SHENYANG YUANDA ALUMINUM

INDUSTRY ENGINEERING CO.,

Plaintiff,

v.

UNITED STATES, 

Defendant.

Slip Op. 16 - 94

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION and ORDER 

[Redetermination remanded for further consideration in 

accordance with this opinion.] 

Dated: October 6, 2016

James R. Cannon, Jr., John D. Greenwald, and Thomas M. 

Beline, Cassidy Levy Kent, LLP, of Washington, DC, for Plaintiff

Yuanda.

Kristen S. 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., 

1 This action is consolidated with court numbers 14-00107 and 

14-00108. Order, July 16, 2014, ECF No. 28. 

Before: Donald C. Pogue,

 Senior Judge 

Consol. Court No. 14-001061
Consol. Court No. 14-00106 Page 2 

Assistant Director. Of counsel was Scott D. McBride, Senior 

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 DefendantIntervenor, the Curtain Wall Coalition.

Pogue, Senior Judge: This action comes again before 

the court following a second remand and redetermination.

In prior proceedings, the 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”), challenged the scope 

determination,2 made by the 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, was 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 

 

(footnote continued) 
Consol. Court No. 14-00106 Page 3 

In the second redetermination, however, Commerce has, 

under protest, found Yuanda’s unitized curtain wall excluded 

from the scope of the Orders, resulting in a reversal of 

positions. Now Defendant-Intervenors, Walters & Wolf, 

Architectural Glass & Aluminum Company, and Bagatelos 

Architectural Glass Systems, Inc. (collectively the “Curtain 

Wall Coalition” or “CWC”) challenge Commerce’s determination. 

Def.-Intervenors’ Comments in Opp’n to Commerce’s Final Results 

of Redetermination Filed on May 13, 2016, Pursuant to Ct. 

Remand, ECF No. 113 (“CWC Br.”).

Review of Commerce’s re-determination involves 

consideration of prior decisions, the descriptions of the 

merchandise contained in the petition, and the requirements of 

Commerce’s subassemblies test for exclusion from the Order, all 

of which will be discussed below.4 The court has jurisdiction 

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 

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 In accordance with the court’s remand, Commerce provided 

explanation of the distinction it has drawn between curtain wall 

and window wall units. 2d Redetermination, ECF No. 109-1, at 32-

 

(footnote continued) 
Consol. Court No. 14-00106 Page 4 

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

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

(2012).5

BACKGROUND

The issues presented here stem from the language of 

Commerce’s AD&CVD Orders on aluminum extrusions from the PRC. 

See Aluminum Extrusions from the [PRC], 76 Fed. Reg. 30,650 

(Dep’t Commerce May 26, 2011) (antidumping duty order) (“AD 

Order”); Aluminum Extrusions from the [PRC], 76 Fed. Reg. 30,653 

(Dep’t Commerce May 26, 2011) (countervailing duty order) (“CVD 

Order”). The Orders cover “aluminum extrusions,” defined as 

“shapes and forms, produced by an extrusion process, made from 

[certain] aluminum alloys.” AD Order, 76 Fed. Reg. at 30,650; 

CVD Order, 76 Fed. Reg. at 30,653. 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 

33, 61-65. The reasonableness of this explanation has not been 

challenged, see Consol. Bearings Co. v. United States, 348 F.3d 

997, 1007 (Fed. Cir. 2003) (citation omitted) (“[A]n agency 

action is... arbitrary and capricious” if the agency has treated 

similarly situated parties or products differently “without 

reasonable explanation.”), and as such is affirmed. 

5 All further citations to the Tariff Act of 1930, as amended, 

are to Title 19 of the U. S. Code, 2012 edition.

 
Consol. Court No. 14-00106 Page 5 

meet the definition of aluminum extrusions,” AD Order, 76 Fed. 

Reg. at 30,650-51; CVD Order, 76 Fed. Reg. at 30,654 (emphasis 

added), that is, they are shapes or forms made from the covered 

aluminum alloys and made by an extrusion process, AD Order, 76 

Fed. Reg. at 30,650; CVD Order, 76 Fed. Reg. at 30,653.6 The 

Orders also cover “aluminum extrusion components that are 

attached (e.g., by welding or fasteners) to form subassemblies, 

i.e., partially assembled merchandise.” AD Order, 76 Fed. Reg. 

at 30,651; CVD Order, 76 Fed. Reg. at 30,654.

