
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 25


subassemblies are at issue, Commerce’s “finished goods” and

“finished goods kit” analysis no longer focuses on whether all

the parts for the ultimate downstream product (e.g., the fire

truck, the building) are present “at the time of importation”;

rather the emphasis is on how finished and ready for

installation in the ultimate downstream product the subassembly

is.89

                           Here, Commerce has determined that, based on the plain

language of the AD&CVD Orders and the (k)(1) materials, “a

unitized curtain wall shipped as curtain wall units can be

excluded as a ‘finished goods kit,’ but only if all of the

necessary curtain wall units are imported at the same time in a

manner that they can be assembled into a finished curtain wall



necessary to assemble a final finished product (i.e., the flag
pole) are not packaged together as a complete set in one
package.”).
89See, e.g., Aluminum Extrusions from the [PRC], A-570-967 & C-
570-968 (Dep’t of Commerce Nov. 21, 2013) (final scope ruling on
Kam Kiu’s subparts for metal bushings) at 9 (“Kam Kiu’s subparts
[are not excluded as subassemblies because they] are incomplete
and unfinished, resembling standard extrusions that require
additional finishing before being installed.”); Aluminum
Extrusions from the [PRC], A-570-967 & C-570-968 (Dep’t of
Commerce Nov. 19, 2012) (final scope ruling on motor cases,
assembled and housing stators) at 14 (“We find that the
assembled motor cases housing stators at issue meets the
criteria for exclusion as outlined in the SMVC Scope Ruling. As
noted above, the assembled motor cases housing stators at issue
do not consist entirely of extruded aluminum. Further, we find
that the assembled motor cases housing stators require no
further finishing or fabrication upon importation.”).
Consol. Court No. 14-00106                                                   Page 26


upon importation.”90          Commerce makes this determination on the

basis that a finished goods kit must include “all of the

necessary parts” to assemble a final finished good at the time

of importation, i.e. “at the same time, as part of the same

entry,” listed on the same CBP 7501 form.91                     Because “[t]he

evidence on the record indicate[d] that many curtain walls are

constructed in stages,” and Yuanda “in particular does not

import all the necessary curtain wall units to assemble a

curtain wall at one time,” Commerce reasoned that the finished

goods kit exclusion could not apply.92                     Commerce declined to

consider the subassemblies test because it believes curtain wall

units are not, by definition, subassemblies.93

              Commerce’s determination is unreasonable because

(1) it is contrary to the terms of the AD&CVD Orders, having

defined “subassembly” contrary to the plain language of the

Orders; (2) it fails to adequately consider or address the

description of the merchandise at issue and the (k)(1)

materials, making the determination unsupported by substantial

evidence; and (3) it draws distinctions between small and large

unitized curtain wall systems, and between unitized curtain wall


90    Redetermination, ECF No. 68-1, at 16.
91   Id. at 15 (citations omitted).
92   Id. at 17.
93   Id. at 35-36.
Consol. Court No. 14-00106                                   Page 27


systems and similar products in a way that is arbitrary and

capricious.

       A. Commerce Has Interpreted the AD&CVD Orders Contrary to
          Their Terms

          “[A] scope determination is not in accordance with the

law if it changes the scope of an order or interprets an order

in a manner contrary to the order’s terms.”94

          The AD&CVD Orders define “subassembl[y]” as “partially

assembled merchandise.”95    This definition is important because a

subassembly may be excluded from the scope of the AD&CVD Orders

“provided that they enter the United States as ‘finished goods’

or ‘finished goods kits.’”96    Subassemblies may be finished goods

or a finished goods kit (and therefore excluded) if they satisfy

the subassemblies test: “[1] they require no further ‘finishing’

or ‘fabrication’ prior to assembly,97 [2] contain all the


94    Allegheny Bradford Corp. v. United States, 28 CIT 830, 842,
342 F. Supp. 2d 1172, 1183 (2004) (citing Duferco Steel, 296
F.3d at 1094—95); Eckstrom Indus., 254 F.3d at 1072.
95AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at
30,654; see also Valeo Redetermination, Ct. No. 12-00381, ECF
No. 20-1, at 8 (sustained, unchallenged, in Order, June 20,
2013, Ct. No. 12-00381, ECF No. 23) (defining subassembly as
“merchandise that is ‘partially assembled’ and inherently part
of a larger whole.”) (quoting SMVC Scope Ruling, supra note 24,
at 7).
96SMVC Scope Ruling, supra note 24, at 7 (quoting AD Order, 76
Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at 30,654).
97Defendant-Intervenor argues that the unitized curtain wall at
issue here cannot be excluded under the finished goods kit
exclusion because it requires “further fabrication and assembly
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 28


necessary hardware and components for assembly, and [3] are

ready for installation at the time of entry.”98

                           Here, Commerce defines subassembly, without reference

to the language of the AD&CVD Orders, as a “unique subsidiary

component of a larger finished product,”99 and determines that,

based on this definition, unitized curtain wall cannot be a

subassembly because curtain wall units “ha[ve] no identity of

[their] own other than as a part of a curtain wall.”100                                                                                                  But

