### Slip Op. 04–59

UNITED ST ATES COURT OF INTE RNATIONAL T RADE

________________________________________ : ALL EGHENY BRADFORD : CORPORATION, d/b/a TOP LI NE : PROCESS EQUIPMENT COMPANY, : : Plaintiff, :

: Court No. 02-00073 v. :

: UNITED STATES, : : Defend ant. :

_ ______________________________________ : [Antidumping duty order scope determination reversed.]
Dated: June 4, 2004

Wo mb le C arl yle S and rid ge & R ice PLLC ( James K. Kearney ) for plaintiff. Peter D. Keisler , Assistant Attorney Gene ral, David M. Cohen , Director, Jeanne E. Davidson , Deputy Direc

tor, Commercial Litigation Bra nch, Civil Division, United States Department of Justice ( David S. Silverbrand , Ja mes H. H ol l, III , and Paul D. Kovac ) , Phil ip J. Curtin , Attorney, Off

ice of Chief Counsel for Import Administration, United States Depa rtment of Commerce, Christopher Chen , Senior Attorney, Off ice of Chief Counsel, United States Bureau of Customs and Border Protection, of counse l, for defendant. 

### OPINION RESTANI, Chief Judge: INTRODUC TION Plaintiff Allegheny

Bradford Corporation, d/b/a Top Line Process Equipment Company (“Top Line”) moves f

or judgment on the agency record that its stainless steel butt-weld tubeC OURT N O . 02-00073 P AGE 2

1 “P.R. __:__:__” refers to the public record document number, micro- fiche slide number, and micro-fiche frame number. fittings from Taiwan were improperly ruled to be within the scope of an antidumping duty order by the U.S. Depar

tment of Commerce (“Commerce” or “Depa rtment”). Final Scope Ruling on the Antidumping Duty Orde r on Stainless Steel Butt-Weld Pipe Fittings from Taiwan: Allegheny Bradford Corporation d/b/a Top Line Process Equipment (Dep’t C ommerce

Dec. 10, 2001), P.R. 29:13:33, Pl.’s App., Doc. 1, notice published at 66 Fed. Reg. 65,899 (Dep’t Commerce De c. 21, 2001) [hereinafter Final Affirmative Scope Ruling ]. The underlying a ntidumping duty order imposed duties on stainless steel butt-weld pipe fittings from Taiwan. Amended Final Determination and Antidumping Duty Order: Certain Welded Stainless Steel Butt-Weld Pipe Fittings from Taiwan , 58 Fed. Reg. 33,250 (Dep’t Commerce June 16, 1993) [hereinaf ter Antidumping Duty Orde

r or Order ]. Because its tube fittings are unambiguously outside the scope of the Antidumping Duty Orde r , Top Line’s motion is granted. BACKGROUND I. T HE A NTIDUMP ING D UTY I NVESTI GATION The Antidumping Duty Orde r was the culmination of an investigation initiated by the petition of the Flowline Division of Markovitz Enterprises. Petition (May 20, 1992) , P.R. 1:3:14-18, 1 Pl.’s App., Doc. 3, Ex. 4 [hereinafter Petition ]. The petition alleged unfair imports of stainless steel butt-weld pipe fittings with an inside diameter of under fourtee n (14) inches from Taiwan and the Republic of Korea. Petition , at 1, P.R. 1:3:14, Pl.’s App., Doc. 3, Ex. 4 at 1. Over the course o f sever

al page s, the pet

ition desc ribes the subject me

rchandi se as fol lows:

• classifiable under heading 7307.23 of the Ha rmonized Tariff Schedule;

• designated under heading A 403/A403M–1991 of the standards developingC OURT N O . 02-00073 P AGE 3 organ ization, ASTM;

• having American National Standards I nstitute (“ANSI”) dimensional specifications B16.9–1986 and B16.28–1986;

• including finished or unfinished fittings capable of mee ting these specifications

• excluding

“threa ded, gr ooved, a nd bolted f

ittings;”

• “used to connect pipe sections in piping systems where conditions require welded connections, as distinguished from fittings designed for other fastening methods (e.g. , thread

ed, gr ooved, or bolted fit ting);”

• “used where one or more of the following conditions is a factor in designing the piping system: (1) c orrosion of the piping sy stem will occur if material other than stainless steel is used; (2) contamination of the material in the system by the system itself must be prevented; (3) high temperatures (in excess of 300° F) ar e present; (4) extreme low temperatures are pr esent; (5) high pressures are containe d within the

sys tem;”

• “used in so-called ‘process’ piping sy stems such as chemical plants, foot processing facilities, breweries, c ryog enic plants (including basic oxyg en steel processing), waste treatment fac ilities, pulp and paper production facilities, gas processing (gas separ

ation) facilities, and commercial nuclear power plants and nuclear navy applica tions (in r eactor lines and water li nes);”

• coming in “several basic shapes: ‘elbows’ , ‘tees’, ‘reducers’, ‘stub ends’ a nd caps’;”

• having

edges that, for finished fittings , “are b eveled s o that whe n placed against the end of a pipe (t he ends o f which have also been be veled) a shallow c

hannel is created to accommodate the ‘bea d’ of the weld which joins the fittings to the pipe” Id. at 1–4, Pl.’s App., Doc. 3, Ex. 4 at 1–4. Working from Flowline’s product description, Commerce formulate d the antidumping investigation’s scope in its notice of initiation: The products subject to these investigations are stainless steel butt-weld pipe fittings, whether finished or unfinished, under 14 inches inside diameter

. Stainless steel butt-weld pipe fittings are used to connect pipe sections in piping sys tems wher

e conditi ons requi

re welde d connections. The subject me

rchandi se is used where one or more of the following conditions is a factor in designing the piping system: (1) Corrosion of the piping system will occur if material other than stainless steel is used; (2) contamination of the material in the system by the sys tem itself

must be pr

evented ; (3) hig

h temper atures a re pres ent; (4) e

xtremeC OURT N O . 02-00073 P AGE 4

low tempe

rature s are pr

esent; (5 ) high pr

essures are con tained wi thin the sy

stem. Stainless steel butt-weld pipe fittings come in a variety of shapes, with the following fi ve shapes th e most basi c: "elbows", "tees ", "reducers", "stub ends", and "caps". The edg es of finished fittings are beveled. Threa ded, grooved, and bolted fittings are excluded from these investigations. The stainless steel butt-weld pipe fittings subject to these investigations are classifiable unde r subheading 7307.23.00 of the Harmonized Tariff Schedule of the United States (HTSUS). Initiat ion o f Anti dump ing Dut y Investigat ions : Cert ain S tainl ess S teel Bu tt-W eld P ipe Fi ttin gs from the Republic of Korea and Taiwan , 57 Fed. Reg. 26,645 (Dep’t Commerce June 15, 1992) [hereinafter Notice of Initiation of I nvestigation ]. When Commerce issued its preliminary determination roughly

six months later, the scope language underwent minor c hanges, which consiste d primari ly o f the add ition of the

word “c ertain”

in its ref erence to the pipe

fittings : The products subject to this investigation are certain stainless steel butt-weld pipe fittings, whether finished or unfinished, under 14 inches inside diameter

. Certain stainless steel butt-weld pip e fitting s ( pipe f itti ngs ) are used to connect pipe sections in piping systems wher e conditions require welded connections. The subje ct merchandise is used whe re one or more of the followi

ng cond itions is a factor in desig

ning the piping sy stem: (1) Corrosion of the piping sy stem will occur if material other than stainless steel is used; (2) Contamination of the material in the sy stem by the sy stem itself must be prevented; (3) Hig h temper atures a re pres ent; (4) Extre me low tem

peratur es are present; (5) Hig h pressur es are c ontained

within the

sys tem. [“ Stainless steel butt-weld ” delete d] Pipe fittin gs come in a vari ety

of shape s, with the following five shapes being the most basic: " elbows", "tees", "r educers", "stub ends", and "caps". The

edges of finished fittings are beve led. Threaded, grooved, and bo lted f

itti ngs are e xclu ded fro m thes e inve stigat ions . The p ipe fi ttin gs subject to these investigations are classifiable under subhe ading 7307.23.00 of theC OURT N O . 02-00073 P AGE 5

