                                    Slip Op. 17-163

               UNITED STATES COURT OF INTERNATIONAL TRADE

SHENYANG YUANDA ALUMINUM
INDUSTRY ENGINEERING CO., YUANDA
USA CORP., JANGHO CURTAIN WALL
AMERICAS CO., PERMASTEELISA
NORTH AMERICA CORP.,
PERMASTEELISA SOUTH CHINA
FACTORY, AND PERMASTEELISA HONG
                                                      Before: Leo M. Gordon, Judge
KONG LTD.,
                                                      Consol. Court No. 14-00106
                          Plaintiffs,

         v.

UNITED STATES,

                          Defendant.

                                        OPINION

[Remand results sustained.]

                                                           Dated: December 11, 2017

       James R. Cannon, Jr., Cassidy Levy Kent (USA) LLP, of Washington, DC, argued
for Plaintiffs Shenyang Yuanda Aluminum Industry Engineering Co. and Yuanda USA
Corporation. With him on the brief was Thomas M. Beline.

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

       William E. Perry and Emily Lawson, Harris Bricken McVay LLP, of Seattle, WA,
for Plaintiff-Intervenors Permasteelisa North America Corp., Permasteelisa South China
Factory, and Permasteelisa Hong Kong Limited.

       Douglas G. Edelschick, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, DC, argued for the Defendant
United States. With him on the brief were Chad A. Readler, Principal Deputy Assistant
Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant
Director. Of counsel was Scott D. McBride, Assistant Chief Counsel for Trade
Consol. Court No. 14-00106                                                      Page 2

Enforcement and Compliance, Office of the General Counsel, U.S. Department of
Commerce, of Washington, DC.

      David M. Spooner, Barnes & Thornburg, LLP, of Washington, DC, argued for
Defendant-Intervenors Walters & Wolf, Architectural Glass & Aluminum Company, and
Bagatelos Architectural Glass Systems, Inc. With him on the brief was Christine J. Sohar
Henter.


      Gordon, Judge: This action involves a challenge to a U.S. Department of

Commerce (“Commerce”) scope determination for the antidumping and countervailing

duty orders (together, “Orders”) on aluminum extrusions from the People’s Republic of

China (“PRC”). See Aluminum Extrusions from the PRC, 76 Fed. Reg. 30,650 (Dep’t of

Commerce May 26, 2011) (antidumping duty order) (“AD Order”); Aluminum Extrusions

from the PRC, 76 Fed. Reg. 30,653 (Dep’t of Commerce May 26, 2011) (countervailing

duty order) (“CVD Order”); see also Petition for the Imposition of Antidumping and

Countervailing Duties Against Aluminum Extrusions from the PRC, PD 841 (Mar. 31,

2010), ECF No. 33 (“Petition”).

      Consolidated Plaintiffs Shenyang Yuanda Aluminum Industry Engineering

Company and Yuanda USA Corporation (together, “Yuanda”); Permasteelisa North

America Corp., Permasteelisa South China Factory, and Permasteelisa Hong Kong

Limited (together, “Permasteelisa”); and Jangho Curtain Wall Americas Company, Ltd.

(“Jangho,” and collectively with Permasteelisa and Yuanda, “Plaintiffs”), challenge a

scope ruling in which Commerce determined that Yuanda’s unitized curtain wall, i.e.,

a complete curtain wall, unitized and imported in phases pursuant to a sales contract


1
  “PD” refers to the public administrative record, and “CD” refers to the confidential
administrative record.
Consol. Court No. 14-00106                                                          Page 3

(“subject merchandise”), was within the scope of the Orders. Aluminum Extrusions from

the PRC, A-570-967 & C-570-968 (Dep’t of Commerce Mar. 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”).