Commerce’s analysis is contrary to the plain language of the

AD&CVD Orders. There is nothing in the language of the Orders


after importation.” CWC Reply, ECF No. 87, at 30-32. Because
Commerce did not reach this question, see Redetermination, ECF
No. 68-1, at 41-42, the court also does not reach this question.
98Valeo Redetermination, Ct. No. 12-00381, ECF No. 20-1, at 8
(citing SMVC Scope Ruling, supra note 24, at 7). Further,
subassemblies made entirely from aluminum extrusions cannot be
so excluded. AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76
Fed. Reg. at 30,654; see Aluminum Extrusions from the [PRC],
Final Scope Ruling, A-570-967 & C-570-968 (Dep’t of Commerce
Nov. 19, 2012) (final scope ruling on motor cases, assembled and
housing stators) at 14. This prohibition is not at issue here
because unitized curtain wall is made from a variety of
materials, including aluminum extrusions. See Yuanda Scope
Request, ECF No. 83 at Tab 1, at 8 (Yuanda’s unitized curtain
wall “is produced by fabricating a frame (generally from
extruded aluminum), adding to it thermal insulation, filling it
(generally with glass), sealing the infill, drilling holes,
[and] attaching additional metal or plastics.”); Ex. 1 to Yuanda
Scope Request, ECF No. 83 at Tab 1 (providing diagrams and
photos explaining fabrication, finishing, and installation
process of Yuanda unitized curtain wall).
99Redetermination, ECF No. 68-1, at 35 (citing SMVC Scope
Ruling, supra note 24, at 7).
100     Id. at 36 (quoting Yuanda Scope Ruling, ECF No. 34-1, at 25).
Consol. Court No. 14-00106                                     Page 29


that requires “uniqueness” or “individual identity” from a

subassembly.   A subassembly is defined as “partially assembled

merchandise.”101   Indeed, Commerce’s own application of the

subassemblies test contradicts this “uniqueness” requirement.102

          Commerce also asserts that the subassemblies test need

not be considered here because “there is specific scope language

identifying parts for curtain walls as subject to the [AD&CVD

Orders]” and “both the CIT and [Federal Circuit] have affirmed

[Commerce’s] conclusion that curtain wall units are ‘parts of

curtain walls.’”103



101 AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at

30,654.
102See, e.g., Aluminum Extrusions from the [PRC], A-570-967 & C-
570-968 (Dep’t of Commerce July 25, 2014) (final scope ruling on
fan blade assemblies) at 16 (finding that fan blades, to be
installed in a cooling system, although not unique, were
subassemblies and finished goods, and therefore excluded); id.
at 17 (explaining that the Yuanda Scope Ruling, ECF No. 34-1,
does not stand for the proposition that “a final finished good
must have a consumptive use on its own in order to be excluded
from the scope of the [AD&CVD] Orders.”); Aluminum Extrusions
from the [PRC], A-570-967 & C-570-968 (Dep’t of Commerce Nov.
23, 2015) (final scope ruling on Dometic Corp.’s lateral arm
assemblies) at 11 (finding the lateral arm assemblies excluded
as “subassemblies that qualify for the finished merchandise
exclusion” because they “entered the United States as finished
merchandise and subsequently were integrated into a larger
system,” and “require no further assembly or fabrication after
importation; they are ready for immediate use,” without mention
of any uniqueness or individual identity requirement).
103Redetermination, ECF No. 68-1, at 36 (citing Yuanda I, __ CIT
at __, 961 F. Supp. 2d at 1297-98; Yuanda II, 776 F.3d at 1356-
59).
Consol. Court No. 14-00106                                    Page 30


          “[P]arts for . . . curtain walls,” however, are

included within the scope of the AD&CVD Orders only insofar as

they “otherwise meet the definition of aluminum extrusions.”104

The exclusions are part of the definition of aluminum

extrusions, i.e, in the same way that parts for curtain walls

made with non-PRC aluminum are excluded, parts for curtain walls

that are a finished good kit or a subassembly finished good kit

are excluded.105   That parts for curtain walls are within the

scope does not prevent Yuanda’s unitized curtain wall from being

excluded.106   “Words are not pebbles in alien juxtaposition; they


104     AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at
30,654.
105To suggest, as Commerce has done here, that excluding
Yuanda’s unitized curtain wall would render the provision for
“parts for . . . curtain walls” a nullity, is a false
contrapositive. See Yuanda Scope Ruling, ECF No. 34-1, at 23
(“Because the scope language expressly includes parts of curtain
walls, and because a curtain wall unit is part of a curtain
wall, we would read out of the scope the inclusion of parts of
curtain walls were we to find that a curtain wall unit is
finished merchandise that is not covered by the scope.”). As
the CWC pointed out in their scope ruling request, “[a] curtain
wall includes numerous parts and components including curtain
wall units.” CWC Am. Scope Request, ECF No. 83-1 at Tab 2 at Ex.
2, at 2; see also American Architectural Manufacturers Assoc.,
Curtain Wall Design Guide Manual (2005), Ex. 2 to Yuanda Scope
Request, reproduced in Pub. App. to [Yuanda’s Br.], ECF No. 83
at Tab 1 (“AAMA Manual”), at 3-9 (explaining that there are five
main types of curtain wall systems, including stick systems,
unit systems, and unit and mullion systems, all having different
parts of various degrees of preassembly).
106See Petition, ECF No. 83-3 at Tab 10, at Ex. I-5 (listing
“unassembled unitized curtain walls” as excluded from the scope
under the finished goods kit exclusion).
Consol. Court No. 14-00106                                    Page 31