Harmonized Tariff Schedule of the United States (HTSUS). Althoug h the HTSU S subhead

ing is pr ovided for conven

ience a nd customs purposes, our written description of the scope of this investigation is dispositive. Prelimina ry Determi nation of Sales at Less Than

Fair Va lue: Cert ain Stainle ss Steel B utt-Weld Pipe Fittings From Taiwan , 57 Fed. Reg. 61,047 (Dep’t Commerce De c. 23, 1992) [hereinafter Preliminary Deter

mination ] (emphasi s added to show cha nges fr om Notice of Initiation of Investigation

). The Final Determination

nearly duplica

ted the scope language of the Preliminary Determination , with the a ddition, however, of two pa ragra phs reg arding

A774 fitti

ngs: The products subject to this investigation are certain stainless steel butt-weld pipe fittings, whether finished or unfinished, under 14 inches inside diameter

. Certain welded

stainless steel butt-weld pip e fitting s (pipe f ittings)are use d to connect pipe sections in pipi ng systems whe

re condi tions req uir ed welded connections. The subject merchandise is used where one or more of the following conditions is a factor in designing the piping sy stem: (1) Corrosion of the piping system will occur if mater ial other than stainless steel is used; (2) contamination of the mater ial i n the s ystem by the s ystem it self m ust b e preve nted; (3) hi gh tempe ratur es are p resent ; (4) e xtre me low tempe ratur es are p resent ; (5) h igh pressur es are c ontained

within the

sys tem. Pipe fittin gs come in a vari ety

of shape s, with the

following

five sha pes the mo st basic: "elbows", "tees" , "reducers", "stub e nds", and "caps". The e dges of finished pipe fittings are beveled. Threade d, grooved, and bolted fittings are excluded from these investigations. The pipe fittings subject to these investiga tions are classifiable under subheading 7307.23.00 of the Ha rmonized Tariff Schedule of the United States (HTSUS). Althoug h the HTSU S subhead

ing is pr ovided for conven

ience a nd customs purposes , our writ

ten description of

the scope of these investig ations is dispositive. After it withdrew from this investigation, [Tachia Yung Ho Mac hine Co., Ltd.]C OURT N O . 02-00073 P AGE 6

inquired whether A774 ty pe stainless steel pipe fittings were included within the scope of the investigation, and therefore , subject to any antidumping duty order

. Based on the information on the record, we de termine that A774 is covered by the scope of this investigation because it meets the requireme nts outlined in our scope. Our scope states that fittings must be under 14 seconds in inside diameter and can be eithe r finishe d or unfin

ished. Ou

r scope l angua

ge only specific ally excludes t hreade d, bolted a

nd grooved fittin

gs, and none of these cri

teria ap ply to A774 fittings. Therefore, we deter mine that A774 fittings are included in the scope of this investigation. (See "Concurrenc e Memorandum", dated May 7, 1993 for further discussion). Final Determination of Sales at Le ss than Fair Value: Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan , 58 Fed. Reg. at 28,556 (Dep’t Commerce Ma y 14, 1993) [hereinaf

ter Final Determination ] (emphasi s added to show cha nges fr om Preliminary Deter

mination ). The additional section regarding A774 fitting s refers to the Concurrence Memorandum , which explains how the non-beveled A774 fittings could be included within the investigation’s scope: “The sc ope does

state the edges of finishe d fitting s are be veled; however, this is not a requi rement nor is this state d wit h resp ect to unfin ished fitt ings. Final ly, our sc ope la nguage only specific ally

excludes t

hreade d, bolted a

nd grooved fittin

gs, and none of these cri

teria ap ply to A774 fittings.” Concurrence Memorandum to Final Determination

(Dep’t Commerce May

7, 1993) at issue 3, P.R. 1: 4:66–67, Pl.’s App., Doc. 3, Ex. 11 at 4 [hereinafter Concurrence Memorandum ]. II. T HE C OMMISSI ON ’ S I NJURY I NVESTI GATION Concurrent with Commerce’s dumping investigation , the International Trade Commission (“ITC” or “Commission”) instituted its injury investig ation on December 17, 1992. In providing notice of the initiation of its injury investigation, the ITC ga ve only a briefC OURT N O . 02-00073 P AGE 7

description of the subject merchandise as “cer tain stainless steel butt-weld pipe fittings, provided for in subheading 7303.23.00 of the [HTSUS].” Certa in St ainle ss St eel But t-Wel d Pip e Fitt ings from Korea and Taiwan: I nstitution and Scheduling of Preliminary Antidumping Investigations , 57 Fed. Reg. 22,486 (I

nt’l Trade Comm’n May 28, 1992) . Later, on June 3, 1993, the ITC transmitte d to Commer

ce its final affir

mative de terminat ion that a U.S. indust

ry was mate rially injured by less than fa

ir value imports of stainless steel butt-weld pipe fittings from Taiwan. Certain Stainless Steel Butt-Weld Pipe Fittings From Taiwan , USITC Pub. 2641, Inv. No. 731-TA-564 (final) (June 1993) at *1 [hereinafter Final Injury Determination ]. The Final Injury Determination

defined the scope of the investigation by incorporating the Commission’s product discussion in Certain Stainless Steel Butt-Weld Pipe Fittings from Korea , USITC Pub. 2601, Inv. No. 731-TA-563 (final) (Feb. 1993) [hereina fter Korea Final I

njury Deter

mination ]. The product description in the Korea Final I njury Deter

mination begins as follows: Stainless steel butt-weld pipe fittings are used to connect pipe sections wher e conditions require permanent, welded connections and r esistance to corrosion or oxidation and extreme temperatures as well as the ability to withstand pressure. The beveled edges of butt-weld fitting s distinguish them from other types of pipe fittings, such as threaded, grooved, or bolted fittings, which rely on different fastening methods. When placed against the e nd of a beveled pipe or another fitting, the beveled edges form a shallow channel that accommodates the “bead” of the we ld that fa stens the two adjoin

ing piec es. Id. at *27–*28. III. T HE A NTIDUMP ING O RDER After the ITC made its aff irmative injury determination and Commerc e issued the Final Determination , the Department issued the definitive scope language in the Final AntidumpingC OURT N O . 02-00073 P AGE 8

Order . The Order

altered the final paragra

ph of the Final Determination to couch the A774 ruling i n the past tense an d remove d the ref

erence to the Dep artment’ s Concurrence Memorandum : The products subject to this investigation are certain stainless steel butt-weld pipe fittings, whether finished or unfinished, under 14 inches inside diameter

. Certain welded sta

inless ste el butt-w eld pipe f ittings ( pipe fitti ngs) ar e used to connect pipe sections in pipi ng systems whe

re condi tions require welded connections. The subject merchandise is used where one or more of the following conditions is a factor in designing the piping sy stem: (1) Corrosion of the piping system will occur if mater ial other than stainless steel is used; (2) contamination of the mater ial i n the s ystem by the s ystem it self m ust b e preve nted; (3) hi gh tempe ratur es are p resent ; (4) e xtre me low tempe ratur es are p resent ; (5) h igh pressur es are c ontained

within the

sys tem. Pipe fittin gs come in a vari ety

of shape s, with the

following

five sha pes the mo st basic: "elbows", "tees" , "reducers", "stub e nds", and "caps". The e dges of finished pipe fittings are beveled. Threade d, grooved, and bolted fittings are excluded fr om these investigations. The pipe fittings subject to these investigations are classifiable under subheading 7307.23.00 of the Ha rmonized Tariff Schedule of the United States (HTSUS). Althoug h the HTSU S subhead

ing is pr ovided for conven

ience a nd customs purposes , our writ

ten description of

the scope of these investig ations is dispositive. After it withdrew from this investigation, Tachia Yung Ho Machine Industry

Co., Ltd. (TYH) inquired whether A774 type stainless steel pipe fitting s were included within the scope of the investigation, and therefore, subjec t to any antidumping duty order. Based on the information on the rec ord, we d

etermined in our final determination that A774 is covered by

the scope of this investigation because it meets the requirements outlined in our scope. Our scope states that fittings must be under 14 " [“ seconds ” deleted] in inside diameter and can be either finished or unfinished. Our scope language only specifica

lly excludes threaded, bolted a nd grooved fittings, and none of these cr iteria apply to A774 fitting s. Therefore, we determined that A774 fittings are included in the scope of this investig ation. [“ (See ‘Concurrence memorandum’, date d May 7, 1993 for f urther discussion). ” deleted] Antidumping Duty Orde

r , 58 Fed. Reg. at

33,250 (e

mphasis a dded to show chang es from FinalC OURT N O . 02-00073 P AGE 9

Determination ).

