Slip Op. 04–59

UNITED STATES COURT OF INTERNATIONAL TRADE

________________________________________

 :

ALLEGHENY BRADFORD :

CORPORATION, d/b/a TOP LINE :

PROCESS EQUIPMENT COMPANY, :

 :

Plaintiff, :

 : Court No. 02-00073

v. :

 :

UNITED STATES, :

 :

Defendant. :

_______________________________________ :

[Antidumping duty order scope determination reversed.]

Dated: June 4, 2004

Womble Carlyle Sandridge & Rice PLLC (James K. Kearney) for plaintiff.

Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Jeanne E.

Davidson, Deputy Director, Commercial Litigation Branch, Civil Division, United States

Department of Justice (David S. Silverbrand, James H. Holl, III, and Paul D. Kovac), Philip J.

Curtin, Attorney, Office of Chief Counsel for Import Administration, United States Department

of Commerce, Christopher Chen, Senior Attorney, Office of Chief Counsel, United States

Bureau of Customs and Border Protection, of counsel, for defendant. 

OPINION

RESTANI, Chief Judge:

INTRODUCTION

Plaintiff Allegheny Bradford Corporation, d/b/a Top Line Process Equipment Company

(“Top Line”) moves for judgment on the agency record that its stainless steel butt-weld tube
COURT NO. 02-00073 PAGE 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. Department of Commerce (“Commerce” or “Department”). Final Scope Ruling on

the Antidumping Duty Order on Stainless Steel Butt-Weld Pipe Fittings from Taiwan: Allegheny

Bradford Corporation d/b/a Top Line Process Equipment (Dep’t Commerce Dec. 10, 2001), P.R.

29:13:33, Pl.’s App., Doc. 1, notice published at 66 Fed. Reg. 65,899 (Dep’t Commerce Dec. 21,

2001) [hereinafter Final Affirmative Scope Ruling]. The underlying antidumping 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) [hereinafter

Antidumping Duty Order or Order]. Because its tube fittings are unambiguously outside the

scope of the Antidumping Duty Order, Top Line’s motion is granted. 

BACKGROUND

I. THE ANTIDUMPING DUTY INVESTIGATION

The Antidumping Duty Order 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 fourteen (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 of several pages, the petition describes the subject merchandise as follows:

• classifiable under heading 7307.23 of the Harmonized Tariff Schedule;

• designated under heading A403/A403M–1991 of the standards developing
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organization, ASTM;

• having American National Standards Institute (“ANSI”) dimensional

specifications B16.9–1986 and B16.28–1986;

• including finished or unfinished fittings capable of meeting these specifications

• excluding “threaded, grooved, and bolted fittings;”

• “used to connect pipe sections in piping systems where conditions require welded

connections, as distinguished from fittings designed for other fastening methods

(e.g., threaded, grooved, or bolted fitting);”

• “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

system itself must be prevented; (3) high temperatures (in excess of 300° F) are

present; (4) extreme low temperatures are present; (5) high pressures are

contained within the system;”

• “used in so-called ‘process’ piping systems such as chemical plants, foot

processing facilities, breweries, cryogenic plants (including basic oxygen steel

processing), waste treatment facilities, pulp and paper production facilities, gas

processing (gas separation) facilities, and commercial nuclear power plants and

nuclear navy applications (in reactor lines and water lines);”

• coming in “several basic shapes: ‘elbows’, ‘tees’, ‘reducers’, ‘stub ends’ and

caps’;”

• having edges that, for finished fittings, “are beveled so that when placed against

the end of a pipe (the ends of which have also been beveled) a shallow channel is

created to accommodate the ‘bead’ 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 formulated 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

systems where conditions require welded connections. The subject merchandise 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

system itself must be prevented; (3) high temperatures are present; (4) extreme
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low temperatures are present; (5) high pressures are contained within the system.

Stainless steel butt-weld pipe fittings come in a variety of shapes, with the

following five shapes the most basic: "elbows", "tees", "reducers", "stub ends",

and "caps". The edges of finished fittings are beveled. Threaded, grooved, and

bolted fittings are excluded from these investigations. The stainless steel

butt-weld pipe fittings subject to these investigations are classifiable under

subheading 7307.23.00 of the Harmonized Tariff Schedule of the United States

(HTSUS).