have only a communal existence; and not only does the meaning of

each interpenetrate the other, but all in their aggregate take

their purport from the setting in which they are used[. . .].”107

             Further, the decisions to which Commerce cites do not,

as Commerce suggests, support the proposition that the inclusion

of “parts for . . . curtain walls” precludes consideration of

any exclusion.108    In the CWC Scope Ruling, Commerce found that

“the products described in CWC’s Amended Scope Request are

within the scope of the Orders.”109    The CWC’s Amended Scope

Request covered “parts of curtain walls,”110 defined as “curtain

wall sections, falling short of the final finished curtain

wall,” including, but not limited to, curtain wall units, i.e.,

“modules that are designed to be interlocked with each other,

like pieces of a puzzle.”111    The CIT and Federal Circuit



107     NLRB v. Federbush Co., 121 F.2d 954, 957 (2d Cir. 1941) (L.
Hand, J.).
108Cf. Redetermination, ECF No. 68-1, at 9-17 (finding that
curtain wall units may be excluded from the scope of the AD&CVD
Orders as a finished goods kit if all parts to assemble a final,
finished curtain wall were present at the time of importation).
109   CWC Scope Ruling, supra note 36, at 10.
110   CWC Am. Scope Request, ECF No. 83-1 at Tab 2 at Ex 2, at 2.
111Id. at 8-9; see also CWC Scope Ruling, supra note 36, at 3
(“The CWC states that curtain wall parts fall short of the final
finished curtain wall that envelopes an entire building
structure. Certain curtain wall parts are assembled into
modules that are designed to be interlocked with either curtain
wall parts, like pieces of a puzzle.”). But cf. id. at 9 (“[W]e
note that CWC’s Amended Scope Request does not seek a scope
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 32


affirmed this ruling.112                                            However, because the “scope ruling was

limited to the products discussed” in the CWC’s scope request,

Commerce did not consider, indeed expressly declined to

consider, whether the specific products of any interested party

could be properly excluded under any of the AD & CVD Orders’

enumerated exclusions.113                                              This Court sustained that decision.114


ruling on complete curtain wall units, but rather ‘parts of
curtain walls,’ and this scope ruling is limited to the products
discussed in the CWC’s Amended Scope Request.”).
112Yuanda I, 961 F. Supp. 2d at 1294 (“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 [AD&CVD
Orders].”); Yuanda II, 776 F.3d at 1359 (“The scope language
explicitly includes “parts for ... curtain walls” and curtain
wall units are parts of a finished curtain wall.”).
113     CWC Scope Ruling, supra note 36, at 9.
114Yuanda I, 961 F. Supp. 2d at 1301 (“The court finds that
Commerce properly confined its inquiries to the request made by
the CWC . . . . 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.”); see
also Yuanda II, 776 F.3d 1351 (providing no discussion of the
finished goods kit exclusion nor the subassemblies test). The
court in Yuanda II appears to have misstated when it says that
“Commerce explicitly considered whether Yuanda’s merchandise
fell into one of the enumerated exclusions.” 776 F.3d at 1358.
Further any such misstatement would also be mere dicta because
Yuanda’s merchandise was never at issue before Commerce, CWC
Scope Ruling, supra note 36, at 9 (“[T]his scope ruling is
limited to the products discussed in the CWC’s Amended Scope
Request.”), and Commerce explicitly declined to consider
Yuanda’s merchandise and the applicability of the AD&CVD Order
exclusions thereto, id. at 9 (“[W]e note that the CWC’s Amended
Scope Request does not seek a scope ruling on [the product
described by Yuanda,] complete curtain wall units, but rather
‘parts for curtain walls,’ and this scope ruling is limited to
the products discussed in the CWC’s Amended Scope Request.”).
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 33


At no point did Commerce consider the products at issue here,115

nor the applicability of any scope exclusions thereto.116                                                                                                     The

CWC Scope Ruling, and the cases affirming it, cannot be cited

for an interpretation and finding that was not considered or

discussed.

