Slip Op. 16-38

                UNITED STATES COURT OF INTERNATIONAL TRADE


 DISTRICARGO, INC.,

                             Plaintiff,
                                                           Before: Leo M. Gordon, Judge
                     v.
                                                           Court No. 14-00208
 UNITED STATES,

                             Defendant.


                                            OPINION

[Final scope ruling sustained.]

                                                                        Dated: April 20, 2016

       Peter S. Herrick, Peter S. Herrick, P.A. of St. Petersburg, FL, Josh Levy, Marlow,
Adler, Abrams, Newman & Lewis, P.A. of Coral Gables, FL for Plaintiff Districargo, Inc.

       Douglas G. Edelschick, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice of Washington, DC for Defendant United States. On
the brief with him were Benjamin C. Mizer, Principal Deputy Assistant Attorney General,
Jeanne E. Davidson, Director, Reginald T. Blades, Jr., Assistant Director. Of counsel on
the brief was David P. Lyons, Attorney, Office of the Chief Counsel for Trade Enforcement
and Compliance, U.S. Department of Commerce of Washington, DC.

       Gordon, Judge: This action involves a scope inquiry conducted by the

U.S. Department of Commerce (“Commerce”) regarding the antidumping and

countervailing duty orders on aluminum extrusions from the People’s Republic of China.

See Final Scope Ruling on Exhibition Booth Kits (Dep’t of Commerce Aug. 14, 2014),

available at http://enforcement.trade.gov/download/prc-ae/scope/49-exhibition-booth-

kits-14aug14.pdf (last visited this date) (“Final Scope Ruling”); see also Aluminum

Extrusions from the People’s Republic of China: Antidumping Duty Order, 76 Fed. Reg.
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30,650 (Dep’t of Commerce May 26, 2011) (“AD Order”); Aluminum Extrusions from the

People’s Republic of China: Countervailing Duty Order, 76 Fed. Reg. 30,653 (Dep’t of

Commerce May 26, 2011) (“CVD Order”) (collectively, “Orders”). The U.S. Department of

Commerce (“Commerce”) determined that Plaintiff’s exhibition booth kits did not meet the

criteria for a “finished goods kit” as outlined in the Orders, and therefore were within the

scope of the Orders.

       Before the court is Plaintiff Districargo Inc.’s USCIT Rule 56.2 motion for judgment

on the agency record. See Pl.’s Mem. of Law & Argument in Supp. of Pl.’s Mot. for J. on

the Agency R., ECF No. 16 (“Pl.’s Br.”); see also Def.’s Resp. to Pl.’s Mot. for J. on the

Agency R., ECF No. 18 (“Def.’s Resp.”). The court has jurisdiction pursuant to

Section 516A(a)(2)(B)(vi) of Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(2)(B)(vi)

(2012),1 and 28 U.S.C. § 1581(c) (2012). For the reasons that follow, the court sustains

the Final Scope Ruling.

                                  I. Standard of Review

       The court sustains Commerce’s “determinations, findings, or conclusions” unless

they are “unsupported by substantial evidence on the record, or otherwise not in

accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing

agency determinations, findings, or conclusions for substantial evidence, the court

assesses whether the agency action is reasonable given the record as a whole. Nippon

Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). Substantial



1
 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2012 edition, and all applicable supplements.
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evidence has been described as “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United States,

407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 U.S.
197, 229 (1938)). Substantial evidence has also been described as “something less than

the weight of the evidence, and the possibility of drawing two inconsistent conclusions

from the evidence does not prevent an administrative agency’s finding from being

supported by substantial evidence.” Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620

(1966). Fundamentally, though, “substantial evidence” is best understood as a word

formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative Law and

Practice § 9.24[1] (3d ed. 2015). Therefore, when addressing a substantial evidence

issue raised by a party, the court analyzes whether the challenged agency action “was

reasonable given the circumstances presented by the whole record.” Jane C. Bergner,

Steven W. Feldman, the late Edward D. Re, and Joseph R. Re, 8-8A, West’s Fed. Forms,

National Courts § 13342 (5th ed. 2015).