       Before the court are Commerce’s Final Results of Third Redetermination,

ECF No. 133 (“Third Remand Results”), issued pursuant to Shenyang Yuanda Aluminum

Indus. Eng’g Co. v. United States, 40 CIT ___, 181 F. Supp. 3d 1348 (2016). Plaintiffs

challenge the Third Remand Results. See Consolidated Pls.’ Joint Comments on

Commerce’s Third Remand Redetermination (Feb. 16, 2017), ECF No. 138

(“Pls.’ Comments”); see also Def.’s Resp. to Comments Regarding Third Remand

Redetermination (Apr. 3, 2017), ECF No. 143 (“Def.’s Resp.”); Defendant-Intervenors’

Response Comments to Pls.’ Comments on Commerce’s Third Results of Remand

Redetermination (Apr. 14, 2017), ECF No. 150 (“Def.-Intervenors’ Comments”).

       The court has jurisdiction pursuant to Section 516A(a)(2)(B)(vi) of the Tariff Act of

1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(vi) (2012),2 and 28 U.S.C. § 1581(c)

(2012).

                    I.     Standard of Review and Legal Framework

       The court sustains Commerce’s “determinations, findings, or conclusions” unless

they are “unsupported by substantial evidence on the record, or otherwise not in

accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing




2
 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2012 edition.
Consol. Court No. 14-00106                                                       Page 4

agency determinations, findings, or conclusions for substantial evidence, the court

assesses whether the agency action is reasonable given the record as a whole. Nippon

Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006); see also Universal

Camera Corp. v. NLRB, 340 U.S. 474, 488 (1951) (“The substantiality of evidence must

take into account whatever in the record fairly detracts from its weight.”) Substantial

evidence has been described as “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United States,

407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.

197, 229 (1938)). Substantial evidence has also been described as “something less than

the weight of the evidence, and the possibility of drawing two inconsistent conclusions

from the evidence does not prevent an administrative agency’s finding from being

supported by substantial evidence.” Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620

(1966). Fundamentally, though, “substantial evidence” is best understood as a word

formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and

Practice § 9.24[1] (3d ed. 2017). Therefore, when addressing a substantial evidence issue

raised by a party, the court analyzes whether the challenged agency action

“was reasonable given the circumstances presented by the whole record.” 8A West’s Fed.

Forms, National Courts § 3.6 (5th ed. 2017).

      The language of the order is the “cornerstone” of a scope analysis and “a predicate

for the interpretive process.” Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097

(Fed. Cir. 2002). Commerce first considers the scope language of the order itself,

the descriptions contained in the petition, and how the scope was defined in the
Consol. Court No. 14-00106                                                         Page 5

investigation and in the determinations issued by Commerce and the U.S. International

Trade Commission. 19 C.F.R. § 351.225(k)(1) (2015); Duferco, 296 F.3d at 1097. If the

(k)(1) factors are dispositive, Commerce issues a final scope ruling. See Eckstrom Indus.,

Inc. v. United States, 254 F.3d 1068, 1071 (Fed. Cir. 2001).

                                     II.    Discussion

       Familiarity with the prior administrative and judicial proceedings in this action is

presumed. The Orders cover, in pertinent part, “aluminum extrusions” such as “parts” for

“curtain walls” to be “assembled after importation.” AD Order, 76 Fed. Reg. at 30,650-51;

CVD Order, 76 Fed. Reg. at 30,654. In litigation prior to this action, the U.S. Court of

Appeals for the Federal Circuit sustained a separate Commerce scope determination that

“curtain wall units” are “parts” of “curtain walls” within the scope of the Orders. See

Shenyang Yuanda Aluminum Indus. Eng'g Co. v. United States, 776 F.3d 1351, 1353

(Fed. Cir. 2015).3

       In the scope proceeding here, Plaintiffs argued that curtain wall units, imported

under a supply contract for a complete curtain wall, were partially assembled

“subassemblies” of a complete curtain wall, and therefore excluded from the Orders as a

“finished goods kit.” AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at

30,654. The Orders define a finished goods kit as “a packaged combination of parts that


3
 Defendant-Intervenors argue that the Federal Circuit’s decision in Shenyang Yuanda
controls the outcome here through either stare decisis or res judicata. See Third Remand
Results at 39-40; Def.-Intervenors’ Comments at 11-16. The court disagrees. In that
action Commerce, the Court of International Trade, and the Federal Circuit did not
address the issue of the finished goods kit exclusion and whether Plaintiffs’ curtain wall
units might satisfy the Petition example of a non-subject unassembled unitized curtain
wall. Stare decisis and res judicata are simply inapplicable.
Consol. Court No. 14-00106                                                             Page 6