                           If anything, Yuanda I and Yuanda II may be cited for

the opposite proposition, as both found that individual curtain


See 28 U.S.C. § 2637(d) (requiring exhaustion of administrative
remedies for jurisdiction).
115Yuanda II refers to the product at issue in the CWC Scope
Ruling as “Yuanda’s curtain wall units.” See, e.g., Yuanda II,
776 F.3d at 1354 (“Commerce initiated a scope investigation of
the [AD&CVD Orders] and determined Yuanda's curtain wall units
were within the scope.”). However, this is a misnomer, as
Yuanda’s merchandise, curtain wall units or otherwise, were not
at issue before Commerce. CWC Scope Ruling, supra note 36, at 9
(“[T]his scope ruling is limited to the products discussed in
the CWC’s [] Scope Request.”); id. at 1 (considering “curtain
wall units and other parts of curtain wall[s]” as described in
the CWC Am. Scope Request); Yuanda I, __ CIT at __, 961 F. Supp.
2d at 1300 (“Commerce properly confined its inquiries to the
request made by the CWC . . . . 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.”). “Yuanda’s curtain wall units” could not have
been at issue before the Federal Circuit if they were not at
issue already before Commerce. See 28 U.S.C. § 2637(d)
(requiring exhaustion of administrative remedies for
jurisdiction); see also Sandvik Steel, 164 F.3d at 599 (Fed.
Cir. 1998) (citing McKart, 395 U.S. at 193).
116CWC Scope Ruling, supra note 36, at 9; Yuanda I, __ CIT at
__, 961 F. Supp. 2d at 1300-01; Yuanda II, 776 F.3d at 1353
(“[The CWC Amended 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 [AD&CVD
Orders].” (internal quotation marks, emphasis, and citation
omitted)).
Consol. Court No. 14-00106                                   Page 34


wall units were subject merchandise at least in part because

curtain wall units were subassemblies of curtain walls,117 and

declined, expressly or impliedly, to consider the subassembly

exclusion as applied to any specific product, including

Plaintiff’s, because that would go “far beyond the [underlying]

CWC’s [Scope Ruling] Request,” and therefore the scope of

Commerce’s determination and the courts’ jurisdiction.118    That


117     Specifically, the court in Yuanda I notes that “‘[t]he scope
includes the aluminum extrusion components that are attached
(e.g., by welding or fasteners) to form subassemblies, i.e.,
partially assembled merchandise,’” __ CIT at __, 961 F. Supp. 2d
at 1296 (quoting AD Order, 76 Fed. Reg. at 30,651), that
“[c]urtain wall units are assembled into completed curtain walls
by, among other things, fasteners,” id. at 1297 (internal
citations omitted), and that “[p]laintiffs necessarily concede
that absolutely no one purchases for consumption a single
curtain wall piece or unit” because “a number of curtain wall
units are attached to form the completed curtain wall, the final
finished product,” id. at 1278 (internal quotation marks and
citation omitted). On this basis the court concluded that
“[c]urtain wall units are therefore undeniably components that
are fastened together to form a completed curtain wall,”
tracking the subassembly language from the AD&CVD Orders, and
are thus “‘parts for,’ and ‘subassemblies’ for, completed
curtain walls” and “fall within the scope of the [AD&CVD]
Orders. Id. at 1278; see AD Order, 76 Fed. Reg. at 30,651; CVD
Order, 76 Fed. Reg. at 30,654. Yuanda II affirms this analysis.
Yuanda II, 776 F.3d at 1358.
118Yuanda I, __ CIT at __, 961 F. Supp. 2d at 1301; see CWC
Scope Ruling, supra note 36, at 9; Yuanda I, 961 F. Supp. 2d at
1300-01 (“The court finds that Commerce properly confined its
inquiries to the request made by the CWC . . . . 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.”); Yuanda II, 776 F.3d 1351 (providing
no discussion of the finished goods kit exclusion nor the
subassemblies test); see also 28 U.S.C. § 2637(d) (requiring
exhaustion of administrative remedies for jurisdiction).
Consol. Court No. 14-00106                                    Page 35


is, the courts affirmatively answered the threshold question as

to whether a curtain wall unit was a subassembly,119 but left to

Commerce the question of how the subassembly exclusion affected

the status of any specific unitized curtain wall product.      The

court in Yuanda I indicated that “[i]f [P]laintiffs wished

treatment for their specific products under the ‘finished goods

kit’ exception,” whether general or subassembly-specific, “their

route was to file a petition of their own seeking the benefit of

the exclusion” for their specific product, making the finished

good kit exclusion a question “for another day.”   120   This is that

day.





119     Indeed, as the Yuanda I and II analysis implies, a curtain
wall unit must be considered a subassembly rather than a “part”
on the plain language of the AD&CVD Orders: “[P]arts” of final
finished merchandise are “included in the scope” if they
“otherwise meet the definition of aluminum extrusions,” AD
Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at
30,654, i.e., are shapes and forms made of the covered aluminum
alloys and produced by an extrusion process, AD Order, 76 Fed.
Reg. at 30,650; CVD Order, 76 Fed. Reg. at 30,654.
Subassemblies are “partially assembled merchandise” including
both “aluminum extrusion component[s] attached [together] (e.g.,
by welding or fasteners)” and “non-aluminum extrusion
components.” Id. A curtain wall unit is more than extruded
aluminum shapes and forms; they include “non-aluminum extrusion
components” – glass, plastics, and other metals. Yuanda Scope
Request, supra note 3, at 8; see Ex. 1 to Yuanda Scope Request,
ECF No. 83 at Tab 1 (providing diagrams and photos explaining
fabrication, finishing, and installation process of Yuanda
unitized curtain wall).
120   Yuanda I, __ CIT at __, 961 F. Supp. 2d at 1301.
Consol. Court No. 14-00106                                     Page 36


             While Commerce “enjoys substantial freedom to

interpret and clarify its antidumping duty orders, it can

neither change them, nor interpret them in a way contrary to

their terms.”121    Here, Commerce has changed and expanded the

terms of the AD&CVD Orders by redefining “subassembly” and

ignoring the scope language that limits products covered.