The Orders exclude finished goods – that is, “finished 

merchandise containing aluminum extrusions as parts” – so long 

as such merchandise is “fully and permanently assembled and 

6 Commerce claims that it is significant that the “parts” 

language precedes the “subassembly” language (though the agency 

does not say why or to what effect), and asserts that the Orders 

provide “specific examples of parts of final finished products 

that are assembled after importation: window frames, door 

frames, solar panels, curtain walls and furniture.” 2d 

Redetermination, ECF Nos. 109-1 & 110-1, at 24. However, this 

is not a plain list of example parts. At most, the list 

arguably includes both parts (“window frames” and “door frames”) 

and finished goods the parts of which are covered (“solar 

panels, curtain walls, [and] furniture”). More likely, the list 

is intended to be entirely of finished goods assembled after 

importation. This is because it ordinarily would noy be 

possible to perform an extrusion process on a basic form (bar, 

rod, etc.) to create an entire window or door frame. To 

"extrude" is to push or draw the basic form through the die to 

obtain the desired cross section. And the Order covers only 

aluminum extrusions. Indeed, Commerce itself goes on to list 

“solar panels” as a finished (and therefore excluded) product.

Id. at 25. 

 
Consol. Court No. 14-00106 Page 6 

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.” AD Order, 76 Fed. Reg. 

at 30,651; CVD Order, 76 Fed. Reg. at 30,654.7 The Orders also 

exclude “finished goods containing aluminum extrusions that are 

entered unassembled in a ‘finished goods kit.’” Id. 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 is’ into a finished product.”8

Subassemblies may also be excluded from the Orders, 

provided that they enter as part of a “finished goods kit.”9

7 Aluminum extrusions “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. 

8 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.

9 Id.; 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 & C570-968 (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. 

 
Consol. Court No. 14-00106 Page 7 

Further, a subassembly may be excluded pursuant to the 

“subassemblies test” exclusion devised by Commerce in 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)). 

The Orders have been addressed in several relevant 

scope proceedings. Prior to the Yuanda Scope Ruling at issue 

here, Commerce issued 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”). There, Commerce determined that 

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

that “fall short of the final finished curtain wall that 

envelopes an entire building structure,” including, but not 

limited to individual curtain wall units (i.e., “modules that 

are designed to be interlocked with [each other], like pieces of 

a puzzle”), were within the scope of the Orders. CWC Scope 

Ruling at 3, 10. Both this Court and the CAFC affirmed, holding 

that “[a] single [curtain wall] unit” is not a whole “curtain 

wall,” and as such, is a “part” or “subassembly” of a curtain 

wall. Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United 
Consol. Court No. 14-00106 Page 8 

States, 776 F.3d 1351, 1357-58 (Fed. Cir. 2015) (“Yuanda II) 

(citing Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United 

States, __ CIT __, 961 F. Supp. 2d 1291, 1298-99 (2014) (“Yuanda 

I”)).10

In the Yuanda Scope Ruling, Commerce determined that 

complete curtain wall units sold “pursuant to a contract to 

supply a complete curtain wall system” were within the scope of 

the Orders. Yuanda Scope Ruling at 1 (footnote omitted).

Yuanda, Jangho, and Permasteelisa appealed the ruling to this 

Court. In their initial motions for summary judgment on appeal, 

Plaintiffs brought attention to the fact that Commerce had not 

considered the “description of the merchandise contained in the 

[P]etition,” see 19 C.F.R. § 351.225(k)(1), in particular, an 

exhibit from that Petition that listed “unassembled unitized 

curtain walls” as non-subject merchandise under the “finished 

goods kit” exclusion. Petition, ECF No. 83-3 at Tab 10, at 

Exhibit I-5.11 Commerce requested and was granted a voluntary 

10 Commerce 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 nonPRC extrusions). However, this determination is not relevant 

here because, unlike there, the country of origin of Yuanda’s 

aluminum extrusions is not at issue. 

11 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 

 

(footnote continued) 
Consol. Court No. 14-00106 Page 9 

remand to consider this evidence. Def.’s Consent Mot. for 

Voluntary Remand, ECF No. 49; Order, Dec. 9, 2014, ECF No. 50.

On redetermination, Commerce found that, based on the 

Petition, 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. Redetermination I, ECF No. 68-

1, at 16. The court remanded again, finding that Commerce’s 

determination was not in accordance with law and unreasonable. 