                                  II. Legal Framework

      The language of the order itself is the “cornerstone” of a scope analysis and

“a predicate for the interpretive process.” Duferco Steel, Inc. v. United States, 296 F.3d
1087, 1097 (Fed. Cir. 2007). Commerce first considers the scope language of the order

itself, the descriptions contained in the petition, and how the scope was defined in the

investigation and in the determinations issued by Commerce and the ITC. 19 C.F.R.

§ 351.225(k)(1) (2015); Duferco, 296 F.3d at 1097. If the (k)(1) factors are dispositive,

Commerce issues a final scope ruling. See Eckstrom Indus., Inc. v. United States,
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254 F.3d 1068, 1071 (Fed. Cir. 2001). If the (k)(1) factors are not dispositive, Commerce

analyzes the Diversified Products criteria under subsection (k)(2) of its regulations: (1) the

physical characteristics, (2) the expectations of ultimate purchasers, (3) the ultimate use,

(4) the channels of trade in which the product is sold, and (5) the manner of advertising

and display. 19 C.F.R. § 351.225(k)(2). In this action Commerce determined that the

(k)(1) analysis was dispositive. Final Scope Ruling at 9. Plaintiff does not argue that the

(k)(2) factors are in issue. See Pl.’s Br. at 6-16.

                                  III. Scope of the Orders

       The Orders cover “aluminum extrusions,” which 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. “Subject aluminum extrusions may be

described at the time of importation as parts for final finished products that are assembled

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

at 30,654. Nevertheless, the scope “excludes finished goods containing aluminum

extrusions that are entered unassembled in a ‘finished goods kit’” (“exclusion”). AD Order,

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

The “finished goods kit” exclusion contains an exception: “[a]n imported product will not

be considered a ‘finished goods kit’ and therefore excluded from the scope of the
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investigation merely by including fasteners such as screws, bolts, etc. in the packaging

with an aluminum extrusion product.” Id.

                                          IV. Discussion

       Plaintiff imports exhibition booth kits comprised of extruded aluminum poles,

extruded aluminum beams, and iron buckles. Plaintiff imports the components together

in the same shipment and entry, but packages like parts together (i.e., poles with poles,

beams with beams, and buckles with buckles). Plaintiff explains that the components of

its exhibition booths were packaged separately for convenience, and that Plaintiff

imported the kits as a single shipment (i.e., in the same shipping container and on the

same Customs Form 7501 entry summary). Pl.’s Br. at 6-8, 14-16. After importation,

however, a distributor “unpacks, rearranges, and rents the various parts to the ultimate

consumer,” assembling the products per the specific requests of the end user.

Final Scope Ruling at 10. There is no dispute here that the poles and beams in Plaintiff’s

exhibition booth kits are aluminum extrusions and thus within the scope of the Orders and

that the iron buckles are non-aluminum extrusion parts. The only issue is whether the

subject exhibition booth kits, as a whole, qualify for the “finished goods kit” exclusion.

       The Orders define a “finished goods kit” as 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.” AD Order, 76 Fed. Reg. at 30,651

(emphasis added); CVD Order, 76 Fed. Reg. at 30,654.
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       Commerce has treated kits with separately-packaged components as a “finished

goods kit” as defined in the exclusion, Final Scope Ruling on Trade Booth Kits 13-15

(Dep’t of Commerce June 23, 2014), available at http://enforcement.trade.gov/ download/

prc-ae/ scope/ 42-trade-booth-kits-24jul14.pdf (last visited this date) (“Trade Booth Kits”).