Initiation of Antidumping Duty Investigations: Certain Stainless Steel Butt-Weld Pipe Fittings

from the Republic of Korea and Taiwan, 57 Fed. Reg. 26,645 (Dep’t Commerce June 15, 1992)

[hereinafter Notice of Initiation of Investigation]. When Commerce issued its preliminary

determination roughly six months later, the scope language underwent minor changes, which

consisted primarily of the addition of the word “certain” in its reference 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 pipe fittings (pipe fittings) are used to connect

pipe sections in piping systems where conditions require welded connections. 

The subject merchandise 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 system itself must be

prevented;

(3) High temperatures are present;

(4) Extreme low temperatures are present;

(5) High pressures are contained within the system.

[“Stainless steel butt-weld” deleted] Pipe fittings come in a variety of shapes, with

the following five shapes being the most basic: "elbows", "tees", "reducers", "stub

ends", and "caps". The edges of finished fittings are beveled. Threaded, grooved,

and bolted fittings are excluded from these investigations. The pipe fittings

subject to these investigations are classifiable under subheading 7307.23.00 of the
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Harmonized Tariff Schedule of the United States (HTSUS).

Although the HTSUS subheading is provided for convenience and customs

purposes, our written description of the scope of this investigation is dispositive.

Preliminary Determination of Sales at Less Than Fair Value: Certain Stainless Steel Butt-Weld

Pipe Fittings From Taiwan, 57 Fed. Reg. 61,047 (Dep’t Commerce Dec. 23, 1992) [hereinafter

Preliminary Determination] (emphasis added to show changes from Notice of Initiation of

Investigation). 

The Final Determination nearly duplicated the scope language of the Preliminary

Determination, with the addition, however, of two paragraphs regarding A774 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 welded stainless steel butt-weld pipe fittings (pipe fittings) are used to

connect pipe sections in piping systems where conditions required welded

connections. The subject merchandise 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 system itself must be prevented; (3) high

temperatures are present; (4) extreme low temperatures are present; (5) high

pressures are contained within the system.

Pipe fittings come in a variety of shapes, with the following five shapes the most

basic: "elbows", "tees", "reducers", "stub ends", and "caps". The edges of finished

pipe fittings are beveled. Threaded, grooved, and bolted fittings are excluded

from these investigations. The pipe fittings subject to these investigations are

classifiable under subheading 7307.23.00 of the Harmonized Tariff Schedule of

the United States (HTSUS).

Although the HTSUS subheading is provided for convenience and customs

purposes, our written description of the scope of these investigations is

dispositive.

After it withdrew from this investigation, [Tachia Yung Ho Machine Co., Ltd.]
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inquired whether A774 type 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 determine 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 in inside diameter

and can be either finished or unfinished. Our scope language only specifically

excludes threaded, bolted and grooved fittings, and none of these criteria apply to

A774 fittings. Therefore, we determine that A774 fittings are included in the

scope of this investigation. (See "Concurrence Memorandum", dated May 7, 1993

for further discussion).

Final Determination of Sales at Less than Fair Value: Certain Stainless Steel Butt-Weld Pipe

Fittings From Taiwan, 58 Fed. Reg. at 28,556 (Dep’t Commerce May 14, 1993) [hereinafter

Final Determination] (emphasis added to show changes from Preliminary Determination). The

additional section regarding A774 fittings refers to the Concurrence Memorandum, which

explains how the non-beveled A774 fittings could be included within the investigation’s scope:

“The scope does state the edges of finished fittings are beveled; however, this is not a

requirement nor is this stated with respect to unfinished fittings. Finally, our scope language

only specifically excludes threaded, bolted and grooved fittings, and none of these criteria apply

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. THE COMMISSION’S INJURY INVESTIGATION

Concurrent with Commerce’s dumping investigation, the International Trade

Commission (“ITC” or “Commission”) instituted its injury investigation on December 17, 1992. 

In providing notice of the initiation of its injury investigation, the ITC gave only a brief
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description of the subject merchandise as “certain stainless steel butt-weld pipe fittings, provided

for in subheading 7303.23.00 of the [HTSUS].” Certain Stainless Steel Butt-Weld Pipe Fittings

from Korea and Taiwan: Institution and Scheduling of Preliminary Antidumping Investigations,

57 Fed. Reg. 22,486 (Int’l Trade Comm’n May 28, 1992). Later, on June 3, 1993, the ITC

transmitted to Commerce its final affirmative determination that a U.S. industry was materially

injured by less than fair 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) [hereinafter Korea Final Injury Determination]. The product

description in the Korea Final Injury Determination begins as follows:

Stainless steel butt-weld pipe fittings are used to connect pipe sections where

conditions require permanent, welded connections and resistance to corrosion or

oxidation and extreme temperatures as well as the ability to withstand pressure. 