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.” AD Order, 76 Fed. Reg. at 30,651;

CVD Order, 76 Fed. Reg. at 30,654. The Orders may also exclude “‘subassemblies’

(i.e., ‘partially assembled merchandise’) . . . provided that they enter the United States as

‘finished goods’ or ‘finished goods kits’ and that the ‘subassemblies’ require no further

‘finishing’ or ‘fabrication.’” Yuanda Scope Ruling at 8-9 (citing Memorandum to Christian

Marsh, Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations,

"Initiation and Preliminary Scope Ruling on Side Mount Valve Controls," dated September

24, 2012, unchanged in Memorandum to Christian Marsh, Deputy Assistant Secretary for

Antidumping and Countervailing Duty Operations, Final Scope Ruling on Side Mount

Valve Controls, dated October 26, 2012). To be excluded the putative subassembly must

(1) enter the United States meeting the definition of a subassembly (i.e., partially

assembled merchandise) of a “finished goods kit” and (2) include all of the necessary

parts to fully assemble a final finished good requiring no further finishing or fabrication.).

Id.

       Apart from a clever reimagining of its wall curtain units as a subassembly within a

complete curtain wall imported pursuant to a supply contract, what made Plaintiffs’ scope

argument interesting was an exhibit in the Petition that was not identified or considered

in the earlier scope litigation. Specifically, Exhibit I-5 to the Petition provides examples of

finished goods kits that were not intended to be covered by the scope of the Orders.
Consol. Court No. 14-00106                                                              Page 7



                                         EXHIBIT I-5

                   SUMMARY OF SUBJECT AND NON-SUBJECT
                 MERCHANDISE PRODUCT TYPES AND EXAMPLES
                          Non-Subject Merchandise

  Product Type                                     Product Examples
  Unassembled products containing                  Shower frame kits, window kits,
  aluminum extrusions, e.g. “kits” that at         unassembled unitized curtain walls
  the time of importation comprise all
  necessary parts to assemble finished
  goods



       The parties continue to wrangle over the meaning and import of the example of

“unassembled unitized curtain walls.” Commerce maintains that such a beast must be

imported as one Customs entry on a Customs Form 7501 (though possibly covering

multiple shipments); Plaintiffs maintain that the example covers its supply contract for

multiple entries over an extended period (18 months or more). See Third Remand Results

at 17-18; Pls.’ Comments at 14-15, 26. The court need not definitively resolve this issue

other than to note that Petitioners identified a type of a unitized curtain wall in the Petition

that it wanted to exclude from the Orders as a finished goods kit. Regardless of the

possible meanings of Exhibit I-5, Plaintiffs’ wall curtain units, imported pursuant to a

supply contract for a complete curtain wall, must nevertheless satisfy the “subassemblies”

test to qualify for exclusion from the Orders.

       Commerce determined that Yuanda’s entries failed the subassemblies test

because Yuanda’s own documents show that the individual curtain wall units do not

contain all parts necessary to install them. Third Remand Results at 21-36. The “curtain
Consol. Court No. 14-00106                                                             Page 8

wall units are not ready to be installed upon importation ‘as is,’ such that they could satisfy

the subassemblies test.” Id. at 30. Commerce first noted that Yuanda’s curtain wall units

are subassemblies under the scope of the Orders. Id. at 21-24. Commerce then found

that despite being subassemblies, they did not satisfy part two of the subassemblies test

because the curtain wall units were not suitable for installation “as is,” since they did not

contain “all the necessary hardware and components for assembly” and “require[d] further

‘finishing’ or ‘fabrication’ prior to assembly.” Id. at 27-36.