Shenyang Yuanda Aluminum Indus. Eng’g Co. v. United States, __ 

CIT __, 146 F.Supp.3d 1331 (2016) (“Yuanda III”). The resultant 

redetermination is now at issue here. Redetermination II, ECF 

Nos. 109-1 (conf. ver.) & 110-1 (pub. ver.).

STANDARD OF REVIEW 

The court will sustain Commerce’s determination on 

remand if it is in accordance with law, supported by substantial 

evidence on the record, and complies with the court’s remand 

order. 19 U.S.C. § 1516a(b)(1)(B)(i); Jinan Yipin Corp., Ltd. v. 

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). 

 
Consol. Court No. 14-00106 Page 10 

United States, 33 CIT 934, 936, 637 F. Supp. 2d 1183, 1185 

(2009).

DISCUSSION

Three issues persist following the second 

redetermination: first, whether Commerce’s determination is 

precluded by stare decisis and res judicata; second, whether 

Commerce’s reading of the Orders is based on a reasonable 

reading of the record evidence as laid out in 19 C.F.R. § 

351.225(k)(1), including specifically the descriptions of the 

merchandise contained in the petition; and third, whether 

Commerce’s application of the subassemblies test exclusion is in 

keeping with Commerce’s prior applications. Each is discussed 

in turn below. 

I. The Effect of Stare Decisis and Res Judicata. 

The CWC argues that the CAFC “in Yuanda II, decided 

that curtain wall units generally, and Yuanda’s curtain wall 

units in particular, are subject to the scope,” such that 

Commerce is precluded “from finding otherwise” pursuant to the 

doctrines of stare decisis and res judicata. Def.’s-Intervenor’s 

Br., ECF No. 113, at 15 (citing Yuanda II, __ CIT at __, 776 

F.3d at 1358-59). Stare decisis is “the idea that today’s Court 

should stand by yesterday’s decisions,” Kimble v. Marvel Entm't, 

LLC, __ U.S. __135 S. Ct. 2401, 2409 (2015), and res judicata – 

the doctrine of claim preclusion – “bars ‘repetitious suits 
Consol. Court No. 14-00106 Page 11 

involving the same cause of action’ once ‘a court of competent 

jurisdiction has entered a final judgment on the merits,’” 

United States v. Tohono O’Odham Nation, 563 U.S. 307, 315 (2011) 

(quoting Commissioner v. Sunnen, 333 U.S. 591, 597 (1948)).

Here, while the CAFC and the CIT affirmed Commerce’s 

finding, in the scope ruling requested by the CWC, that curtain 

wall units were parts and subassemblies for curtain walls and 

therefore within the scope of the Orders, see 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”); Yuanda II, 776 F.3d at 1357-58 (citing Yuanda I, __ 

CIT __, 961 F. Supp. 2d at 1298-99)),12 Commerce expressly 

12 The CWC incorrectly relies on the “parts” language, read in 

isolation. But curtain wall units cannot plausibly be described 

as “parts for final finished products that are assembled after 

importation” that “otherwise meet the definition of aluminum 

extrusions” – i.e., are “shapes and forms, produced by an 

extrusion process, made from [certain] aluminum alloys.” AD 

Order, 76 Fed. Reg. at 30,650-51; CVD Order, 76 Fed. Reg. at 

30,653-54; see Aluminum Extrusions Fair Trade Comm. v. United 

States, 37 ITRD 2909 (Ct. Int'l Trade 2016) (“With respect to 

the first two sentences of the above-quoted language, the screen 

printing frames are not plausibly described as ‘parts for final 

finished products that are assembled after importation’ that 

‘otherwise meet the definition of aluminum extrusions.’ Even 

were it presumed that the screen printing frames are ‘parts for 

final finished products,’ they would not answer to the 

description ‘parts that otherwise meet the definition of 

aluminum extrusions.’ As discussed above, the definition of 

‘aluminum extrusions’ is ‘shapes and forms produced by an 

extrusion process ...,’” AD Order, 76 Fed.Reg. at 30,650; CVD

 

(footnote continued) 
Consol. Court No. 14-00106 Page 12 

declined to consider the finished goods kit exclusion and 

Yuanda’s specific products, CWC Scope Ruling at 9. The CIT 

affirmed this decision and the CAFC did not consider the issue. 

Yuanda 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). As such, there is no prior 

decision, much less final judgment, precluding Commerce’s 

determination here. Commerce is not precluded by stare decisis 

and res judicata from considering the finished goods kit 

exclusion and the subassemblies test as applied to Yuanda’s 

products, or finding one way or the other on these issues. 

