2011 WL 1103341
Ct. Intl. Trade2011Background
- Polites sought a scope ruling to exclude his finished scaffold tubes from the Circular Welded Carbon Quality Steel Pipe (CWP) Orders.
- Commerce on remand defined finished scaffolding to include completed scaffolding and scaffold kits, but Polites challenged this definition as surplusage.
- The court applies a three-step scope analysis: order language, § 351.225(k)(1) criteria, then § 351.225(k)(2) Diversified Products factors if needed.
- Commerce initially found Polites’s pipes fell within the CWP Orders, so a finished scaffolding exclusion was not defined.
- The court finds Commerce’s literal finished scaffolding definition renders the exclusion surplusage and remands.
- The court instructs Commerce to either show substantial record evidence that scaffolding kits may be imported or proceed with the § 351.225(k)(2) analysis.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the finished scaffolding definition is consistent with the scope orders | Polites argues the definition is surplusage and overbroad. | Commerce asserts discretion to include kits; aims to define the exclusion. | Remanded for reconsideration; not consistent with the order's terms. |
| Whether fully assembled scaffolding is a reasonable exclusion | Fully assembled scaffolding is impractical for import and unsupported by record. | Kits can constitute finished scaffolding; inclusion is permissible per record. | Unreasonable because it would not reflect importable merchandise; remanded. |
| Whether scaffolding kits should be included in the finished scaffolding exclusion | Kits are not evidenced to be imported as complete kits. | Record shows scaffolding kits exist in US market and may be imported as kits. | Remand to assess substantial evidence; not consumed by k1 analysis. |
| Whether § 351.225(k)(2) factors must be used given ambiguity | k1 factors are insufficient to define the exclusion. | K1 factors can support the exclusion; kit interpretation is record-based. | Remand to consider k2 factors if k1 is not dispositive. |
Key Cases Cited
- Sango Int’l v. United States, 484 F.3d 1371 (Fed. Cir. 2007) (k(1) criteria must dispositively answer scope if they are controlling)
- Duferco Steel, Inc. v. United States, 296 F.3d 1087 (Fed. Cir. 2002) (scope orders cannot be changed contrary to their terms)
- Allegheny Bradford Corp. v. United States, 342 F. Supp. 2d 1172 (CIT 2004) (scope rulings receive deference but must reflect order terms)
- Smith-Corona Group v. United States, 713 F.2d 1568 (Fed. Cir. 1983) (agency may rely on record to include in exclusion even if not listed in petition)
- Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927 (Fed. Cir. 1984) (record evidence must support agency’s interpretations)
- Eckstrom Indus., Inc. v. United States, 254 F.3d 1068 (Fed. Cir. 2001) (avoid surplusage and ensure meaningful exclusions)