The beveled edges of butt-weld fittings 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 end of a beveled pipe or another

fitting, the beveled edges form a shallow channel that accommodates the “bead”

of the weld that fastens the two adjoining pieces.

Id. at *27–*28. 

III. THE ANTIDUMPING ORDER

After the ITC made its affirmative injury determination and Commerce issued the Final

Determination, the Department issued the definitive scope language in the Final Antidumping
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Order. The Order altered the final paragraph of the Final Determination to couch the A774

ruling in the past tense and removed the reference to the Department’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 stainless steel butt-weld pipe fittings (pipe fittings) are used to

connect pipe sections in piping systems where conditions require welded

connections. The subject merchandise 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 system itself must be prevented; (3) high

temperatures are present; (4) extreme low temperatures are present; (5) high

pressures are contained within the system.

Pipe fittings come in a variety of shapes, with the following five shapes the most

basic: "elbows", "tees", "reducers", "stub ends", and "caps". The edges of finished

pipe fittings are beveled. Threaded, grooved, and bolted fittings are excluded from

these investigations. The pipe fittings subject to these investigations are

classifiable under subheading 7307.23.00 of the Harmonized Tariff Schedule of

the United States (HTSUS).

Although the HTSUS subheading is provided for convenience and customs

purposes, our written description of the scope of these investigations is

dispositive.

After it withdrew from this investigation, Tachia Yung Ho Machine Industry Co.,

Ltd. (TYH) inquired whether A774 type 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 determined 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 specifically excludes threaded, bolted and

grooved fittings, and none of these criteria apply to A774 fittings. Therefore, we

determined that A774 fittings are included in the scope of this investigation. 

[“(See ‘Concurrence memorandum’, dated May 7, 1993 for further discussion).”

deleted]

Antidumping Duty Order, 58 Fed. Reg. at 33,250 (emphasis added to show changes from Final
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Determination). 

IV. TOP LINE’S FIRST REQUEST FOR A SCOPE DETERMINATION

Top Line did not participate in the pre-antidumping order investigations by Commerce

and the ITC, and did not participate in Commerce’s administration of the Final Antidumping

Order. Top Line did, however, approach Commerce on December 14, 1994, requesting a scope

ruling as to whether its various stainless steel tube fittings with non-welded ends are 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 Scope Request]. Commerce

ruled for Top Line after an initial investigation, concluding that “no formal inquiry is warranted

to determine whether bevel seat fittings, clamp fittings, valves, hangers, and flanges 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 Oct. 20, 1995) [hereinafter First

Scope Ruling]. 

V. TOP LINE’S SECOND SCOPE REQUEST 

Several years after the First Scope Ruling, Top Line received from Customs a Notice of

Action, dated March 8, 2001, informing the company that an entry of its “stainless steel butt weld

pipe fittings” was subject to antidumping duties and requesting a cash deposit 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 Line
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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). 

responded the following month by filing with Commerce a second scope request, which sought a

ruling as to whether the Antidumping Duty Order covers its sanitary/hygienic stainless steel buttweld tube fittings imported from King Lai International Co., Ltd. (“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 Scope Request].2 

In the Second Scope Request, Top Line alleged that its sanitary/hygienic stainless steel

butt-weld tube fittings should be excluded from the Final Antidumping Order because: (1) while

stainless steel pipe, the subject of the Final Antidumping Order, is always designated by inside

diameter, stainless steel tubing, King Lai’s product, is always 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 forth in the Petition; (3) King

Lai’s tube fittings are manufactured and used in different ways than the pipe fittings described in

the Final Antidumping Order; and (4) King Lai’s sanitary/hygienic stainless steel butt-weld tube

fittings are square cut, not beveled. Second Scope Request, at 5–6, Pl.’s App., Doc. 3 at 5–6. 

Responding to the Second Scope Request, a group of manufacturers—including Flowline,

Gerlin, Inc., Shaw Alloy Piping Products, Inc., and Taylor Forge Stainless, Inc.