II. The (k)(1) Materials 

When there is a question as to “whether a particular 

product is included within the scope of an antidumping or 

countervailing duty order,” 19 C.F.R. § 351.225(a), Commerce 

Order, 76 Fed.Reg. at 30,653, which after extrusion may be 

subjected to “drawing, fabricating, and finishing.” AD Order, 76 

Fed.Reg. at 30,650; CVD Order, 76 Fed.Reg. at 30,654.”).

Notably, the court of appeals did not read or rely on the 

‘parts’ language in isolation. It follows that proper 

consideration of the reach of Yuanda I and Yuanda II must focus 

on the “subassemblies” language.

 
Consol. Court No. 14-00106 Page 13 

first looks to the plain language of the underlying order, 

Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed. 

Cir. 2002). If the terms of the order are dispositive, then the 

order governs. Tak Fat Trading Co. v. United States, 396 F.3d 

1378, 1383 (Fed. Cir. 2005). If the order “contains language 

that must be interpreted,” id., then Commerce “consider[s] the 

regulatory history, as contained in the so-called ‘(k)(1) 

materials’” — named for the regulatory subsection in which they 

appear. Mid Continent Nail Corp. v. United States, 725 F.3d 

1295, 1302 (Fed. Cir. 2013). 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.” 19 C.F.R. § 351.225(k)(1).13

In Yuanda III, the court remanded to Commerce, inter

alia, because the agency had failed to support its determination 

13Smith 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.”). If 

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

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

which the product is advertised and displayed.” 19 C.F.R. § 

351.225(k)(2).

 
Consol. Court No. 14-00106 Page 14 

that only single-entry, unitized curtain walls were excluded 

from the scope of the Orders with substantial evidence – i.e., 

with a reasonable reading of the (k)(1) materials. Yuanda III, 

__ CIT at __, 146 F. Supp. 3d at 1349-1354.

In its first redetermination, Commerce relied on the 

Petition, which listed “unassembled unitized curtain walls” as 

an example of a product excluded as a finished goods kit, to 

reach the conclusion that only single-entry, unitized curtain 

walls could be excluded from the scope of the Orders. 

Redetermination I, ECF No. 68-1, at 16; id. at 10. The court 

remanded because Commerce’s reading of the Petition, and 

therefore Orders pursuant to 19 C.F.R. § 351.225(k)(1), was not 

informed by the record. Specifically, Petitioners themselves 

had conceded that there is no such thing as a single-entry, 

unitized curtain wall. Yuanda III, __ CIT at __, 146 F. Supp. 3d 

at 1349-1354.14 It follows that Petitioners could not have 

intended to use a product as an example that, by Petitioners’ 

own admission, does not exist. Id. By ignoring the actual 

nature of the product at issue, by failing to consider the 

14 CWC Scope Ruling 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 15 

evidence on the administrative record defining and explaining 

the product, Commerce made a counterfactual reading of the 

Petition and then supported its interpretation of the Orders 

with that counterfactual reading. Id. Commerce must contend 

with the actual record evidence before it and offer a reasoned 

explanation for its determination based on that evidence. 

Commerce did not do so in the first redetermination, making 

remand appropriate. 

In its second redetermination, rather than actually 

address these evidentiary problems, Commerce quotes a narrow 

portion of Yuanda III out of context, and concludes: 

[I]t appears the Court’s holding is clear that if the 

only way a particular product in a particular 

industry, in this case the curtain wall industry, can 

benefit from the “finished goods kit” exclusion, as 

interpreted by [Commerce], is to fulfill criteria 

which the evidence on the record does not suggest 

anyone in that industry currently fulfills, then 

[Commerce’s] determination is flawed and unreasonable, 

even if other industries currently fulfill those 

criteria and benefit from the exclusion. 

Redetermination II, ECF No. 109-1, at 103; see id. at 34-38.

The agency thereby finds itself compelled to exclude Yuanda’s 

unitized curtain wall from the scope of the Orders “absent 

evidence that any exporter or importer in the curtain wall 

industry ships its curtain wall units in a manner that would 

permit parties to benefit from the ‘finished goods kit’ 
Consol. Court No. 14-00106 Page 16 

exclusion to the [Orders]” and “[n]o such evidence is present on 

the record.” Id. at 104. 