IV. T OP L INE ’ S F IRST REQUES T FOR A S COPE D ETERMI NATION Top Line did not participate in the pre-a ntidumping order investigations by Commerce and the ITC, and did not participate in Commerce ’s administration of the Final Antidumping Order . Top Line did, however, appr oach Commerce on December 14, 1994, re questing a scope ruling as to whether its various stainless steel tube fittings with non-welded ends a re covered by the Final Antidumping Order

. Letter from Reed Smith to Secretary of Commerce (Dec. 14, 1994), P.R. 4:5:44, Pl.’s App., Doc. 4, Ex. 14 [hereinafter First Sco pe Reque st ]. Commerce ruled for Top Line af

ter an initial investigation, concluding that “no formal inquiry is warranted to determine whether bevel seat fittings, clamp fitting s, valves, hangers, and flang es are outside the scope of [the Final Antidumping Order ].” Final Scope Ruling: Antidumping Duty Order on Stainless Steel Butt-Weld Pipe Fittings from Taiwan- Request of Top Line Process Equipment Corporation , (Dep’t Commerce Aug. 8, 1994), at 2, P.R. 1:4:76, Pl.’s Appx., Doc. 3, Ex. 12 at 2, notice published at

60 Fed. Reg. 54,213 (Dep’t Commerce Oc t. 20, 1995) [hereinafter First Scope Ruling ].
V. T OP L INE ’ S S ECOND S COPE REQUEST Several ye ars after the First Scope Ruling , Top Line received f rom Customs a Notice of Action, d ated Mar ch 8, 2001 , informin

g the company

that an e ntry of its “sta

inless ste el butt we ld pipe fitti ngs” wa s subject

to antidump ing dutie s and req uesting a cash de posit on the

entry within 30 days. Notice of Action (Mar. 8, 2001), P.R. 1:3:11 , Pl.’s App., Doc. 3, Ex. 3 . Top LineC OURT N O . 02-00073 P AGE 10

2 On July 31, 2000, Commerce, pursuant to 19 U.S.C. § 1675, initiated an administrative review of the Final Antidumping Order , covering the period from June 1, 1999 to May 31, 2000. Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part , 65 Fed. Reg. 46,687, 46,688 (Dep’t Commerce July 31, 2000)

. responde d the following mon th by filing w ith Commerc e a second scope request , which so

ught a ruling as to whether the Antidumping Duty Orde r covers i ts sanitar y/h ygienic sta

inless ste el buttweld tube fittings imported from King L ai International Co., L td. (“King Lai” ) of Taiwan

. Letter from Reed Smith to Secretary of Commerce (Apr. 12, 2001), at 1, P.R. 1:2:1, Pl.’s App., Doc. 3 [hereinafter Second Sc ope Reque st ]. 2 In the Second Sc ope Reque st , Top Line allege d that its sanitary/hy gienic stainless steel butt-weld tube fittings should be excluded from the Final Antidumping Order because : (1) whil e stainless steel pipe, the subject of the Final Antidumping Order , is always desig nated by inside diameter, stainless steel tubing, King L ai’s product, is alway s designated by outside diameter; (2) King Lai’s sanitary

/hygienic stainless steel butt-weld tube fittings do not meet the specific and objective criteria for stainless steel butt-weld pipe fittings, as set f orth in the Petition ; (3) King Lai’ s tube fitt

ings ar e manufa ctured a nd used in d

iffere nt ways than the

pipe fitti ngs des cribed i

n the Final Antidumping Order ; and (4) King La i’s sanitary/hy

gienic stainless steel butt-weld tube fittings are square cut, not beveled. Second Sc ope Reque st , at 5–6, Pl.’s App., Doc. 3 at 5–6. Responding to the Second Sc ope Reque st , a group of manufacturers—inc luding Flowline, Gerlin, Inc., Shaw Alloy

Piping Products, Inc., and Tay lor Forge Stainless, I

nc. (“Petitioners”)—urged Commerce to find Top L ine’s tube fittings to be covered by the Order

. Letter from Collier Shannon Scott to the Secretar y of Commerce

(May 4, 2001), at 1–2, P.R.C OURT N O . 02-00073 P AGE 11

3 In a footnote to the First Scope Ruling , Commerce observed that “Top L ine acknowledges that it does market a line of butt-we ld tube fittings, such as elbows, tees, and reducers that do fall under the scope of the or der. However, Top L ine states that it does not import these products into the United States.” First Scope Ruling , at 5 n.1, Pl.’s App., Doc. 3, Ex. 12 at 5. The footnote does not provide a citation for the alleged ac knowledgment. Top Line argues that this purported acknowledg ment was actually a

mischaracterization of a statement that only admitted that the company marketed a line of butt-weld tube fittings, not that those tube fittings fell within the scope of the Order . Pl. ’s Rep ly Br. at 3 ( citi ng See Lette r from Re ed Smith (May 11, 2001), a

t 2–3, P.R. 4:5:35, Pl.’s App., Doc. 4, at 2–3 ). In any event, Commerce refined its interpretation of this purported admission, and used it “as support only for its conclusion that the information on the record prior to the initiation of the formal scope inquiry did not offer a clear distinction between pipe and tube butt-weld fittings.” Final Affirmative Scope Ruling , at 4–5, P.R. 29:13:33, Pl.’s App., Doc. 1, at 4–5. 2:5:1, Def.’s App. at 71–72 [Hereinafter Collier Shannon Letter (May 4, 2001)]. Petitioners argue d that Top L

ine’s Second Sc ope Reque st failed to distinguish its tube fittings from the subject butt-weld pipe fittings. Id. at 2, Def.’s App. at 72. Petitioners also emphasized a purported admission by Top L ine in its first scope proceeding that its butt-weld fittings were covered by

the Order

. Id. at 3–4, Def.’s App. at 73–74. 3 In response to a supplemental questionnaire from Commerce, Top Line spec ified the parameters of its scope request and discussed the points raise d by Petitioners. See Letter from Reed Smith to Secretary of Commerce (May

11, 2001) , P.R. 4:5:35 , Pl.’s App ., Doc. 4. This letter reemphasized the purported physical differences between tube a nd pipe. Id. at 2–4, Pl.’s App., Doc. 4 at 2–4. Shortly there after, Top Line submitted samples of two ty pes of sanitary/hy

gienic stainless steel butt-weld tube fittings for review by Commerce. Letter from Reed Smith to Secretary of Commerce (May 18, 2001), P.R. 5:5:66, Pl.’s App., Doc. 5

. Commerce found the parties’ submissions and the existing agency work to be anC OURT N O . 02-00073 P AGE 12

4 On June 22, 2001, Top Line and Petitioners submitted rebuttal comments. Letter from Reed Smith to Secretary of Commerce (June 22, 20 01), P.R. 13 :9:1, Pl.’s App., Doc . 8; Letter from Collier Shannon to Secretary of Commerce (June 22, 2001), P.R. 12:8:44