Accordingly, Commerce’s Redetermination is not in accordance

with law.

          B. Commerce’s Ruling is Unsupported by Substantial
             Evidence

             “[T]he substantial evidence standard requires review

of the entire administrative record” and asks, in light of that

evidence, whether that determination was reasonable.122      “The

substantiality of evidence must take into account whatever in

the record fairly detracts from its weight.”123

             In the scope ruling at issue here, the administrative

record includes the (k)(1) materials – “[t]he descriptions of

the merchandise contained in the petition, [Commerce's] initial

investigation, and the [prior] determinations of [Commerce]

(including prior scope determinations) and the [International

121     Wheatland Tube Co. v. United States, 161 F.3d 1365, 1370
(Fed. Cir. 1998) (internal citations, and quotation and
alteration marks, omitted).
122Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351
(Fed. Cir. 2006).
123   Universal Camera Corp. v. N.L.R.B., 340 U.S. 474, 488 (1951).
Consol. Court No. 14-00106                                       Page 37


Trade] Commission,”124 – which provide the regulatory history, to

aid in the interpretation of the language of the AD&CVD

Orders.125

             Here, Commerce was confronted with the fact that a

(k)(1) material, the previously neglected Petition, expressly

lists “unassembled unitized curtain walls” as excluded

merchandise under the “finished goods kit” exclusion.126

             Commerce tries to construe this statement as evidence

for its conclusion that “a unitized curtain wall shipped as

curtain wall units can be excluded as a ‘finished goods kit,’

. . . only if all of the necessary curtain wall units” to make a

complete curtain wall are “imported at the same time,” i.e.,

entered on the same 7501 form.127    However, as Commerce points

out, the Petition “provides no further clarification on what



124     Mid Continent Nail Corp., 725 F.3d at 1302 (quoting 19
C.F.R. § 351.225(k)(1)) (alterations original).
125Smith Corona Corp. v. United States, 915 F.2d 683, 685 (Fed.
Cir. 1990) (“The class or kind of merchandise encompassed by a
final antidumping order is determined by the order, which is
interpreted with the aid of the antidumping petition, the
factual findings and legal conclusions adduced from the
administrative investigations, and the preliminary order.”).
126   Petition, ECF No. 83-3 at Tab 10, at Ex. I-5.
127Redetermination, ECF No. 68-1, at 16; id. at 10 (“[I]t
appears . . . that Petitioner intended that curtain walls which
are composed of curtain wall units which enter the United States
unassembled, and meet the requirements of the ‘finished goods
kit’ exclusion language of the scope, could be considered a
‘finished goods kit’ and be excluded from the scope . . . .”).
Consol. Court No. 14-00106                                                         Page 38


[‘at the time of importation’] [means] in relation to

‘unassembled unitized curtain walls’ or any other product.”128

                           Commerce looks to other documents of varying relevance

and reliability for confirmation of its interpretation.                           First,

Commerce relies on another (k)(1) material, a preliminary scope

memorandum from the investigation, in which Commerce found that

“unitized curtain wall and its assorted parts” (i.e., “the

separately packaged assorted component parts (an aluminum frame

and aluminum bracket)”) were within the scope of the AD&CVD

Orders as parts for curtain walls.129                           This determination is of

limited relevance because it was made before the final

determination in which Commerce amended the scope of the AD&CVD

Orders to clarify that subassemblies could fall within the

finished goods kit exclusion.130                           Further, the product described



128     Id. at 11-12.
129Aluminum Extrusions from the [PRC], A-570-967 & C-570-968
(Oct. 27, 2010) (preliminary determination comments on the scope
of the investigations) at 11, reproduced in Redetermination, ECF
No. 68-2, at Attach. 2. Specifically, Commerce “preliminarily
determined that curtain wall components exported by [Yuanda] are
covered by the scope because [Yuanda] has not established that
it imports its merchandise in a kit that contains at the time of
importation all of the necessary parts to fully assemble a
finished good.” Id. at 11-12. Commerce notes that the
Petitioner supported the agency’s position. Id. at 11;
Redetermination, ECF No. 68-1, at 13.
130See Final AD I&D Mem., supra note 10, at 18 (amending, at
Petitioner’s request, to add the phrase “‘unless imported as
part of the “kit” defined further below’ at the end of the last
sentence in the fourth paragraph so that the resulting sentence
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 39


in this preliminary determination (“separately packaged assorted

parts” of curtain walls) is parallel to that discussed in the

CWC Scope Ruling (curtain wall units and parts),131 in contrast

to the complete curtain wall units imported pursuant to a sales

contract.132                       Commerce does not account for these differences in

its evaluation of the determination.