Commerce’s analysis here is both too broad and too 

narrow. Too broad in that it creates a general rule rather than 

choosing to follow applicable regulatory provisions, see 19 

C.F.R. § 351.225(k), and address the specific evidentiary 

problem put before it on remand that prevented its determination 

from being supported by substantial evidence, King Supply Co., 

LLC v. United States, 674 F.3d 1343, 1349-50 (Fed. Cir. 2012) 

(reviewing consideration of (k)(1) materials under the 

substantial evidence standard); Yuanda III, __ CIT at __, 146 F. 

Supp. 3d at 1349-1354 (discussing the evidentiary problems 

presented by Commerce’s analysis of the (k)(1) materials). Too 

narrow in that, while it, correctly, goes so far as to find that 

there is no such product as a single-entry, unitized curtain 

wall, see Redetermination II, ECF No. 109-1, at 104, it fails to 

address what this means in the context of the (k)(1) materials

– specifically, the express exclusion of “unassembled unitized 

curtain wall,” which, based on reality (or at least the 

administrative record) must be something other than a singleentry, whole curtain wall, in the Petition, see Petition, ECF 

No. 83-3 at Tab 10, at Exhibit I-5, because no such product 

exists.
Consol. Court No. 14-00106 Page 17 

Commerce must “consider the regulatory history, as 

contained in the [] ‘(k)(1) materials.’” Mid Continent Nail, 725 

F.3d at 1302.15 This includes an informed16 and meaningful17

assessment of the Petition. 19 C.F.R. § 351.225(k)(1).18

15 In making a scope determination, Commerce must “utilize[] and 

abide[] by the statutory and regulatory provisions that 

authorize [it] to investigate [scope issues].” AMS Associates, 

Inc. v. United States, 737 F.3d 1338, 1344 (2013). 

16 See Universal Camera, 340 U.S. at 488 (“The substantiality of 

evidence must take into account whatever in the record fairly 

detracts from its weight.”); State Farm, 463 U.S. at 43 

(“Normally, an agency rule would be arbitrary and capricious if 

the agency has . . . entirely failed to consider an important 

aspect of the problem [or] offered an explanation for its 

decision that runs counter to the evidence before the agency . . 

. .”); see also 19 C.F.R. § 351.225(k)(1) (“in considering 

whether a particular product is included within the scope of an 

order . . . the Secretary will take into account . . . [t]he 

descriptions of the merchandise contained in the petition, the 

initial investigation, and the determinations of [Commerce].”)

17 Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. 

Cir. 2006) (“[T]he substantial evidence standard requires review 

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

evidence, whether Commerce’s determination was reasonable.); Cf. 

Polites v. United States, __ CIT __, 755 F. Supp. 2d 1352, 1357 

(2011) (finding that Commerce’s interpretation of an order was 

“unreasonable” because Commerce read the express exclusion of 

“finished scaffolding” in an Order with “nothing in the record 

[to] demonstrate[] merchandise matching [its] definition is 

imported into the United States or is even possibly imported 

into the United States”). 

18 Cf. Fedmet Res. Corp. v. United States, 755 F.3d 912, 919 

(Fed. Cir. 2014) (“The (k)(1) sources are dispositive and 

unequivocally confirm that Fedmet's MAC bricks are not within 

the scope of the orders. [T]hese sources contain multiple 

representations made by Resco disclaiming coverage of all MAC 

bricks in general.”). 

 
Consol. Court No. 14-00106 Page 18 

Commerce has yet to do so here. Remand, accordingly, remains 

appropriate.

III. The Subassemblies Test 

While Commerce premises its ultimate determination on 

its “obligat[ion] to make a conclusion on remand that is 

consistent with [its misinterpretation of the court’s] holding 

[in Yuanda III],” in registering its “respectful[] 

disagree[ment] with the Court’s finding,” Commerce “provide[s] 

the reasons in [its] remand redetermination behind [this] 

disagreement.” 2d Redetermination, ECF No. 109-1, at 103. Chief 

among these reasons is Commerce’s application of its 

subassemblies test.

Specifically, Commerce asserts that “[u]nder [its] 

subassemblies test, [Commerce] first must determine if a 

subassembly is a finished good, either fully assembled or 

shipped in pieces as a kit, capable of installation in the 

ultimate downstream product upon importation.” 2d 

Redetermination, ECF No. 109-1, at 28. And second, whether the 

product at issue “’require[s] no further finishing or 

fabrication, such as cutting or punching’ to be installed in the 

downstream product” – whether it is “ready for installation ‘as 

is.’” Id. at 30.