. insufficient basis for decision and, consequently, determined that a formal scope inquiry was required under C.F.R. § § 351.225(d) and (k)(1). Letter from Edwar d C. Yang to All Intereste d Parties , (Dep’t Commerce May 24, 2001), at 1–2, P.R. 9:5:78, Def.’s Appx. at 86–87 [hereinafter Formal Scope Initiation L etter ]. In commencing the forma l scope inquiry, Commerce requested that inter ested pa rties subm

it comment s rega

rding their prod

ucts that a

ddress the five criteria originally se

t forth in Diversified Products Corp. v. United States , 6 CIT 155, 572 F. Supp. 883 (1983), and incorporated into regulation by 19 C.F.R. § 351.225 (k)(2) (2003): (1) the phy sical characteristics of the product; (2) the ultimate use of the product; (3) the expectations of the ultimate p

urchase r; (4) the channe ls of trad

e in which

the produ

ct is sold; a

nd (5) the manner i n which the product is advertised and display ed. Id. at 2, Def.’s Appx. at 87. In response to the Formal Scope Initiation L etter , Top Line and Petitioners submitted comments discussing the Diversif ied Produc

ts Criteri a on June 12, 2001. Letter from Reed Smith to Secretary of Commerce , (June 12, 2001), P.R. 11:7:1, Pl.’s App., Doc. 7 [hereinafter Top L ine Scope

Comments ]; Letter from Collier Shannon to Secretar y of Commerce

(June 12, 2001), P.R. 10:6:1, Def.’s App. at 101

. 4 In discussing the first criter ia—physical cha

racteristics—Top Line ar gued that “‘pipe’ and ‘tube or tubing’ are precise te rms describing different products.” Top L ine Scope Comments , at 2, Pl.’s App., Doc. 7, at 2. In support of this claim, Top Line alleged that, in contrast to pipeC OURT N O . 02-00073 P AGE 13

fittings, tube fittings have square cut (i.e. non-be veled) ends; are designated by its outside diameter rather than its inside diameter; and have their wa ll thickness identified by the term “gauge” as oppose d to the term “schedule,” which is used for pipe fittings. Id. at 7, Pl.’s App., Doc. 7, at 7. Second, regarding the ultimate use of the product, Top Line claimed that tube f ittings are to be used in applications involving sanitary processing of consumable products, or manufacturing of products requiring extreme purity. Id. at 8, Pl.’s App., Doc. 7, at 8. Top Line
contras ted these

applica tions with th

ose of pip e fitting s, which it describ ed as almost exclusively industrial applications that do not require sanitary or hygienic conditions. Id. at 8-9, Pl.’s App., Doc. 7, at 8–9. Top Line also asser ted that “pipe is generally intended for high temperature and high pressure applications [while] tube fittings are not used when either extremely high or low temperatures are present, nor ar e they used in ‘hig

h pressure’ applications.” Id. at 9, Pl.’s App., Doc. 7, at 9. As for the third criteria—the expectations of the ultimate purchaser—T op Line argue d that because its tube fittings are not used in the same applications as pipe f ittings, the expe ctati ons of

the ul tima te pur chaser of san itary/hygien ic sta inles s stee l but t-wel d tub e fitt ings are different from that of the ultimate purcha ser of pipe fittings. Id. Top Line then discussed the fourth cr iteria, channels of trade, stating that, “to the best of [its] knowledge and belief,” King L ai is not a supplier of pipe fittings. Id. at 9–10, Pl.’s App., Doc. 7, at 9–10. Top Line also indicated that the Petition did not ide ntify Top L ine as a U .S.C OURT N O . 02-00073 P AGE 14

distributer of pipe fittings, nor was Top Line ’s proposed port of import, Pittsburgh, listed by Petitioners as a port of import for pipe fittings. Id. at 10, Pl.’s App., Doc. 7, at 10. Regar ding the fifth cr iteria, t he manne r of adve rtising a nd display

, Top L ine arg

ued that i t is a member of certain industry associations that “define the potential end-users of stainless steel butt-weld tube fittings useable in sanitary and hygienic applications.” Id. at 11, Pl.’s App., Doc. 7, at 11. Top Line also noted that it advertises in particular trade journals, such as Pharmaceutical Processing and Food Manufacturing , where as Petitioners and other dome stic producers of stainless steel butt-weld pipe fittings do not. Id. At the conclusion of the comment period, Commerce made a pre liminary determination that Top Line’s sanitary

/hygienic stainless steel butt-weld tube fittings are within the scope of the Final Antidumping Order

. Memoran dum from E dward C. Y ang to Jose ph A. Spetr

ini: Preliminary Scope Ruling on the A ntidumping Duty Order

on Stainless Steel Butt-Weld Pipe Fittings: Allegheny

Bradford Corporation d/b/a Top Line Process Equipment (Dep’t Commerce Nov. 15, 2001), P.R. 22:12:65, Pl.’s App., Doc. 2, at 2 [hereinafter Preliminary Scope Ruling ]. In the Preliminary Scope Ruling , Commerce addressed the regula tory factors to be applied in the case of ambiguo us orders. The De

partmen t then ga ve Top L ine and Pe

titioners an oppor tunity to comment . Top Line and Petitioners responded by filing comment briefs, followed by rebuttal briefs. Letter from Reed Smith to Secretary of Commerce , (Nov. 21, 2001), P.R. 25:13:4, Pl.’s App., Doc . 11; Letter from Collier Shannon Scott to Secretary of Commerce , (Nov. 21, 2001), P.R. 26:13:1 7., Def. ’s App. a t 169; Letter from Reed Smith to Secretary of Commerce , (Nov. 26, 2001), P.R. 28:13:30, D ef.’s Ap p. at 171; Letter from Collier Shannon Scott to Secretary ofC OURT N O . 02-00073 P AGE 15

5 Peti tion ers argu ed to C ommer ce that certai n fitt ings— unfin ished fitt ings, A774 f itti ngs and those with Schedule 5S wall thickness—were clearly covered by

the Order

even though they had square-cut, non-beveled edg es like Top Line’s fittings. Letter from Collier Shannon (June 12, 2001), at 4, Def.’s App. at 104

. Commerce , howeve r, did not s

pecific ally

discuss e dging

in stating its final position on physical char acteristics. Final Affirmative Scope Ruling , at 9–11, Pl.’s App., Doc. 1, at 9–11. Commerce , (Nov. 26, 2001), P.R. 27:13:21, Def.’s App. at 173. On December 10, 2001, Commerce issued the Final Affirmative Scope Ruling , which found Top Line’s tube fittings to be within the scope of the Final Antidumping Order

. Final Affirmative Scope Ruling , Pl.’s App., Doc. 1. The Final Affirmative Scope Ruling reiterated that the scope could not be determined through informal inquiry and then applied each of the Diversif ied Produc

ts criteria. First, r egard ing the phys ical cha

racter istics of p ipes and t

ubes, Comme

rce re affirme d its preliminary dete

rmination that “the interchangeability of [the terms “pipe” and “tube”] precludes a finding of a distinction, based on terms alone.” Final Affirmative Scope Ruling , at 9, Pl.’s App., Doc. 1, at 9. 5 Commerce then soug

ht to clar ify certain points from industry

publicat ions, which it had considered when analy zing Top Line’s product in the Preliminary Scope Ruling

. For insta nce, Comme

rce poin ted out tha

t stateme nts conta ined in an article from Fabricator , a trade jo urnal, r ebutted T op Line’s arg

uments re gardin

g diffe rences in the dia meter, th ickness, technic al compos ition, and mechani cal prop erties of stainless steel pipe

fittings versus st ainless steel tube fittings. Final Affirmative Scope Ruling , at 10-11, Pl.’s App., Doc. 1, at 10–11. Regarding the ultimate use of the product, Commerc e defended the validity of determining ultimate uses in part by the ultimate users of the product. Id. at 13, Pl.’s App., Doc.C OURT N O . 02-00073 P AGE 16

1, at 13. Commerce then rejected Top Line’s contention that a sanitary /hygienic tube fitting—as opposed to a pipe fitting—is alway s used for convey ing food, beverage, a

nd pharmaceutical products. Id. at 13, Pl.’s App., Doc. 1, at 13. The Department supported this position by citing Top Line’s admission that pipe fittings may be used for “dirty

” applications in any kind of manufacturing f

acility, includin

g those i n the dair y, f ood, beve rage, and phar

maceutic al proce ss industries. Id. at 13, Pl.’ s App. , Doc. 1, at 1 3 (cit ing Lette r from Re ed Smith