       Commerce’s detailed analysis of contracts and other documents submitted by

Yuanda shows that Yuanda’s entries “cannot be incorporated ‘as is’ … without further

components, fabrication and finishing.” Id. at 34. For instance, Commerce noted that

documents submitted by Yuanda, including exhibits to its scope request, included

“technical drawings that show hangers, lock panels, shims and embeds which do not

appear on the invoice or entry forms for the shipments in question.” Id. at 29-30.

Commerce identified several additional finishing procedures necessary to prepare the

curtain wall units for installation into the curtain wall that further supported Commerce’s

conclusion that the subject merchandise could not pass part two of the subassemblies

test. Id. at 30 (“In addition, the record reflects that in addition to the curtain wall units,

(1) rubber, elastomeric lineal gaskets are used to waterproof and weatherproof the

interlocking of adjacent curtain wall units and (2) the top of curtain wall unit frames must

be adjoined with a dynamic silicone that spreads the gap between the two curtain wall

units to assure a watertight installation. In addition, (3) aluminum trim is cut and punched

to fit gaps between units and to accommodate for imperfections on and/or in between
Consol. Court No. 14-00106                                                             Page 9

units. The additional procedures listed above support Commerce’s finding that curtain

wall units are not ready to be installed upon importation ‘as is,’ such that they could satisfy

the subassemblies test.”); see also id. at 31-35 (identifying a multitude of other materials

and finishing procedures necessary to complete installation of curtain wall units into a

completed curtain wall).

       Plaintiffs do not have much of a response to Commerce’s factual findings for part

two of the subassemblies test, and ultimately fail to persuade the court that Commerce’s

determination is unreasonable (unsupported by substantial evidence). See Pls.’

Comments at 23-25. Plaintiffs contend that “record evidence established that Yuanda’s

curtain wall units are ‘self-sealing,’ meaning that they are merely hung onto pre-existing

steel embeds in the concrete,” but fail to cite such record evidence and fail to directly

address Commerce’s consideration of evidence that additional sealing and finishing was

required. Id. at 24. Plaintiffs suggest that Commerce is improperly focusing on “installation

procedures rather than whether all parts necessary to complete the curtain wall units were

imported at the same time,” however, Plaintiffs’ argument is undercut by the fact that

Commerce’s consistent application of the subassemblies test has required that the

subject merchandise be ready for installation “as is.” See Third Remand Results at 27-

36.

       Plaintiffs also suggest that Commerce improperly focused on the installation of the

curtain wall units into the completed curtain wall, rather than just on the allegedly finished

nature of the curtain wall units themselves, but that argument ignores the premise of this

scope inquiry. Namely, Commerce is determining whether curtain wall units, imported
Consol. Court No. 14-00106                                                          Page 10

pursuant to a long term contract for a complete curtain wall, are within the scope of the

Orders. See Def.’s Resp. at 7-10 (responding to Plaintiffs’ arguments about the product

at issue in this proceeding, and explaining that “the only product at issue in the Third

Remand Redetermination is a complete curtain wall that is produced and exported in

‘parts’ as curtain wall units and other parts pursuant to a long term contract”).

       Finally, Plaintiffs argue that Commerce’s determination, that the subject

merchandise cannot meet the subassemblies test as it requires further finishing before

installation, is unsupported given “Commerce’s lack of citation to contrary record

evidence.” Pls.’ Comments at 24. To the contrary, Commerce relied upon and expressly

cited relevant record information contradicting Plaintiffs’ arguments as to the “finished”

nature of the subject merchandise. See Def.’s Resp. at 27-29 (highlighting Commerce’s

reasoning predicated on record evidence in various parts of the Third Remand Results at

27-36, 66-78).

       Yuanda’s merchandise are subassemblies that are not capable of being installed

“as is” without “additional finishing and fabrication." Id. Commerce reasonably concluded

that the subject merchandise does not come within the finished goods kits exclusion and

therefore falls within the scope of the Orders. Id.
Consol. Court No. 14-00106                                                   Page 11



                                   III.   Conclusion

      For the reasons stated above, the court sustains Commerce’s Third Remand

Results. Judgment will be entered accordingly.



                                                         /s/ Leo M. Gordon
                                                       Judge Leo M. Gordon



Dated: December 11, 2017
       New York, New York
