Polites v. United States , 465 F. App'x 962 ( 2012 )

NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
__________________________
CONSTANTINE N. POLITES,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
AND
AD HOC COALITION FOR FAIR PIPE IMPORTS
FROM CHINA AND
UNITED STEELWORKERS,
Defendants-Appellees.
__________________________
2011-1606
__________________________
Appeal from the United States Court of International
Trade in Case No. 09-CV-0387, Chief Judge Donald C.
Pogue.
___________________________
Decided: March 7, 2012
___________________________
CONSTANTINE N. POLITES, Swarthmore, Pennsylvania,
pro se.
POLITES v. US 2
MICHAEL D. PANZERA, Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, for defendant-
appellee United States. With him on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and PATRICIA M. MCCARTHY, Assistant Director.
Of counsel on the brief was JOANNA V. THEISS, Attorney,
Office of the Chief Counsel for Import Administration,
United States Department of Commerce, of Washington,
DC.
ROGER B. SCHAGRIN, Schagrin Associates, of Washing-
ton, DC, for defendants-appellees AD HOC Coalition, et
al. With him on the brief were GILBERT B. KAPLAN and
BRAIN E. MCGILL, King & Spalding, LLP, of Washington,
DC. Of counsel were JOHN W. BOHN and MICHAEL JAMES
BROWN, Schagrin Associates, of Washington, DC.
__________________________
Before RADER, Chief Judge, SCHALL and BRYSON, Circuit
Judges.
PER CURIAM.
This case concerns a determination by the Depart-
ment of Commerce that certain imported steel pipe is
covered by antidumping and countervailing duty orders
applicable to pipe imported from China. Plaintiff Con-
stantine M. Polites filed a complaint in the Court of
International Trade contending that his steel pipe im-
ports are exempt from the antidumping and countervail-
ing duties because they fall within an exclusion to the
duty orders for finished scaffolding. The court upheld
Commerce’s interpretation of the antidumping and coun-
tervailing duty orders as covering Mr. Polites’s imports.
We affirm.
3 POLITES v. US
I
In 2008, Commerce issued an antidumping duty order
and a countervailing duty order on circular welded carbon
quality steel pipe imported from the People’s Republic of
China. See Circular Welded Carbon Quality Steel Pipe
from the People's Republic of China, 73 Fed. Reg. 42,547(July 22, 2008) (notice of antidumping duty order); Circu-
lar Welded Carbon Quality Steel Pipe from the People's
Republic of China, 73 Fed. Reg. 42,545 (July 22, 2008)
(notice of countervailing duty order). The orders covered
certain welded carbon pipes and tubes of specified diame-
ters, “regardless of wall thickness, surface finish . . . , end
finish . . . , or industry specification . . . , generally known
as standard pipe and structural pipe.” The orders ex-
cluded several types of pipe products, among them “fin-
ished scaffolding.” The scope of that exclusion is the
disputed issue in this case.
Mr. Polites imports galvanized high-strength finished
steel tubing from China and uses it in the construction of
tube and coupler scaffolding. In April 2008, his Chinese
supplier informed him that the United States was consid-
ering imposing antidumping duties on circular welded
steel pipe. Mr. Polites requested a scope ruling from
Commerce regarding the importation of such pipe, assert-
ing that the products he imports “are in fact finished
scaffolding products” and should be excluded from the
steel pipe antidumping and countervailing duty orders.
Commerce disagreed. In a memorandum dated August
12, 2009, Commerce concluded that Mr. Polites’s scaffold-
ing tubes did not qualify for the exclusion and fell within
the scope of the orders.
Mr. Polites challenged that scope ruling by filing an
action in the Court of International Trade. After the
POLITES v. US 4
action was filed, Commerce requested a voluntary remand
to allow it to articulate a definition of the “finished scaf-
folding” exclusion. The court granted the request and
remanded the matter. Commerce then defined “finished
scaffolding” as “completed supported elevated platforms”
and “component parts that enter the United States unas-
sembled as a ‘kit.’” Based on that definition, Commerce
once again concluded that Mr. Polites’s imports did not
meet the definition of “finished scaffolding” and that they
remained subject to the antidumping and countervailing
duty orders.
Mr. Polites continued to press his case before the
Court of International Trade. He asserted that Com-
merce’s definition of “finished scaffolding” as fully assem-
bled elevated platforms was unreasonable because it
would be impractical to import merchandise fitting that
description. The court agreed, finding that “nothing in
the record demonstrates merchandise matching this
definition is imported into the United States or is even
possibly imported into the United States.” Polites v.
United States, 755 F. Supp. 2d 1352, 1357 (Ct. Int’l Trade
2011). The court therefore held that part of the definition
to be surplusage. Id. With respect to the “kit” part of the
definition, the court found that there was no “showing
that scaffolding kits are or may be imported into the
United States as complete kits.” Id. at 1358. The court
therefore remanded the case to Commerce to determine
whether scaffolding kits were being, or were capable of
being, imported into the United States. Id. at 1359.
On remand, Commerce pointed to evidence that Chi-
nese-origin scaffolding kits were being imported, or at
least were capable of being imported, into the United
States. That evidence consisted of (1) excerpts from the
websites of several Chinese companies that sold scaffold-
5 POLITES v. US
ing kits and listed the United States as an export market;
(2) a product listing and a shipping manifest from “Eter-
nal Star,” a Chinese company, reflecting the importation
of scaffolding kits into the United States; (3) a Customs
and Border Protection tariff classification ruling that
referred to a particular importer’s intention to import
“scaffolding rollers both alone and in combination with
the complete unassembled steel scaffolding”; and (4)
evidence that scaffolding kits are classified under the
Harmonized Tariff Schedule of the United States
(“HTSUS”) category 7308.40.00.00 and that a significant
number of Chinese products had been imported into the
United States under that tariff classification. Based on
that evidence, Commerce ruled that the steel tubes im-
ported by Mr. Polites fell within the scope of the anti-
dumping and countervailing duty orders and did not
satisfy the exclusion for finished scaffolding.