(May 11, 2001), a

t 3, Pl.’s App., Doc. 4, at 3) . On this basis, Commerce concluded that the uses for tube and pipe fittings overlap. Id. Commerce explained the significance of this overlap by referring to its 1993 ruling on A774 pipe fittings. According to Commerce , the A774 ruling demonstrated that “meeting one or more of severa l factors [listed in the scope section of the Order ] will cause a product to fall within the scope of the [ Order ].” Final Affirmative Scope Ruling , at 13–14, Pl.’s App., Doc. 1, at 13–14.
In te rms of the

expectat ions of the

ultimate p

urchase r, Commer

ce rea soned tha

t, becau se Top Line and Petitioners share common distributers, the re cord indicates “that pipe and tube fittings are being sold to the same ultimate customer.” Id. at 16, Pl.’s App., Doc. 1, at 16. According to Commerce, the expectations of the ultimate purcha sers of tube fittings are similar to the expectations of the ultimate purchasers of pipe fittings because the products have similar uses, applications, channels of trade, and manners of a dvertising and display

. Id. Regarding channels of tra de, Commerce observed that Top L ine did not contest the fact that it shares common distributors with Petitioners, who sell stainless steel butt-weld pipe fittings. Id. at 17, Pl.’ s App., Do c. 1, at 17 . Commerc e used thi s commona lity to support

itsC OURT N O . 02-00073 P AGE 17

determination that Top Line’s tube fittings ar e within the scope of the Order

. Final Affirmative Scope Ruling , at 17, Pl.’s App., Doc. 1, at 17. Commerce analy

zed the manner of advertising and display as the last step in its inquiry. The Depa rtment ag reed wit h Top L ine that it s tube fitt ings we re sold on separa te produc t lists, in separa te sections of cat

alogue s, and on s eparat

e segme nts of web sites, but d

iscounte d these

co ns id er at io ns on th e g ro un d t ha t T op Lin e’ s m ar ke ti ng ch oi ce s a re no t p ro ba ti ve of in du st rywide marketing practices. Id. at 19, Pl.’s App., Doc. 1, at 19. Commerce then determined that Top Line’s tube fittings are not distinguished from the subject merchandise by their method of adverti sing and

display because Top L ine uses d

iffere nt termino logy

than does

King L ai, its Taiwanese producer, to describe the same fittings. Id. Top Line filed suit with the court in January 2002. On June 17, 2002, the Company moved for a judgment on the agency record on the grounds that the Final Affirmative Scope Ruling is “unsupported by substantial evidenc e on the record and otherwise not in accor dance with law.” Pl.’s Op. Br. at 1. Oral argume nt on the motion was held on April 6, 2004. The court has jurisdiction over this motion pursuant to 28 U.S.C. § 1581(c) (2000).
DISCUSSION The issue in this case is whether Commerce may construe an antidumping order to cover products which bear a characteristic that cannot be reconciled with the langua ge of the order

. The Antidumping Duty Orde r , in language very

similar or identical to the Petition , Preliminary Determination , and Final Determination before it, stipulates that “[t]he edges of finished pipeC OURT N O . 02-00073 P AGE 18

fittings are beveled.” Antidumping Duty Orde r , 58 Fed. Reg. at

33,250. To

p Line ’s tube f

ittings, whether finished or unfinished, are notbeveled. Second Sc ope Reque st , at 6, Pl.’s App., Doc. 3, at 6.
I. S TAND ARD O F REVIEW The court must sustain Commerce’s scope determination unless it is “unsupported by substantial evidence on the record, or otherwise not in ac cordance with law.” 19 U.S.C. § 1516a(b )(1)(B ) (2000) ; see also Novosteel SA v. United States , 128 F. Supp. 2d 720, 724–725 (Ct. Int’l Trade 2001) . The cou rt give s signif

icant de ferenc e to Commer ce’s inte rpreta tion of its own orders, but a scope determination is not in accordance with the law if it changes the scope of an order or interprets an order in a ma nner contrary

to the order’s terms. See Duferco Steel, Inc

. v. United States , 296 F .3d 10 87, 10 94–95 (Fed. C ir. 20 02) (q uoti ng Eckstrom Indus., I nc. v. United States , 254 F.3d 1068, 1072 (Fed. Cir. 2001)).
II. A PPLICABLE L AW In determining whe

ther a product is within the scope of an antidumping duty order, Commerce is governed by a two-step process set forth in 19 C.F.R. § 351.225(k) (2003). First, § 351.225(k)(1) requires that Commerce make its determination by taking into account “[t]he descriptions of the merchandise contained in the petition, the initial investigation, and the determinations of the Secretary (including prior scope determinations) and the Commission.” 19 C.F.R. § 351.225(k)(1). If those c riteria are not dispositive, Commerce then evaluates the product according to the Diversif ied Produc

ts factors; namely

“(i) [t]he physical chara

cteristics ofC OURT N O . 02-00073 P AGE 19

the product; (ii) [t]he expectations of the ultimate purchasers; (iii) [t]he ultimate use of the product; (iv) [t]he channels of trade in which the product is sold; and (v) [t]he manner in which the product is advertised and display ed.” 19 C.F.R. § 351.225(k)(2). The introductory pa

ragraph of § 351.225 explains that the interpretive rules for scope determinations are necessary to resolve issues that arise because “the descr iptions of subject merchandise contained in the Department’s deter minations must be written in general terms.” See 19 C.F.R. § 351.225(a). Indeed, a common issue in scope cases is whether Commerce acted properly in dete

rmining that a particular product is covered by an order’s general ter

minology. See, e .g. , Novosteel SA v. United States , 284 F.3d 1261, 1264 (Fed. Cir. 2002) (rejecting plaintiff ’s arg ument tha t the antid umping a nd counte rvailing duty orders r equired more spe cific langua ge); Wirth Ltd. v. United States , 22 CIT 285, 294, 5 F. Supp. 2d 968, 976 (1998) (noting that “[the ] absence

of a ref erence to a part icular product in

the Petition does not necessa rily indicate that the product is not subject to an order”). It is important to distinguish such cases from circumstanc es in which an order’s relevant terms are unambiguous. The language of a n order is the “cornerstone” of a c ourt’s analysis of a n order’s scope. See Duferco , 296 F .3d at 1097– 98 (ci ting Eckstrom , 254 F.3d at 1073). Commerce need only

meet a low threshold to show that it justifiably found an a mbiguity in scope language, see Novosteel , 284 F.3d at 1272, but it is not justifiable to identify an ambiguity where none exists. As noted a

bove, Commerce c annot mak e a scope determination tha

t conflicts with an order’s terms, nor can it interpret an orde r in a way tha

t changes the order’s scope. Duferco , 296 F. 3d at 1 087, 1 094–9 5 (quo ting Ericsson GE Mobile Communications v. United States , 60C OURT N O . 02-00073 P AGE 20

6 Even if a potential interpretation is not clearly precluded by

an order’s terms, the interpretation must nevertheless constitute a reasonable construction of those terms: “Scope orders may be

interpreted as including subject merchandise only if they contain lang

uage that specifically inc ludes the subject merchandise or may be reasonably

interpreted to include it.” Duferco , 296 F.3d

at 1089; Smith Corona Corp. v. United States , 915 F.2d 683, 686 (Fed. Cir. 1990) (holding that Commerce cannot construe its scope orde rs to include products that are outside those orders). F.3d 778, 782 (Fed. Cir. 1995)). 6 Here, Commerce “interpreted” the Order in a manner contrary to its terms. Commerce maintains that beveled edges are not necessary

for inclusion in the Order , despite what the Order says. III. T HE A NTIDUMP ING D UTY O RDER The Antidumping Duty Orde r’s scope description begins by providing that “[t]he products subject to this investigation are certain stainless steel butt-weld pipe fittings, w hether finished or unfinished, under 14 inches inside diameter.” 58 Fed. Reg. at 33,250. The remainder of the scope section specifies primarily the potential applications and shapes of the subject merchandise. This language makes it clear that the Order does not apply to all stainless steel butt-weld pipe fittings with an inside diameter under 14 inches, but rather a subset of such fittings. See Eckstrom , 254 F.3d at 1073 (rejecting a construction of the Antidumpin g Duty Order which would cover any

stainless steel butt-weld pipe fittings under the 14 inch diameter limit). Among the sentences describing the subset of fitting s covered by the Order

is the following: “The edges of finished pipe f ittings are beveled.” 58 Fed. Reg . at 33,250. Although the Order’s beveling langua ge is not subject to

interpre tation in th

is context—i.e., because a given fitting either doe s or does not have beveled edges—a review of theC OURT N O . 02-00073 P AGE 21

7 A review of the petition and investigation may assist the interpretation of an order, but “they ca nnot substitute for language in the order itself . . . . a predicate for the interpretive process is language in the orde r that is subject to interpretation.” Duferco , 296 F.3d at 1097.