Commerce reasons that since the “finished good” here 

must be an entire curtain wall, then Yuanda’s curtain wall 
Consol. Court No. 14-00106 Page 19 

units, being something less than an entire curtain wall, “cannot 

pass the subassemblies test.” Id. at 27 (citing Yuanda I, 961 F. 

Supp. 2d at 1298-99, referencing, without citation, Yuanda II); 

see also id. at 79 (“The [CAFC’s] holding in Yuanda II that 

curtain wall units are not finished merchandise, but are parts 

of curtain walls subject to the Orders, is binding precedent.”) 

(citing Yuanda I, 961 F. Supp. 2d at 1298; Yuanda II, 776 F.3d 

at 1358)). Commerce goes on to find that “curtain wall units 

are not ready to be installed upon importation ‘as is.’” Id. at 

30.

However, Commerce continues to miss the point of its 

own subassemblies test. To wit: The subassemblies test 

“revise[s] the manner in which [Commerce] determines whether a 

given product is a ‘finished good’ or ‘finished goods kit.’” 

SMVC Scope Ruling at 6-7. It scales back the definition of 

‘final’ and ‘finished,’ from a question of the “ultimate 

downstream product” to the subassembly itself, to allow for the 

exclusion of final, finished subassemblies from the scope of the 

Orders. Id.19

19 Commerce has itself articulated this difference elsewhere in 

the redetermination at issue here, as a question of the 

“ultimate downstream product” versus “finished 

good/subassembly.” Redetermination II, ECF No. 109-1, at 68. 

 
Consol. Court No. 14-00106 Page 20 

When Commerce devised the subassemblies test, it 

explained its reasoning as follows: 

In prior scope rulings, [Commerce] found that 

merchandise could not be considered a ‘finished good’ 

or ‘finished good kit’ if it was designed to work with 

other parts to form a larger structure or system. . . 

However, upon further reflection of the language in 

the scope of the Orders and for purposes of [the SMVC 

Scope Ruling], [Commerce] is revising the manner in 

which it determines whether a given product is a 

‘finished good’ or ‘finished goods kit.’ [Commerce] 

has identified a concern with this analysis, namely 

that it may lead to unreasonable results. An 

interpretation of ‘finished goods kit’ which requires 

all parts to assemble the ultimate downstream product 

may lead to absurd results, particularly where the 

ultimate downstream product is, for example, a fire 

truck. This interpretation may expand the scope of 

the Orders, which are intended to cover aluminum 

extrusions.

SMVC Scope Ruling at 6-7. Given this, Commerce, reading the 

definition of subassemblies – “partially assembled merchandise,” 

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

30,654 – and the exclusion of subassemblies as part of a 

finished goods kit20 in concert, devised a test, whereby 

subassemblies, in keeping with the intent and purpose of the 

Orders,21 may be considered a discrete subunit and excluded from 

the scope of the Orders if finished and ready for installation 

20 A subassembly may be excluded if it is a “part” of “a finished 

goods ‘kit.’” Id. at 5. 

21 The Orders “are intended to cover aluminum extrusions.” SMVC 

Scope Ruling at 7. Again, aluminum extrusions are “shapes and 

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

aluminum alloys.” AD Order, 76 Fed. Reg. at 30,650; CVD Order, 

76 Fed. Reg. at 30,653. 

 
Consol. Court No. 14-00106 Page 21 

in the final downstream product. Commerce explains the 

subassemblies test as follows: 

[T]he “subassemblies test” . . . considers whether the 

product subject to a scope proceeding constitutes a 

subassembly, i.e., “merchandise that is ‘partially 

assembled’ and inherently part of a larger whole.’

The Department explained that aluminum extrusion 

subassemblies may be excluded from the scope of the 

Orders as “finished goods” or “finished goods kits” 

provided that they require no further “finishing” or 

“fabrication” prior to assembly, contain all the 

necessary hardware and components for assembly, and 

are ready for instillation at the time of entry.

[Valeo] Final Results of Redetermination Pursuant to Ct. Remand, 

Ct. No. 12-00381, ECF No. 20-1 (“Valeo Redetermination”), at 8 

(quoting SMVC Scope Ruling at 7). 