                           Second, Commerce argues that its finding that complete

curtain wall units imported pursuant to a sales contract are not

excluded as a finished goods kit unless “all of the necessary

parts to assemble the finished good . . . [are] imported at the

same time, as part of the same entry,”133 is in keeping with its

prior scope determinations.134                                                      Commerce cites to three final

scope rulings discussing the finished goods kit exclusion.135


reads: ‘The scope includes aluminum extrusions that are attached
(e.g., by welding or fasteners) to form subassemblies, i.e.,
partially assembled merchandise unless imported as part of a
“kit” defined further below.’”).
131     CWC Scope Ruling, supra note 36, at 1.
132     Yuanda Scope Ruling, supra note 3, at 1.
133     Redetermination, ECF No. 68-1, at 15.
134These are also (k)(1) materials. See Mid Continent Nail
Corp., 725 F.3d at 1302 (quoting 19 C.F.R. § 351.225(k)(1)).
135Redetermination, ECF No. 68-1, at 15 (citing Aluminum
Extrusions from the [PRC], A-570-967 & C-570-968 (Dep’t of
Commerce Aug. 17, 2012) (final scope ruling on Solarmotion
controllable sunshades) (“Solarmotion Scope Ruling”) at 11;
Aluminum Extrusions from the [PRC], A-570-967 & C-570-968 (Dep’t
of Commerce Dec. 13, 2011) (final scope ruling on Ameristar
Fence Products’ aluminum fence and post parts) (“Ameristar Scope
Ruling”) at 6; Aluminum Extrusions from the [PRC], A-570-967 &
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 40


While all three rulings do emphasize the “at the time of

importation” requirement,136 all three were decided before

Commerce revised its interpretation of the AD&CVD Orders to

provide for situations where it was unreasonable to require all

necessary parts “at the time of importation,” i.e., the

subassemblies exclusion.137                                                 What is perhaps more telling is that

Commerce does not address the other prior scope rulings that go

against its determination here, i.e., that did not require all

parts for the complete downstream product “at the time of

importation” because the products at issue were subassemblies.138

                           Third, Commerce offers a letter, written by

Petitioners specifically for this scope proceeding, supporting





C-570-968 (Dep’t of Commerce Dec. 9, 2011) (final scope ruling
on window kits) (“Window Kits Scope Ruling”) at 5).
136Solarmotion Scope Ruling, supra note 135, at 11; Ameristar
Scope Ruling, supra note 135, at 6; Window Kits Scope Ruling,
supra note 135, at 5.
137In fact, none of these cases even provide discussion of
whether the products at issue there were subassemblies, much
less whether they could be excluded as such. See Solarmotion
Scope Ruling, supra note 135; Ameristar Scope Ruling, supra note
135; Window Kits Scope Ruling, supra note 135.
138See, e.g., Valeo Redetermination, Ct. No. 12-00381, ECF No.
20-1, at 8-9; SMVC Scope Ruling, supra note 24, at 6-7 (however
this ruling is discussed at Redetermination, ECF No. 68-1, at
35-36, where Commerce declines to apply the subassembly
exclusion); Traffic Brick Scope Ruling, supra note 88, at 10;
Law St. Scope Ruling, supra note 88, at 9; Diamond Scope Ruling,
supra note 88, at 9.
Consol. Court No. 14-00106                                   Page 41


Commerce’s position,139 and a news article quoting Petitioner’s

counsel as having said that a curtain wall system would have to

“contain all of the window glass at the time of entry to be

excluded.”140    Neither of these documents is appropriate support,

as they are not (k)(1) materials.141    The former is a post hoc

rationalization made for the purposes of litigation; the latter

Commerce itself has previously dismissed as irrelevant.142

             In contrast, Commerce does not consider the ample

evidence on the administrative record defining and explaining

the product at issue here.    Commerce does not consider whether a

single-entry, unitized curtain wall is a real product, outside

the realm of its own ungainly semantic gymnastics, that is

imported with any regularity into the United States.143    This



139     Aluminum Extrusions from the [PRC], A-570-967 & C-570-968
(June 7, 2013) (rebuttal comments in response to Yuanda’s
Comments regarding Commerce’s Initiation of a formal scope
inquiry), reproduced in Redetermination, ECF No 68-2, at Attach.
4.
140Redetermination, ECF No. 68-1, at 14 (quoting “Petitioner’s
counsel in National Glass Magazine).
141   See 19 C.F.R. § 351.225(k)(1).
142See Yuanda Scope Ruling, supra note 3, at 26 (“[W]e do not
find that this quote, which was not on the record of the
investigation, can be considered to embody the intent of the
petitioner.”).
143See CWC Scope Ruling, supra note 36, at 6 (“Petitioners
reiterate CW[C]’s contention that it is simply not possible for
a complete curtain wall to enter as a ‘kit’ because the entire
installation process is designed to work with other parts to
form a larger structure and represent a collection of individual
                                             (footnote continued)
Consol. Court No. 14-00106                                                                                                                                    Page 42


makes Commerce’s interpretation unreasonable.144                                                                                      Indeed,