8 The cour

t can only assume that this lan

guag e was inc luded as p art of the require ments for a petition. “Petitions must contain (among other things) a ‘detailed de scription of the subject merchandise that defines the requested scope of the investigation.’” Novosteel , 284 F.3d at 1271 (quoting 19 C.F.R. 351.202(b)(5)). Petition and the investigation documents confirms that the beveling lang uage is not an aberration that inadvertently found its way into the Order

. 7 Indeed, the beveling requirement has been a consistent feature of the investigation’s scope since it appeared in the Petition : A characteristic of all stainless steel butt-weld pipe fittings is that the edges of finished fittings are beveled so that when place d against the end of a pipe (the ends of w hich have also bee n bevele d) a shal low chan nel is cre ated to accommodate the ‘bead’ of the weld whic h joins the fittings to the pipe.
Petition , at 4, Pl.’s App., Doc. 3, Ex. 4, at 4. 8 After its appearance in the Petition , the beveling requirement appeared in each of Commerce’s pronouncements as it proceeded with the investig ation. With C ommerce ’s notice that it wa s initiating

an invest igation —its first opportunity to publicize the scope—it stated in the scope sec tion that “[t]he edges of finished fittings are beveled.” Notice of Initiation of I nvestigation , 57 Fed. Reg. at 26,645. The same exact sentence appears in the scope section of the Preliminary Deter mination . 57 Fed. Reg. at 61,047. After the interested parties commented on the Preliminary Deter mination , Commerce made two pertinent changes to the scope lang uage with the issuance of the Final Determination

. First, the beveling sentence was c hanged to refer to “pipe fitting s” instead of simply “fittings.” Final Determination , 58 Fed. Reg. at 28,556. Second, the scope section of the FinalC OURT N O . 02-00073 P AGE 22

9 As an ant

idumping order c annot be i ssued without affir mative de terminat ions of bot

h the I TC and Comme

rce, it is important

that the sa

me ty pe of mer chandise be invest igated by b oth agencies. Determination

contained two additional paragraphs setting forth Commerce’s determination that pipe fittings conforming to specification A774 are covered by

the scope. Id. While the Final Determination

does not state that A774 fittings do not have beveled edge s, it makes parenthetical reference to the Concurrence Memorandum , which does so. Concurrence Memorandum , at issue 3, Pl.’s App., Doc. 3, Ex. 11 at 4. Despite the reference to A774 fittings, the Final Determination retained the scope languag e describing the subject merchandise a s having beveled edges. The beveled edge stipulation was aga in repeated in the Order , which removed the parenthetical reference to the Concurrence Memorandum . 58 Fed. Reg. at 33,250. The I TC also characte

rized the s

ubject me rchandi se as hav

ing bev eled edges. 9 The Final Injury Determination

incorporated by

reference the product desc ription set forth in the Korea Final Injury

Determination

. Final Injury Determination , USITC Pub. 2641 at *1. The second and third sentences of that product description discuss beveling as a distinguishing feature of the subject me

rchandi se: The beveled edges of butt-weld fitting s distinguish them from other types of pipe fittings, such as threaded, grooved, or bolted fittings, which rely on different fastening methods. When placed against the e nd of a beveled pipe or another fitting, the beveled edges form a shallow channel that accommodates the "bea d" of the we ld that fa stens the two adjoin

ing piec es. Korea Final I

njury Deter

mination , USITC Pub. 2601 at *27–*28. Despite the consistent use of beveled edges to he lp define the scope in the Order andC OURT N O . 02-00073 P AGE 23

other relevant documents, Commerce applied the § 351.225(k) c riteria in the instant proceeding as if the Order’s scope consisted of general terms that re quired significant interpretation. Such efforts were unnecessary . Any potential ambig uities in this case—for example, the distinction between pipe and tube fittings—are re ndered moot by the irr

econcilability of the Order’s beveling sentenc e with the

edging charac teristic s of Top L

ine’s fit tings. There is no thing mor e to interpret: the plain language of the Order does not encompass Top Line’s non-be veled fittings. This conclusion results from the Order’s use of unequivocal language to describe the edges of the subject merchandise. The Order does not provide that the edges of finished pipe fitt ings “may be”

or “are genera

lly” beveled; e ither the edges are bevele d or the fitting is not covered. This either/or proposition must be addressed before reaching the second stag e of the interpretive process. While application of the Diversif ied Produc

ts criteria is appropriate in a

case suc h as Novosteel , where the plaintiff could not identify “a ny lang uage in any

of the sources (the petitions and the initial determinations by Commerce and the ITC) used to initially construe those Orders that would exclude its . . . product,” 284 F.3d at 1270, the o ppo si te i s t rue her e. In the Petition , the Notice of Initiation of I nvestigation , and the Preliminary Deter mination , and as well as in the Final Determination and the Order , the scope description includes a sentence requiring beveled edge s, a sentence that cannot logically be construed to describe Top L ine’s fittings. Beveling is not the only

characteristic which can be asc ertained without extensive inquiry and which the Order , by the logic of its language, requires f or inclusion within its scope. For example, the scope section begins by describing the subject merchandise as c ertain fittings whichC OURT N O . 02-00073 P AGE 24

are “under 14 inches inside diameter.” Antidumping Duty Orde r , 58 Fed. Reg. at

33,250. I

t is elementary

to determine which fittings have an inside diameter under 14 inches and which do not. There is also no doubt that the Order does not cover fittings with inside diameters of grea ter than 14 inches. This conclusion is inescapable, even though the Order does not affirmatively

and explicitly exclude such fittings. In contrast to chara

cteristics that can be clearly ascertained and which the Order requires of subject merchandise in unequivocal langua ge, other aspects of the scope description leave room for interpretation. The second parag raph of the Order’s scope section provides that “[t]he subject me

rchandi se is used

where one or mor

e of the f ollowing condition s is a factor in design ing th e pipi ng system ,” and then l ists five co ndit ions , such as the presen ce of hi gh temperatures. Id. , 58 Fed. Reg. at 33,250. Through the use of the phrase “one or more,” the Order gives Commerce a certain amount of room to interpr et whether a product may be included within the scope, based on the number and ty pe of conditions the product fulfills. See Eckstrom , 254 F.3d at 1072–73 (discussing the significance of the Order’s specification that subject merchandise meet “one or more” of the five conditions of use). The Order

also desc ribes the possible shapes of

the subje ct fitting s in gene ral term s: “Pipe fittings come in a variety of shapes with the following five shapes the most basic: ‘elbows’, ‘tees’, ‘reducers’, ‘stub ends’, a nd ‘caps’.” 58 Fed. Reg. at 33,250. The Order does not require that the su

bject mer chandise conform to a part icular shape or g

roup of shapes. Again, this terminolo gy

allows Commerce r

oom to inter

pret whe ther a given prod

uct bears a shape

that is covered by

the scope.C OURT N O . 02-00073 P AGE 25

10 The forc e of an or

der’s pl ain lang

uage is so grea t that, whe

re the or der’s la nguag e is clearly ina

pplicable to a plaintiff’s product, the imposition of duties on such a product constitutes a mere ministerial error that may be protested to Customs instead of Commerce. See Xerox Corp. v. United States , 289 F.3d 792, 795 (