Mr. Polites challenged Commerce’s decision in the
Court of International Trade. The court, however, af-
firmed. Polites v. United States, 780 F. Supp. 2d 1351 (Ct.
Int’l Trade 2011). Relying on the “Eternal Star” and tariff
ruling evidence, the court concluded that “[t]ogether,
these two pieces of evidence support the conclusion that
scaffolding kits have been imported in the past and that
some importers at least intend to import scaffolding kits
into the United States.” 1 Id. at 1356. Therefore, the
1 The court did not rely on the website excerpts or
the HTSUS classification in coming to its conclusion. The
court could not determine whether the advertising in the
excerpts, claiming the United States as a primary export
market, constituted “mere puffery and not actual fact.”
Polites, 780 F. Supp. 2d at 1356 n.11. The HTSUS classi-
fication was likewise problematic, because the category
under which scaffolding kits are classified was not limited
strictly to scaffolding kits. The court was therefore un-
POLITES v. US 6
court ruled that the record evidence supported Com-
merce’s definition of “finished scaffolding” to include
scaffolding kits and that Mr. Polites’s imported tubes did
not fall within the scope of the “finished scaffolding”
exclusion. Id. at 1356-57.
II
On appeal, Mr. Polites makes a number of arguments,
some of which are not properly within the scope of this
appeal. He contends that the Court of International
Trade failed to take into account that there was no do-
mestic manufacturer of the specified material and no
record of economic harm or potential economic harm to
any domestic industry from materials such as his imports.
Those arguments, however, go to the question whether an
antidumping duty order or a countervailing duty order
should have been issued in the first instance; they are not
properly raised in a “scope determination” proceeding,
which is limited to defining the proper scope of an issued
order.
With respect to the issues properly before the court,
Mr. Polites contends that the examples of kits that Com-
merce presented as evidence that “finished scaffolding”
was being imported into the United States included only
fabricated elements and did not include plain lengths of
tubing. Because such kits lacked plain tubing, he argues,
they would not be subject to the antidumping or counter-
vailing duty orders in any event and thus, according to
Mr. Polites, such kits were not suitable examples of goods
that would be classified under the language of the exclu-
sion.
able to find that products imported into the United States
under that classification were scaffolding kits, rather
than any of the other items within the category. Id.7 POLITES v. US
In challenging Commerce’s scope ruling, Mr. Polites
must show that the ruling is “unsupported by substantial
evidence on the record, or otherwise not in accordance
with law.” 19 U.S.C. § 1516a(b)(1)(B); Tak Fat Trading
Co. v. United States, 396 F.3d 1378, 1382 (Fed. Cir. 2005).
We agree with the Court of International Trade that
substantial evidence supports Commerce’s determination
that the tubes Mr. Polites seeks to import fall within the
scope of the antidumping and countervailing duty orders.
There is no dispute that the tubes meet the specifications
set out in the orders. The only issue is whether they are
exempt from the orders under the “finished scaffolding”
exclusion.
“The language of the order determines the scope of an
antidumping duty order.” Tak Fat Trading, 396 F.3d at
1382; see Duferco Steel, Inc. v. United States, 296 F.3d
1087, 1097 (Fed. Cir. 2002). Commerce enjoys substantial
freedom to interpret and clarify its antidumping duty
orders, although it “cannot ‘interpret’ an antidumping
order so as to change the scope of that order, nor can [it]
interpret an order in a manner contrary to its terms.”
Duferco Steel, 296 F.3d at 1095, quoting Eckstrom Indus.,
Inc. v. United States, 254 F.3d 1068, 1072 (Fed. Cir.
2001). We cannot conclude that Commerce’s interpreta-
tion of the term “finished scaffolding” to include scaffold-
ing kits is unsupported by substantial evidence. Although
the evidence on which the trial court relied is thin, con-
sisting of a shipping manifest and a ruling announcing
the intent of one importer, Mr. Polites has not challenged
that evidence in any way or offered any probative coun-
tervailing evidence of his own. 2
2 In the Court of International Trade, Mr. Polites
claimed that he met with a manager of a company that is
an importer/exporter and domestic supplier of scaffolding
POLITES v. US 8
As to Mr. Polities’s objection that the examples of “fin-
ished scaffolding” being imported into the United States
included only fabricated elements, and not any plain
lengths of tubing, the description of the kit imported by
Eternal Star for which Commerce provided the shipping
manifest refers to steel tubes. The Court of International
Trade concluded that “there is nothing on the record to
suggest that the ship manifests are inaccurate or mislead-
ing,” Polites, 780 F. Supp. 2d at 1355, and Mr. Polites has
presented nothing of substance to undermine that conclu-
sion.
The short of the matter is that Commerce determined
that scaffolding kits are imported into the United States
and that the steel tubes Mr. Polites seeks to import fail to
qualify as such kits. Because that determination is
supported by substantial evidence, we uphold the decision
of the Court of International Trade sustaining Com-
merce’s ruling.
AFFIRMED
and that the manager had never heard of scaffolding kits.
That evidence, without more, does not undermine Com-
merce’s determination that scaffolding kits are being
imported, or at least are capable of being imported, by
other companies.