Commerce has not done so, however, in cases where the components must be

rearranged into kits after importation. Final Scope Ruling on 5 Diamond Promotions, Inc.’s

Aluminum Flag Pole Sets 9-11 (Dep’t of Commerce Apr. 19, 2013), available at

http://enforcement.trade.gov/ download/ prc-ae/ scope/ 30-5-Diamond-Flag-Pole-Sets-

20130419.pdf (last visited this date) (“Although 5 Diamond imports a sufficient number of

packages of unassembled sections to create a predetermined number of three-and/or

four-section assembled flag pole sets together on the same Customs Entry Summary,

after importation, the packages must be opened, and the parts needed to fully assemble

an entire flag pole must be re-packaged before being sold to the end user”) (“Flag Poles”);

Final Scope Ruling on Law St. Enterprises, LLC’s Disappearing Door Screens 9-10

(Dep’t of Commerce Sept. 12, 2013), available at http://enforcement.trade.gov/

download/     prc-ae/    scope/3      3-Law-St-Screen%20Kits-aluminum-extrusion-PRC-

20130912.pdf (last visited this date) (“Although Law St. imports together, on the same

CBP 7501 form, ‘each and every element or part that makes up the completed screen

kit,’ the packages must be opened, and the parts needed to fully assemble an entire

disappearing door screen must be re-arranged and re-packaged, after importation, before

being sold to the end user.”) (“Disappearing Doors”).
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       Commerce below reviewed Plaintiff’s submissions and concluded that the

exhibition booth kits do not satisfy the “finished goods kit” criteria:

       [I]nformation from Districargo indicates that it imports the exhibition booth
       kits at issue as a single shipment, in the same shipping container, on the
       same 7501 entry summary and that at the time of importation like parts are
       packaged together (i.e., poles with poles, and beams with beams, and
       buckles with buckles). Information from Districargo further indicates that
       Districargo acts as the importer of record and that a separate firm, Pyramid
       Construction Services Inc. (Pyramid), acts as the “ultimate consignee.”
       Information from Districargo also indicates that Pyramid does not transfer
       or sell the products at issue, but instead that Pyramid enters the materials
       into “service inventory,” and then “assembles” the products at issue per the
       specific requests of the rental client (aka the exhibitor).

       Based on this information, we find that Districargo imports the products at
       issue in separate packaging (i.e., poles with poles, beams with beams, and
       buckles with buckles), the products are subsequently transferred to Pyramid
       where the kits pieces remain unassembled in “service inventory,” and that
       Pyramid, acting as a distributor, unpacks, rearranges, and rents the various
       parts to the ultimate consumer. We find this fact pattern is akin to that
       examined in [Disappearing Doors] in which the Department found that the
       products at issue were inside the scope of the Orders because upon
       importation it was necessary for the kits to be opened, re-arranged, and re-
       packaged, before being sold to the end user as a kit ready to be assembled
       into a finished good.

Final Scope Ruling at 10 (citing Disappearing Doors at 9; Flag Poles at 9) (footnotes

omitted). Commerce determined that Plaintiff’s exhibition booth kits are rearranged into

kits after importation and, analogizing this case to its prior rulings in Disappearing Doors

and Flag Poles, concluded that the exhibition booth kits are not “finished goods kits” as

defined in the Orders. Id.

       Plaintiff argues that Commerce unreasonably concluded that the exhibition booth

kits do not meet the “finished goods kit” criteria. Plaintiff insists that there is no evidence

that the distributor “rearranges” or “repackages” anything. Pl.’s Br. at 14-15. According to
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Plaintiff, its exhibition booth kits are “kits at the time of importation” and therefore meet

the “finished goods kit” criteria. Id. As a consequence, Plaintiff argues, the facts below

are analogous to Commerce’s prior scope ruling in Trade Booth Kits, where Commerce

applied the exclusion to kits consisting of large, separately-packaged components. Id. at

15-16 (citing Trade Booth Kits at 13, 15).