To be clear, by Commerce’s own explanation, the 

subassemblies test requires (1) that the product at issue meets 

the definition of subassembly – i.e., “merchandise that is 

‘partially assembled’ and inherently part of a larger whole” and 

(2) such subassemblies “require no further ‘finishing’ or 

‘fabrication’ prior to assembly, contain all the necessary 

hardware and components for assembly, and are ready for 

installation at the time of entry.” Id. If it is, then it will 

be considered a “finished good” or “finished good kit” 

irrespective of Commerce’s previous definition of the finished 

good or finished good kit exclusions. SMVC Scope Ruling at 7; 

Valeo Redetermination at 10 (finding a product subject to the 
Consol. Court No. 14-00106 Page 22 

Orders under the standard finished good exclusion, but excluded 

under the subassemblies test).22

Commerce, to its own confusion, has shorthanded its 

subassemblies test both here and elsewhere as a question of 

whether the subassemblies “enter the United States as ‘finished 

goods’ or ‘finished goods kits’” and whether those 

“‘subassemblies’ require no further ‘finishing’ or 

‘fabrication.’” SMVC Scope Ruling at 7; 2d Redetermination, ECF 

No. 109-1, at 28. But, this summary must be read in the context 

of Commerce’s intent to “revis[e] the manner in which [Commerce] 

determines whether a given product is a ‘finished good’ or 

‘finished goods kit’” from a question of the “ultimate 

downstream product” to focus on the subassembly itself. SMVC 

Scope Ruling at 6-7. Commerce’s own application of the test 

22 If Commerce intends to change the subassemblies test here, 

then it must provide a reasoned explanation for that change, 

rather than denying the existence thereof. See F.C.C. v. Fox 

Television Stations, Inc., 556 U.S. 502, 515-16, (2009) (“To be 

sure, the requirement that an agency provide reasoned 

explanation for its action would ordinarily demand that it 

display awareness that it is changing position. An agency may 

not, for example, depart from a prior policy sub silentio or

simply disregard rules that are still on the books.”); Consol. 

Bearings Co. v. United States, 348 F.3d 997, 1007 (Fed. Cir. 

2003) (“the proper mode of analysis requires comparison of 

Commerce's actions before this case with Commerce's actions in 

this case. If that analysis shows that Commerce acted 

differently in this case than it has consistently acted in 

similar circumstances without reasonable explanation, then 

Commerce's actions will have been arbitrary.”). 

 
Consol. Court No. 14-00106 Page 23 

elsewhere reflects this,23 to the point of excluding products 

that had previously failed the finished goods test. See [Valeo] 

Final Results of Redetermination Pursuant to Ct. Remand, Ct. No. 

12-00381, ECF No. 20-1.

23 For example, in 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), Commerce 

parallel to its arguments here, explained that “[i]n the SMVC 

scope ruling, the Department found that ‘subassemblies’ (i.e. 

‘partially assembled merchandise’) may be excluded from the 

scope provided that they enter the United States as ‘finished 

goods’ or ‘finished goods kits’ and that the ‘subassemblies’ 

require no further ‘finishing’ or ‘fabrication.’” Id. at 14.

However, in actual application, Commerce did not determine 

whether the product at issue was a “finished good” or “finished 

good kit” by the terms of the Orders, but rather found that the 

product at issue, assembled motor cases housing stators, were 

“analogous to the merchandise examined in the scope ruling on 

SMVCs” (that is, a subassembly) and “meet[] the criteria for 

exclusion” because they were not made entirely of aluminum and 

“require no further finishing or fabrication upon importation.” 

Id. Commerce thus considered them “finished goods” under the 

subassembly test (not the standard finished goods test that 

requires a final, finished product). Id. For similar 

applications see 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 (“We disagree with Petitioners' 

argument that the fan blade assemblies are not "final finished 

goods" because they are a component of cooling towers and 

because they are imported as “parts” of such larger systems. As 

explained above, based on our examination of the language of the 

scope and our determination in the SMVC Scope Rulings, we find 

that the product in question is a "subassembly" that meets the 

criteria for a "finished good" and is therefore excluded from 

the scope of the 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 12 (“[T]he lateral arm assemblies satisfy the finished 

merchandise exclusion as subassemblies.”). 

