The legal battle between Chinese and domestic curtainwall companies continues after Jangho Curtain Wall Americas Co., Permasteelisa North America Corp., Permasteelisa South China Factory and Permasteelisa Hong Kong Ltd., filed an appeal jointly against the U.S. Court of International Trade’s (CIT) December 2017 decision to uphold a U.S. Department of Commerce’s scope determination for the antidumping (AD) and countervailing duty (CVD) orders on aluminum extrusions from China. The ruling stated that Chinese curtainwall is subject to U.S. tariffs on aluminum extrusions imported from China.
According to David Spooner, partner at law firm Barnes & Thornburg, the next step in the process is for the involved parties to file briefs. Permasteelisa and Jangho’s briefs are due by mid-April. The briefs of the domestic curtainwall manufacturers Architectural Glass & Aluminum (AGA), Bagatelos and Walters & Wolf, and the Department of Justice will be due in late May. An oral argument will be scheduled after the briefing. The entire process could take up to a year.
“There’s one important point: Despite Yuanda’s vow to appeal, Yuanda did not appeal. Yuanda gave up. The entire fight involved a petition filed by Yuanda, in which Yuanda asked [the Department of] Commerce and the lower court to declare that Yuanda’s curtainwall units were exempt from the unfair trade tariffs. Permasteelisa and Jangho may not have standing to appeal a decision involving Yuanda’s products when Yuanda itself hasn’t appealed. If Permasteelisa and Jangho don’t have standing to pursue the case in Yuanda’s absence, the case may end very quickly – a lot faster than a year,” says Spooner.
John D’Amario, Northwest USA sales manager of the America division of Yuanda USA Corp. told USGNN.com™ why Yuanda chose not to appeal.
“Since the CIT’s ruling does not affect our current or future business in North America, we’ve elected not to appeal,” he says. “These days there seem to be many Americans that would like the world to stop rotating and, try as they might, we are charted for progression.”
On March 7, the Curtain Wall Coalition, a coalition of U.S. curtainwall producers that advocates for fair trade in curtainwall products, released a statement in which it vowed to defend the recent CIT decision.
“Domestic curtainwall producers are grateful for the U.S. Commerce Department’s ruling that Chinese curtainwall producers engage in unfair trade behavior. We’ve won at the lower court and anticipate a successful defense at the Court of Appeals,” said Tom Black, COO of coalition member Walters & Wolf, in the statement. “Our companies make the highest quality products in the world. We welcome competition. The law, for good reason, forbids foreign companies from engaging in anti-competitive behavior by exporting dumped and subsidized products to the U.S. We look forward to the day when Chinese companies don’t have to rely on illegally subsidized and dumped sales to be competitive in the U.S. market.”
“We’re making sure Commerce’s ruling, which has been upheld several times by the courts, is enforced. Chinese companies often try to avoid unfair trade tariffs by mislabeling, misclassifying, and transshipping their exports. Let’s be clear: If you buy Chinese curtainwall, it is subject to unfair trade tariffs. We’ll work with U.S. Customs to make sure illegal circumvention doesn’t occur in the curtainwall industry. There are very substantial penalties for buying Chinese curtainwall that has evaded unfair trade tariffs,” added Joe Brescia, the former CEO of AGA.
In December 2017, the CIT upheld the Department of Commerce’s determination that Chinese curtainwall is subject to U.S. tariffs. The ruling reads that “the orders cover, in pertinent part, ‘aluminum extrusions’ such as ‘parts’ for ‘curtainwalls’ to be ‘assembled after importation.’”
In previous litigation, the U.S. Court of Appeals for the Federal Circuit sustained a separate commerce scope determination that curtainwall units are parts of curtainwalls.
In the most recent litigation, the Chinese companies argued that curtainwall units imported under a supply contract or a complete curtainwall were partially assembled “subassemblies” of a complete curtainwall, and therefore excluded from the orders as a finished goods kit. The orders define a finished goods kit as a packaged combination of parts that contains, at the time of importation, all the necessary parts to fully assemble a final finished good and requires no further finishing or fabrication. The order excludes subassemblies provided that they are a finished good or “finished goods kit” requiring no further fabrication.
“Commerce determined that Yuanda’s entries failed the subassemblies test because Yuanda’s own documents show that the individual curtainwall units do not contain all parts necessary to install them,” reads the decision.