Petitioners themselves provided in other (k)(1) materials that

“it is simply not possible for a complete curtain wall to enter

as a ‘kit’” – i.e., all at once.145                                                               Petitioners could not have

intended to use a product as an example in their petition that,

by Petitioners’ own admission, does not exist.                                                                                     “An exclusion

from a scope determination must . . . encompass merchandise

which is or may be imported into the United States in order to

act as a meaningful exclusion; anything less renders the

parts that comprise a single element as opposed to complete
system.” (footnotes omitted)); Yuanda Scope Request, ECF No. 83
at Tab 1, at 8-9 (indicating that Yuanda’s practice is to
deliver unitized curtain wall, given its size and complexity, to
job sites in phases); Ex. 1 to Yuanda Scope Request, ECF No. 83
at Tab 1 (providing illustration of curtain wall units shipped
to building sites in sets to assembled into curtain wall
systems); Aluminum Extrusions from the [PRC], A-570-967 & C-570-
968 (Apr. 26, 2013) (comments in opposition to the scope request
regarding complete curtain wall units) at 20, reproduced in
Yuanda’s App., ECF No. 83-1 at Tab 2 (“[C]urtain wall units are
imported with many entries in a multitude of containers and
numerous shipments to construct a complete curtain wall for a
particular project.”).
144Cf. Polites v. United States, __ CIT __, 755 F. Supp. 2d
1352, 1357 (2011) (finding that Commerce’s interpretation of an
order was “unreasonable” because “nothing in the record
demonstrates merchandise matching this definition is imported
into the United States or is even possibly imported into the
United States”).
145CWC Scope Ruling, supra note 36, at 6 (“Petitioners reiterate
CW[C]’s contention that it is simply not possible for a complete
curtain wall to enter as a ‘kit’ because the entire installation
process is designed to work with other parts to form a larger
structure and represent a collection of individual parts that
comprise a single element as opposed to complete system.”
(footnotes omitted)).
Consol. Court No. 14-00106                                   Page 43


exclusion hollow and improperly changes the meaning of the

exclusion.”146   Even if such a product existed but was rarely

imported, insisting upon such an interpretation would render the

exclusion “insignificant, if not wholly superfluous.”147





146 Polites, __ CIT at __, 755 F. Supp. 2d at 1357.

147See TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (citation
omitted). Commerce expresses concern that, if the exclusion
were made to cover “numerous imports over an unspecified period
of time,” of curtain wall units imported pursuant to a contract
to supply a curtain wall, “it would appear to be very difficult
if not impossible, for CBP to administer, monitor, and enforce
an exclusion to the [AD&CVD Orders] which would be contingent on
piecemeal imports over a period of time.” Redetermination, ECF
No. 68-1, at 17.   Plaintiffs point out that such monitoring
could be as simple as referencing the entry documents: Yuanda
produces and exports curtain wall units pursuant to a contract
to supply a curtain wall. Each commercial invoice accompanying
Yuanda’s 7501 forms is coded to a specific contract. “Hence, to
determine whether the complete curtain wall was delivered, it is
only a matter of tying the commercial invoices to the contract
terms.” Yuanda Br., ECF Nos. 79 & 80, at 24 (citing Ex. 3 to
Yuanda Scope Request, ECF No. 83 at Tab 1 (providing example
contract for unitized curtain wall to be delivered in phases);
see also Jangho Br., ECF No. 78, at 12-17.
     As Commerce states elsewhere, ease or difficulty of
administration is not a valid basis for scope rulings.
Redetermination, ECF No. 68-1, at 37 (Commerce’s scope
determination must be based “on the language of the scope of the
[AD&CVD Orders], the language of the Petition, the underlying
investigation, the Department’s interpretation of the scope in
other scope rulings, and the factual information on the record
of this proceeding.”). It is not a question of policy, as
Defendant suggests, see Def.’s Br., ECF No. 85, at 33, but
rather a list of factors prescribed by regulation, see 19 C.F.R.
 § 351.225(k) – and expressio unius est exclusio alterius.
Consol. Court No. 14-00106                                      Page 44


             Commerce has therefore “entirely failed to consider an

important aspect of the problem,”148 i.e., the actual nature of

the products it is considering. “The substantiality of evidence

must take into account whatever in the record fairly detracts

from its weight.”149    Commerce has not done so here, leaving its

ruling unreasonable.

          C. Commerce Has Made Arbitrary Distinctions Between
             Subject and Non-Subject Products

             An agency determination is arbitrary and capricious if

the agency has treated similarly situated parties or products

differently “without reasonable explanation.”150

             Here, in finding that only unitized curtain walls

entered with all parts on a single 7501 form are excluded from

the scope of the AD&CVD Orders, Commerce makes several

distinctions between similar products without reasonable

explanation.    First, Commerce has drawn a distinction between


148     Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut.
Auto. Ins. Co., 463 U.S. 29, 43 (1983). Although the Court
in State Farm was discussing the “arbitrary or capricious”
(rather than the “substantial evidence”) standard of review,
this reasoning is also relevant here because an agency
determination that is arbitrary is ipso facto unreasonable. See,
e.g., Ward v. Sternes, 334 F.3d 696, 704 (7th Cir. 2003) (noting
that “a decision [that] is so inadequately supported by the
record as to be arbitrary [is] therefore objectively
unreasonable”) (quotation marks and citations omitted).
149   Universal Camera, 340 U.S. at 488.
150Consol. Bearings Co. v. United States, 348 F.3d 997, 1007
(Fed. Cir. 2003) (citation omitted).
Consol. Court No. 14-00106                                     Page 45


(hypothetical) small (i.e., capable of being entered on a single

7501 form) and all other curtain wall systems.    This distinction

is not based on any quality or aspect of the constituent units,

indeed the units could be identical in all but number, and

thereby treats products that are effectively the same

differently under the AD&CVD Orders.