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

Letter from Collier Shannon Scott to the Secretary of Commerce (May 4, 2001), at 1–2, P.R.
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3

 In a footnote to the First Scope Ruling, Commerce observed that “Top Line

acknowledges that it does market a line of butt-weld tube fittings, such as elbows, tees, and

reducers that do fall under the scope of the order. However, Top Line 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 acknowledgment. Top Line

argues that this purported acknowledgment 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 Reply Br. at 3 (citing See Letter from Reed Smith

(May 11, 2001), at 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

argued that Top Line’s Second Scope Request 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 Line 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 specified the

parameters of its scope request and discussed the points raised 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 and pipe. Id. at 2–4, Pl.’s

App., Doc. 4 at 2–4. Shortly thereafter, Top Line submitted samples of two types of

sanitary/hygienic 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 an
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4

 On June 22, 2001, Top Line and Petitioners submitted rebuttal comments. Letter from

Reed Smith to Secretary of Commerce (June 22, 2001), 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 Edward C. Yang to All Interested

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 Letter]. In commencing the formal scope inquiry, Commerce requested

that interested parties submit comments regarding their products that address the five criteria

originally set 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 physical

characteristics of the product; (2) the ultimate use of the product; (3) the expectations of the

ultimate purchaser; (4) the channels of trade in which the product is sold; and (5) the manner in

which the product is advertised and displayed. Id. at 2, Def.’s Appx. at 87. 

In response to the Formal Scope Initiation Letter, Top Line and Petitioners submitted

comments discussing the Diversified Products Criteria 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 Line Scope Comments]; Letter from Collier Shannon to Secretary of Commerce (June 12,

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

4

 

In discussing the first criteria—physical characteristics—Top Line argued that “‘pipe’ and

‘tube or tubing’ are precise terms describing different products.” Top Line Scope Comments, at

2, Pl.’s App., Doc. 7, at 2. In support of this claim, Top Line alleged that, in contrast to pipe
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fittings, tube fittings have square cut (i.e. non-beveled) ends; are designated by its outside

diameter rather than its inside diameter; and have their wall thickness identified by the term

“gauge” as opposed 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 fittings 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

contrasted these applications with those of pipe fittings, which it described 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 asserted 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 are they used in ‘high pressure’ applications.” Id. at 9, Pl.’s App.,

Doc. 7, at 9.

As for the third criteria—the expectations of the ultimate purchaser—Top Line argued

that because its tube fittings are not used in the same applications as pipe fittings, the

expectations of the ultimate purchaser of sanitary/hygienic stainless steel butt-weld tube fittings

are different from that of the ultimate purchaser of pipe fittings. Id.

Top Line then discussed the fourth criteria, channels of trade, stating that, “to the best of

[its] knowledge and belief,” King Lai 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 identify Top Line as a U.S.
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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. 

Regarding the fifth criteria, the manner of advertising and display, Top Line argued that it

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, whereas Petitioners and other domestic

producers of stainless steel butt-weld pipe fittings do not. Id.

At the conclusion of the comment period, Commerce made a preliminary determination

that Top Line’s sanitary/hygienic stainless steel butt-weld tube fittings are within the scope of the

Final Antidumping Order. Memorandum from Edward C. Yang to Joseph A. Spetrini: 

Preliminary Scope Ruling on the Antidumping 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 regulatory factors to be applied in the

case of ambiguous orders. The Department then gave Top Line and Petitioners an opportunity 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. 26:13:17., Def.’s App. at 169; Letter from Reed Smith to Secretary of Commerce, (Nov. 26,

2001), P.R. 28:13:30, Def.’s App. at 171; Letter from Collier Shannon Scott to Secretary of
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5

 Petitioners argued to Commerce that certain fittings—unfinished fittings, A774 fittings

and those with Schedule 5S wall thickness—were clearly covered by the Order even though they

had square-cut, non-beveled edges like Top Line’s fittings. Letter from Collier Shannon (June

12, 2001), at 4, Def.’s App. at 104. Commerce, however, did not specifically discuss edging in

stating its final position on physical characteristics. 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

Diversified Products criteria. 

First, regarding the physical characteristics of pipes and tubes, Commerce reaffirmed its

preliminary determination 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 sought to clarify certain points from industry publications,

which it had considered when analyzing Top Line’s product in the Preliminary Scope Ruling. 