       In the court’s view, Commerce reasonably concluded that Plaintiff’s exhibition

booth kits are not “finished goods kits” as defined in the Orders. Final Scope Ruling at 9-

10 (citing Disappearing Doors at 9; Flag Poles at 9). Plaintiff submitted documents to

Commerce showing that it sells the booth kits to a distributor, who then rents booth kits

to end users. These documents indicate that the distributor opens the separate packages

and stores the booth kit parts in its inventory. The distributor “assembles” booths per the

specific requests of renters. Id. at 5, 9-10. These documents apparently do not specify

whether the booth components stay together as individualized kits from importation until

assembly. More specifically, they do not clarify whether the distributor mixes like

components in its inventory, rearranging and repackaging the components before

assembling each booth to fit renters’ requests. See id. On this record, it is reasonable for

Commerce to have determined that Plaintiff’s “kits” are actually rearranged and

repackaged into kits after importation, meaning they are not “finished goods kits” as

defined in the Orders. See id. at 9-10; see also id. at 3 (including “final finished products

that are assembled after importation” within the scope of the Orders).

       Plaintiff would have preferred that Commerce had identified direct evidence that

the booth components were “rearranged” and “repackaged” after importation. See Pl.’s
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Br. at 15-16 (“Placing the kits unassembled in service inventory does not reasonably

bridge Commerce’s path to a conclusion that the exhibition booth kits were ‘rearranged’

or ‘repackaged’ after importation.”). The burden, however, is on Plaintiff, not Commerce,

to have demonstrated this fact. For example, Plaintiff does not show that the components

required to assemble a booth are arranged together in the shipping container or marked

in a way that communicates each box belongs to an individual kit. Cf. Final Scope Ruling

on J.A. Hancock Co., Inc.’s Geodesic Structures 7 (Dep’t of Commerce July 17, 2012),

available at http://enforcement.trade.gov/ download/ prc-ae/ scope/ 16-Hancock-

Geodesic-Structures-20120717.pdf (last visited this date) (finding that the product in

question “meet the initial requirements” for inclusion into the exclusion in part because

the separate packages of like parts contained markings like “box 1 of 3,” “box 2 of 3,” and

“box 3 of 3”). Plaintiff does not show that the distributor maintains its inventory of booth

components to prevent mixing of parts between kits, which in turn might suggest the

components were kits upon importation. Cf. Trade Booth Kits at 13-15 (finding that the

importer’s detailed description of the shipping, import, and delivery process qualified the

product in question as a “finished goods kit,” despite separate packaging of components).

       Commerce articulated a second basis for including Plaintiff’s merchandise within

the scope of the Orders, which Plaintiff also challenges in its brief. See Pl.’s Br. at 11-14.

The finished goods kit exclusion has an exception: “An imported product will not be

considered a ‘finished goods kit’ . . . merely by including fasteners such as screws, bolts,

etc. in the packaging with an aluminum extrusion product.” AD Order, 76 Fed. Reg. at

30,651; CVD Order, 76 Fed. Reg. at 30,654. Commerce interpreted this language to
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cover Plaintiff’s exhibition booth kits. Final Scope Ruling at 9-10. The court does not reach

this issue because the merchandise must first fall within the exclusion before the

exception may apply. More specifically, the “exception” to the exclusion is only implicated

if the merchandise 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.” See AD Order, 76 Fed. Reg. at 30,651; CVD Order, 76 Fed. Reg.

at 30,654. Commerce reasonably concluded as a factual matter that Plaintiff’s exhibition

booth kits do not satisfy this definition, meaning the exclusion is inapplicable, and by

extension, the exception to the exclusion cannot apply. The court therefore does not

reach this aspect of Plaintiff’s challenge to the Final Scope Ruling.

                                      III. Conclusion

       The court sustains the Final Scope Ruling because Commerce reasonably

concluded that Plaintiff’s exhibition booth kits do not satisfy the criteria for a “finished

goods kit” as defined in the Orders. Judgment will enter accordingly.




                                                            /s/ Leo M. Gordon
                                                          Judge Leo M. Gordon


Dated: April 20, 2016
       New York, New York