             Similarly, Commerce’s ruling draws an arbitrary

distinction between window walls and curtain walls.    Window

walls are excluded from the scope of the AD&CVD Orders under the

finished goods kit exclusion.151 Under Commerce’s interpretation,

unitized curtain walls, largely, if not entirely, are not.152

While Commerce acknowledges that the Plaintiffs allege

similarities between window walls and curtain walls, Commerce

considers these similarities irrelevant, finding the differences

dispositive.153

             Commerce finds two differences: First, “unlike parts

for curtain walls, such as curtain wall units, window walls are

not specifically identified as subject merchandise in the scope




151     Aluminum Extrusions from the [PRC], Final Scope Ruling, A-
570-967 & C-570-968 (Dep’t of Commerce June 19, 2014) (final
scope ruling on finished window [wall] kits) (“Window Wall Scope
Ruling”), at 1.
152   Redetermination, ECF No. 68-1, at 16.
153   Id. at 32.
Consol. Court No. 14-00106                                            Page 46


of the [AD&CVD Orders].”154            However, this distinction has no

real meaning.       That parts for curtain walls are within the scope

does not prevent unassembled unitized curtain wall from being

excluded.155      Moreover, industry publications on the record show

that window walls are a type of curtain wall156 – such that

“parts for . . . curtain walls” means parts for window walls as

well, making both listed as subject merchandise.            Second,

Commerce finds that curtain walls and window walls “are not

comparable for purposes of [Commerce’s] analysis,” because

“[w]indow walls, once assembled, are each a finished good”

whereas curtain wall units “which attach to other curtain wall


154     Redetermination, ECF No. 68-1, at 33.
155See Petition, ECF No. 83-3 at Tab 10, at Ex. I-5 (listing
“unassembled unitized curtain walls” as excluded from the scope
under the finished goods kit exclusion). Cf. Eckstrom Indus.,
Inc. v. United States, 254 F.3d 1068, 1073 (Fed. Cir. 2001)
(“The Government’s argument essentially reduces to an
interpretation of the Order as covering any stainless steel
butt-weld pipe fittings under fourteen inches in diameter. This
construction is belied by the terms of the Order itself, which
indicate that it applies only to ‘certain stainless steel butt-
weld pipe fittings, whether finished or unfinished, under 14” in
diameter.’” (emphasis original)).
156 A window wall is “[a] type of metal curtain wall installed
between floors or between floor and roof and typically composed
of vertical and horizontal framing members, containing operable
sash or ventilators, fixed lights or opaque panels or any
combination thereof.” AAMA Manual, ECF No. 83 at Tab 1, at 2.
Further, the terms window wall and curtain wall “still mean
different things to different people. Often they are used
interchangeably with no clear distinction being made between
them.” Id. Their meanings are “interrelated and overlapping.”
Id.
Consol. Court No. 14-00106                                          Page 47


units, are parts for the finished good, the curtain wall

itself.”157     This is again, a meaningless distinction that does

not consider the definition of the product at issue here and

belies the similarities between the two products, namely, that

both are interlocking, aluminum-framed, widow-like products

shipped in phases and installed in sections.158            Indeed, Commerce

makes no effort to account for the evidence on the record

indicating that window walls and curtain walls are substantially

similar products.

              Accordingly, Commerce has treated similarly situated

products differently without reasonable explanation.



                                     CONCLUSION

               As Commerce anticipated elsewhere, an interpretation

of “finished goods kit” that requires “all parts to assemble the

ultimate downstream product” to enter at the same time, on the

same 7501 Form, “where the ultimate downstream product” is “a

fire truck” or “a larger structure, such as a house” or an

entire building façade, has led to an “unreasonable,” if not


157     Redetermination, ECF No. 67, at 33-34.
158Window Wall Scope Ruling, supra note 151, at 5 (“A window
wall must be installed in sections and [is] imported as
completed sections in phases with each phase comprising of
approximately 30 or more cartons.”); Yuanda Scope Request, ECF
No. 83 at Tab 1, at 8; AAMA Manual, ECF No. 83 at Tab 1, at 2,
5.
Consol. Court No. 14-00106                                           Page 48


“absurd” result.159

            Accordingly, the court remands to Commerce for further

consideration in accordance with this opinion.             Commerce shall

have until March 22, 2016 to complete and file its remand

redetermination.     Plaintiffs shall have until April 5, 2016 to

file comments.     Defendant and Defendant-Intervenor shall have

until April 15, 2016 to file any reply.160

            IT IS SO ORDERED.



                                          /s/Donald C. Pogue
                                          Donald C. Pogue, Senior Judge
Dated: February 9, 2016
       New York, NY





159     See SMVC Scope Ruling, supra note 24, at 7.
160Because the court remands, it does not reach the issue of
whether Commerce must clarify or amend the instructions issued
to CBP regarding the suspension date of the entries at issue to
include Plaintiffs Jangho and Permasteelisa. See Jangho’s Br.,
ECF No. 78, at 23; Permasteelisa’s Br., ECF No. 39, at 38.