Fed. Cir . 2002) (f

inding pl aintiff’ s belts to be clearly outside the scope of an order pertaining to be lts used for power transmission because they were not used for power transmission and were not constructed with the mater ials listed in the order). The cont rast betw een thes e gene

ral term s and the b eveled e dge lan guag e is clea

r. While the Order’s language allows for Commerce to make an affirmative scope determination on a fitting that is not used where high temperatures a re a factor in designing the piping system and where t he fit ting d oes no t bear a n “elb ow” sh ape, i t does not p ermit Comm erce to inclu de fit tings that do not have beveled edges. Commerce is bound by “the general requirement of defining the scope of antidumping and countervailing duty orders by the a

ctual language of the or

ders.” See Duferco , 296 F.3d

at 1098. An order ca

nnot be int

erpret ed broad ly w hen a bro ad constr

uction is “belied by the te

rms of the Order itself.” Id. (quot ing Eckstrom , 254 F.3d at 1073). The only exception to this rule occurs in certain situations where Congress, out of conc ern that orders might be circumv ented, pr

ovided Com

merce w ith discre tion to make

clarifi cations that would otherwise conflict with an order’s literal scope. Wheatland Tube Co. v. United States , 161 F.3d 1365, 1370 (Fed. Cir. 1998) (discussing 19 U.S.C. § 1677j(d)). A circumvention deter mination is not at issue here. In the rema ining areas of scope determinations, “Cong ress intended the language of the orde

rs to govern.” Duferco , 296 F.3d at 1098. 10C OURT N O . 02-00073 P AGE 26

11 In this case, some tension exists between Commerce’s duty to abide by the lang

uage of its orders and the inclusion of non-beveled A774 fittings in the Final Determination , which references the Concurrence Memorandum . “Commerce must either act in accord with its prior, similar scope determinations or else provide ‘rational reasons f or deviating’ from them.” Novosteel , 284 F.3d at 1271 (discussing this Court’s holding in Springwater Cookie & Confections, Inc. v. United States , 20 CIT 1192, 1196 (1996)). Commerce suggests that one brief, ill-reasoned section of the Concurrence Memorandum should prevail over its duty to abide by t he clea r langu age of its order . To demon strate the error of this ap proach, it is nece ssary

to examine the flaws of the A774 ruling, even though it is not before the court. IV. C OMMERCE ’ S P RIOR I NCLU SION OF N ON -B EVELE D A774 F ITT INGS Perhaps because it cannot otherwise avoid the Order’s beveling language , the Government relies entirely on the fact that Commerce included non-beveled A774 fitting s in the Final Determination : “Commerce’s ruling upon A774 fittings shows that beveling is not an absolute require ment for a

product t o fall with

in the sco pe of the order.” Def.’s B r. at 26. T

his argument presumes that the Concurrence Memorandum’s A774 ruling carries the weig ht of preced ential au thority . The ruli

ng does not deser ve such tr eatment i n this cas e: it was ma

de at a la te st ag e i n t he in ve st ig at io n a nd in ir re gu la r f as hi on ; w as re ac he d w it ho ut a t ho ro ug h i nq ui ry; and was based on unpersuasive reason ing. 11
A. The Latene ss and Irre gularity o f the A774 R uling By including

a product that cannot be reconciled with the omnipresent be veling language, the A774 ruling purports to amend the investigation’s scope concurre nt with the issuance of the Final Determination , a very la te stage in the investigation. “Commerce re tains broad discretion to define and clarify the scope of an antidumping investigation in a manner which reflects the intent of the petition.” Mitsubishi Heavy I ndus., Ltd. v. United States , 21 CITC OURT N O . 02-00073 P AGE 27

1227, 1232, 986 F. Supp . 1428 , 1433 (1997 ) (quo ting Minebea Co. v. United States , 16 CIT 20, 22, 782 F. Supp. 117, 1 20 (1992) ); but see Royal Bus. Mac h., Inc. v. United States , 1 CIT 80, 87, 507 F. Supp. 1007, 1014 (1980) (discussing the constraints of prior administrative action: “Ea ch stage of the statutory

proceeding maintains the scope passed on fr om the previous stage”). There is no clear point during the course of an antidumping investigation at which Commerce loses the ability to adjust the scope, but Commerce’s discr etion to define and clarify the scope of an investigation is limited in part by conce rns for the finality of

administrative action, which caution against including a product that was understood to be excluded at the time the investigation began. Mitsubishi , 21 CIT at 1231-32, 986 F. Supp. at 1433. The inclusion of A774 fittings raises concerns for the f inality and reg

ularity of administrative action because it occurred late in the investig ation; i.e., after completion of the ITC investigation and concur rent with the issuance of the Final Scope Determination . In Mitsubishi , the Court affirmed Commerce’s scope determination in part be cause the clarification occurred early

in the process (upon the issuance of the notice of investiga tion), thereby alleviating concerns of administrative finality and regularity . The ruling in Mitsubishi also demonstrated that, at some point, Commerce may , if it sees fit, delete some language f rom the petition’s description of the subject merchandise in order to “furthe r clarify ” the scope of theC OURT N O . 02-00073 P AGE 28

12 At issue in that case was the definition of “unassembled components,” and Commerce ’s clari fication of that te rm was upheld in par

t becaus e Commerc e had not c onsistentl y interpreted “unassembled” and “incomplete” as two mutually exclusive terms. Id. , 21 CIT at 1232, 986 F. Supp. at 1434. The Court refrained from deciding whether Commerce may contract the scope of an investigation, however. Id. , 21 CIT at 1230 n.6, 986 F. Supp. at 1432 n.6. investigation. 12 Id. , 21 CIT at 1232, 986 F. Supp. at 1430. Because Commerce in the instant case rule d on non-beveled A774 fittings at a much later stage than the change in Mitsubishi —i.e., concurrent with the issuance of the Final Determination

—it co uld n ot hav e remov ed the bevel ing sen tence f rom th e scop e langu age without compromising the integrity of the investigation’s prior stages. If, however, Commerc e felt that it was too late to “clarify ” the scope by

deleting the beveling langua ge, it should have declined to include the A774 fittings, which were outside the plain lang uage of the Order

. Instead of pursuing a

n approach that would ensure the integrity and coherence of the scope language, Commerce include d A774 fittings without removing the sentence requiring beveled edges. Commerce now proposes that the collater al effect of the A774 ruling is to nullify the beveling language , even while the language remains in the Order . Commerce cites no statute or regulation authorizing it to clarify or amend an investigation’s scope by collateral nullification. Such an irregular maneuver doe s not merit judicial endorsement as a valid administrative precedent, especially

considering the serious finality concerns it raises.
B. The Lack of a Thorough Inquiry The precedential value of the A774 ruling is undermined not only by its timing and irregularity , but also by the considera tion that the ruling was not the outcome of a standard,C OURT N O . 02-00073 P AGE 29

thorough scope determination process. Commerce’ s general obligation to follow “prior, similar scope determinations,” Novosteel , 284 F.3d at 1271, is premised in part on the fact that the prior decisions are indeed determinations, with formal procedure s to ensure reliable results. See Springwater Cook

ie , 20 CIT at 1195 (requiring Commerce to abide by

prior final scope determinations or provide rational reasons for deviating from them). Unlike the extensive procedures that governed Commerc e’s response to Top Line’s sc ope requests, the A774 ruling came in response to an inquiry that was submitted during the comment period that followed the Preliminary Deter

mination

. See Antidumping Duty Orde r , 58 Fed. Reg. at

33,250 (“

After it with drew fr om th is in vesti gation , [TY H] in quire d whet her A77 4 type sta inles s stee l pip e fitt ings were included within the scope of the investigation”). Commerc e did not issue a preliminary affirmative scope ruling and thus did not have the bene fit of the commentary that might have followed. It did not issue a final affirma tive scope ruling that provided a thorough explanation for its decision. Instead, A774 fittings we re included within the scope of the Order on the bas is of a two-paragraph tea