 
Consol. Court No. 14-00106 Page 24 

This shorthand creates difficulties for Commerce here 

because it leads Commerce to adopt the approach that the 

subassemblies test expressly rejects. Commerce finds that “parts 

of curtain walls, such as Yuanda’s curtain wall units, cannot 

pass the subassemblies test because the scope specifically 

provides that they are not a finished good under the Orders” – a 

determination it premises on the fact that “the scope itself 

states that the ‘finished good’ is the curtain wall.” 2d 

Redetermination, ECF No. 109-1, at 27. That is, Commerce has 

simply examined whether the product at issue is “a part of a 

larger structure or system” (a curtain wall), rather than 

actually applying the subassembly test outlined above. As 

Commerce has already explained, “determining whether a product 

meets the exclusions for ‘finished goods’ and ‘finished goods 

kit’ simply by examining whether it is a part of a larger 

structure or system fails to account for the scope language that 

expressly allows for the exclusion of ‘subassemblies,’ i.e. 

merchandise that is ‘partially assembled’ and inherently part of 

a larger whole.” SMVC Scope Ruling at 7 (quoting AD Order, 76 

Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg. at 30,654).

Instead, based on its own prior explanation and 

application of the subassemblies test, Commerce should have 

determined (1) whether Yuanda’s curtain wall units are a 
Consol. Court No. 14-00106 Page 25 

subassembly,24 and then (2) whether Yuanda’s curtain wall units 

require “further ‘finishing’ or ‘fabrication’ prior to assembly, 

contain all the necessary hardware and components for assembly, 

and are ready for installation at the time of entry.” Valeo 

Redetermination at 8. 

As it seems to bear repeating,25 “parts for . . . 

curtain walls” are included within the scope of the Orders only 

insofar as they “otherwise meet the definition of aluminum 

extrusions.” AD Order, 76 Fed. Reg. at 30,650-51; CVD Order, 76 

Fed. Reg. at 30,654. The exclusions that inform the meaning of 

this definition must be considered. That is, even if a curtain 

wall is the final downstream product, as indicated by this Court 

and the CAFC,26 that does not prevent curtain wall units from 

24 Both this Court and the CAFC have already found that curtain 

wall units generally are subassemblies. See Yuanda II, 776 F.3d 

at 1357-58 (citing Yuanda I, __ CIT __, 961 F. Supp. 2d at 1298-

99).

25 The CWC also argues again that excluding Yuanda’s unitized 

curtain wall would render the “parts for . . . curtain walls” 

language in the Orders a nullity. This issue has already been 

addressed by the court. It does not bear further discussion. 

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

__ CIT __, 146 F. Supp. 3d 1331, 1346 n. 105 (2016). 

26 See Yuanda II, 776 F.3d at 1357-58 (citing Yuanda I, __ CIT 

__, 961 F. Supp. 2d at 1298-99) (“A single [curtain wall] unit” 

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

“subassembly” of a curtain wall.) 

 
Consol. Court No. 14-00106 Page 26 

being a subassembly27 and from being potentially excluded under 

the subassembly test.28

In its analysis, Commerce finds a number of facts 

suggesting that Yuanda’s curtain wall units may not meet the 

second requirement of the subassemblies test (that the 

subassemblies “require no further ‘finishing’ or ‘fabrication’ 

prior to assembly, contain all the necessary hardware and 

components for assembly, and are ready for inst[a]llation at the 

time of entry,” [Valeo] Final Results of Redetermination 

Pursuant to Ct. Remand, Ct. No. 12-00381, ECF No. 20-1 at 8 

(quoting SMVC Scope Ruling at 7)). 2d Redetermination, ECF No. 

109-1, at 29-31, 42-53. However, given that Commerce’s 

articulated standard for organizing and evaluating those facts 

is incorrect, remand is appropriate. Sec. & Exch. Comm’n v. 

Chenery Corp., 332 U.S. 194, 196 (1947) (“[A] reviewing court, 

in dealing with a determination or judgment which an 

administrative agency alone is authorized to make, must judge 

27 See id. 

28 Yuanda I, __ CIT at __, 961 F. Supp. 2d at 1301; see CWC Scope 

Ruling at 9; Yuanda 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.”); 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 27 

the propriety of such action solely by the grounds invoked by 

the agency. If those grounds are inadequate or improper, the 

court is powerless to affirm the administrative action by 

substituting what it considers to be a more adequate or proper 

basis.”).

CONCLUSION

For the foregoing reasons, Commerce’s determination 

must again be remanded. 

Accordingly, the court remands to Commerce for further 

consideration in accordance with this opinion. Commerce shall 

have until November 16, 2016 to complete and file its remand 

redetermination. Plaintiffs shall have until November 30, 2016 

to file comments. Defendant and Defendant-Intervenor shall have 

until December 12, 2016 to file any reply. 

IT IS SO ORDERED. 

 /s/

Donald C. Pogue, Senior Judge

Dated: October 6, 2016

 New York, NY 

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