2011 Ct. Intl. Trade LEXIS 91
Ct. Int'l Trade2011Background
- Polites seeks a scope ruling on whether his steel tubes used for scaffolding fall outside the CWP Orders as finished scaffolding.
- The original scope determination defined finished scaffolding as fully assembled scaffolding or scaffolding kits; the court invalidated the fully assembled definition.
- Polites I remanded to require evidence that scaffolding kits are or may be imported, or apply §351.225(k)(2) factors when defining finished scaffolding.
- On remand, Commerce defined finished scaffolding as component parts that enter as a kit unassembled, containing all necessary parts to assemble scaffolding.
- Commerce submitted evidence: Chinese scaffolding kit websites, Eternal Star’s 2009 kit imports, and a tariff ruling indicating intent to import unassembled scaffolding.
- Commerce concluded Polites’s tubes meet the physical description but are not finished scaffolding; kits may be imported and thus are within the record.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Commerce's kit-based definition of finished scaffolding supported by the record? | Polites argues the record lacks evidence of kits importation. | Commerce relied on kit imports and intent to import as sufficient evidence. | Yes; record supports kit-based finished scaffolding definition. |
| Are scaffolding kits importable into the United States based on the record? | Polites notes only a fugitive sale and no substantiated entries. | Eternal Star data and tariff ruling show past/import-intent evidence. | Yes; evidence shows past imports and import intent for kits. |
| Does language change from petition to final order exclude Polites's merchandise? | Polites argues petition language was incorporated to include his product. | Language in the final order governs; end-use references were removed as policy. | Final order language controls; end-use references discarded reasonably. |
| Must §351.225(k)(2) factors be applied here? | Polites seeks consideration of end-use factors. | Factors are a last resort when the record lacks conclusive evidence. | Not required; substantial evidence supports the definition. |
Key Cases Cited
- Consolidated Edison Co. v. NLRB, 305 U.S. 197 (1938) (substantial evidence standard for agency findings)
- Duferco Steel, Inc. v. United States, 296 F.3d 1087 (Fed.Cir.2002) (order language governs; cannot rely on petition language over final order)
- Tak Fat Trading Co. v. United States, 396 F.3d 1378 (Fed.Cir.2005) (predicate for interpretive process is language in the order)