m recommendation in the Concurrence Memorandum , which was not included or referenced in the Order . Accordingly , the rationale for following the A774 ruling a s a “prior, similar scope determination” fails.
C. Unpersuasi

ve Reaso ning The precedential value of the A774 ruling is undermined not only by its procedural flaws and superficial level of inquiry , but also by the limitations of its substantive claims. While the ruling’s brief discussion

admits that “[t]he scope does state that the edges of finished fittings are beveled,” it counters with nothing more than unpersuasive a ssertions: (1) that the statementC OURT N O . 02-00073 P AGE 30

pertain ing to be veled ed ges “is not a req uiremen t;” (2) that the sta

tement is n

ot made “ with respect to unfinished fittings;” and (3) that the scope lang uage “only

specifically e

xcludes threaded, bolted and grooved fittings, a nd none of these criteria apply to A774 fittings.” Concurrence Memorandum , at issue 3, Pl.’s Ap

p., Doc. 3 , Ex. 11 at 4. These c ursory statemen ts provide no rational basis for nullify ing the plain language of

the Order

as it pertains to Top Line’s tube fittings. The firs t asserti on—that be veling i s not a re quireme

nt—is made

without providing any basis in sta

tute or re gulation for disti nguishin g betwe en “req

uiremen ts” and ot her alle gedly superfl uous lang uage. In its

brief to t he court , the Gove

rnment pr omotes this

distinction as if it needs no explanation: “previous scope rulings have consistently held that beveling is not anC OURT N O . 02-00073 P AGE 31

13 Which prior scope rulings these are is not clear, a s the Government provides no citations after making this claim and refers only to the A774 ruling in other sections of its brief. Top Line, in contrast, cites two previous scope determinations—interpreting a different orde r on butt-wel d fitting s—in which Commerce

found be veling t o be crit ical in pla cing the products outside the scope of the order. See Stainless Steel Butt-Weld Pipe and Tube Fittings from Japan , 60 Fed. Reg. 54,213 (Dep’t Commerce Oc t. 20, 1995) (Notice of Scope Rulings) (“A characteristic of all stainless steel butt-weld pipe fittings is that the edg es of finished fittings are beveled so that when placed aga inst the end of a pipe (the ends of which have also bee n beveled) a shallow channel is created to accommodate the ‘bead’ of the weld which joins the fittings to the pipe”); Stainless Steel Butt-Weld Pipe and Tube Fittings from Japan , 61 Fed. Reg. 40,194 (Dep’t Commerce Aug. 1, 1996) (Notice of Scope Ruling s) (“[W]e conclude that [the merchandise] whose ends are square-cut, not bevele d, and thus, not designed to be butt-welded, are not the same merchandise as that covered by the scope order”). These two scope de terminations turned on the issue of beveling alone. Commerce contends that, because its determinations must be based upon the re cord established in the case before it, the scope established in one inve stigation should have no bearing upon the determination of the scope in anothe r investigation. Def.’s Br. at 24. The determinations the

mselves, however, are pub lic reco rds and ma

y be consider ed with re spect to Commerce’s past practices. Commerce’s past pra ctices in Stainless Steel Butt-Weld Pipe and Tube Fittings from Japan are par ticul arly relev ant be cause t he pet itio n in t hat cas e used langua ge identica l to that of

the instan

t Petition to characterize the subject merchandise as ha ving beveled edges. essential physical cha

racteristic for a product to fall within the scope of this order .” 13 Def.’s Br. at 35. What

is essenti al, acc ording t

o the Gove

rnment, is that the components of the fittings are butt-welded. Def.’s Br. at 35 (descr ibing butt-welding as the “most important aspect” of the Order). The implication is that other specifications in the Order may be ig

nored when they impede the Order’s application to a given butt-welded product. See id. If Commerce is corre ct on this point, the beveling characteristic may be ignored as surplusage. Rec ourse to the § 351.225(k)(2) Diversif

ied Produc

ts criteria might then be appropriate. Ther e is, however, little, if any, support for the

proposition that some portions of the physical descr iption of the subject merchandise are essential while others ar e superfluous.C OURT N O . 02-00073 P AGE 32

The Federal Circuit rejected a pr evious attempt by Commerce to interpr et the Antidumping Duty Orde

r as “covering any

stainless steel butt-weld pipe fittings in diameter,” because such a broad construction would rende r some of the scope languag e as “mere surplusage.” Eckstrom , 254 F.3d at 1073. Even though the Eckstromplain tiff’ s pip e fitt ings were intended for butt-weld connections, this was an insuffic ient basis for inclusion within the order

. Id. Commerce

is not at lib erty

to ignor e the pla in terms of

an order on the the ory

that a broad interpretation of the order will best promote the intent of the petitioners. To a llow for unsubstantiated distinctions between a scope’s “requirements” and other, supposedly nonessential language is to invite arbitrarine ss and uncertainty into the pr ocess by which Commerc e administers antidumping duty orde rs. Co mm er ce ’s ap pr oa ch al so co ns ti tu te s a n i mp ro pe r h ei gh te ni ng of th e s ta nd ar d f

ac ed by a plaintiff seeking to exclude

its produc

t. Commerc e canno t abandon an order ’s scope

standar d in favor of “a different, more e xacting one” that a plaintiff must meet in order to have its product excluded from the scope. See Ericsson GE Mobile Communications v. United States , 60 F.3d 778, 783 (Fed. Cir. 1995) (rejecting Commerce ’s imposition of a “rigid requirement[] of proof of commercial availability”

where the order was much less specific in terms of exclusionary end uses). A differe nt, more e

xacting e xclusionar

y st andard i s creat

ed wher e Commerc e uses a selective reading to nullify portions of an order’s scope language which would otherwise exclude a plaintiff’s product. Commerce imposed such a standard on Top L ine when it adopted the reasoning of the A774 ruling. I n so doing, Commerce “stray ed beyond the limits of interpretation and into the realm of amendment.” See id. at 782.C OURT N O . 02-00073 P AGE 33

In the second of its unpersuasive assertions, the Concurrence Memorandum observes that the beveling languag e does not pertain to unfinished fittings. Concurrence Memorandum , at issue 3, Pl. ’s App., D oc. 3, Ex. 11 at 4. The releva nce of th is observ ation to A7 74 fitting s is unclear, as the Concurrence Memorandum gives no indication that they are imported in an unfinished state. See id. In any case, the observation is clearly irrelevant with regard to the products at issue here. Top Line’ s fittings do not have beveled edges, re gardless of whether they are finished or unfinished. There is no record e vidence to suggest that unfinished versions of Top Line’s fittings would be beve led after entry into the United States. As for the Order’s failure to exclude non-beveled fittings explicitly , Duferco extinguished the theory that a pr

oduct could be covered by an order merely

because the order does not explicitly exclude it. 296 F.3d at 1096. Here, the beve ling sentence immediately precedes the explicit exclusion sentence, and there is no indication that one sentence helps to define the scope while the other does not. Accordingly, Commerce proved little, if any thing, by obser

ving that “our scope language

only specifica

lly excludes threaded, bolted a nd grooved fittings, and none of these criteria apply

to A774 fittings.” Concurrence Memorandum , at 4 , Pl.’ s App. , Doc . 3, Ex. 11 at 4.
CONCLUSION Because Commerce cannot interpr et an antidumping order in a manner contra ry to the clear terms that were a consistent part of the investigation, Top Line’s fittings ar e outside the scope of the Antidumping Duty Orde r . No recourse to the § 351.225(k)(2) DiversifiedC OURT N O . 02-00073 P AGE 34

Productscriteria is warranted . Commerc e’s rulin g to the c ontrary

was ther efore n ot in accordance with the law. Accor dingly, the motion for judg ment on the agency

record is granted, judgment shall be entered for Top L ine, and Commerce must exclude Top Line’s stainless steel butt-weld tube fittings from the scope of the Antidumping Duty Orde r .

/s/ Jane A. Re stani Jane A. Restani Chief Judge

Dated: This 4th day of June, 2004. New York, New York