For instance, Commerce pointed out that statements contained in an article from Fabricator, a

trade journal, rebutted Top Line’s arguments regarding differences in the diameter, thickness,

technical composition, and mechanical properties of stainless steel pipe fittings versus stainless

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, Commerce defended the validity of

determining ultimate uses in part by the ultimate users of the product. Id. at 13, Pl.’s App., Doc.
COURT NO. 02-00073 PAGE 16

1, at 13. Commerce then rejected Top Line’s contention that a sanitary/hygienic tube fitting—as

opposed to a pipe fitting—is always used for conveying food, beverage, and 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 facility, including those in the dairy, food, beverage, and pharmaceutical process

industries. Id. at 13, Pl.’s App., Doc. 1, at 13 (citing Letter from Reed Smith (May 11, 2001), at

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 several 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 terms of the expectations of the ultimate purchaser, Commerce reasoned that, because

Top Line and Petitioners share common distributers, the record 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 purchasers 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 advertising and display. Id. 

Regarding channels of trade, Commerce observed that Top Line 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., Doc. 1, at 17. Commerce used this commonality to support its
COURT NO. 02-00073 PAGE 17

determination that Top Line’s tube fittings are within the scope of the Order. Final Affirmative

Scope Ruling, at 17, Pl.’s App., Doc. 1, at 17. 

Commerce analyzed the manner of advertising and display as the last step in its inquiry. 

The Department agreed with Top Line that its tube fittings were sold on separate product lists, in

separate sections of catalogues, and on separate segments of websites, but discounted these

considerations on the ground that Top Line’s marketing choices are not probative of industrywide 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

advertising and display because Top Line uses different terminology than does King Lai, 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 evidence on the record and otherwise not in accordance

with law.” Pl.’s Op. Br. at 1. Oral argument 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 language of the order. 

The Antidumping Duty Order, in language very similar or identical to the Petition, Preliminary

Determination, and Final Determination before it, stipulates that “[t]he edges of finished pipe
COURT NO. 02-00073 PAGE 18

fittings are beveled.” Antidumping Duty Order, 58 Fed. Reg. at 33,250. Top Line’s tube fittings,

whether finished or unfinished, are not beveled. Second Scope Request, at 6, Pl.’s App., Doc. 3,

at 6. 

I. STANDARD OF REVIEW

The court must sustain Commerce’s scope determination unless it is “unsupported by

substantial evidence on the record, or otherwise not in accordance 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 court gives significant deference to Commerce’s interpretation 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 manner contrary to the order’s terms. See Duferco Steel, Inc.

v. United States, 296 F.3d 1087, 1094–95 (Fed. Cir. 2002) (quoting Eckstrom Indus., Inc. v.

United States, 254 F.3d 1068, 1072 (Fed. Cir. 2001)). 

II. APPLICABLE LAW

In determining whether 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 criteria are not dispositive, Commerce then evaluates the

product according to the Diversified Products factors; namely “(i) [t]he physical characteristics of
COURT NO. 02-00073 PAGE 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 displayed.” 19 C.F.R. § 351.225(k)(2). 

The introductory paragraph of § 351.225 explains that the interpretive rules for scope

determinations are necessary to resolve issues that arise because “the descriptions of subject

merchandise contained in the Department’s determinations 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 determining that a particular product is covered by an order’s general terminology. 

See, e.g., Novosteel SA v. United States, 284 F.3d 1261, 1264 (Fed. Cir. 2002) (rejecting

plaintiff’s argument that the antidumping and countervailing duty orders required more specific

language); Wirth Ltd. v. United States, 22 CIT 285, 294, 5 F. Supp. 2d 968, 976 (1998) (noting

that “[the] absence of a reference to a particular product in the Petition does not necessarily

indicate that the product is not subject to an order”).

It is important to distinguish such cases from circumstances in which an order’s relevant

terms are unambiguous. The language of an order is the “cornerstone” of a court’s analysis of an

order’s scope. See Duferco, 296 F.3d at 1097–98 (citing Eckstrom, 254 F.3d at 1073).

Commerce need only meet a low threshold to show that it justifiably found an ambiguity in scope

language, see Novosteel, 284 F.3d at 1272, but it is not justifiable to identify an ambiguity where

none exists. As noted above, Commerce cannot make a scope determination that conflicts with

an order’s terms, nor can it interpret an order in a way that changes the order’s scope. Duferco,

296 F.3d at 1087, 1094–95 (quoting Ericsson GE Mobile Communications v. United States, 60
COURT NO. 02-00073 PAGE 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 language that

specifically includes 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 orders 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. THE ANTIDUMPING DUTY ORDER

The Antidumping Duty Order’s scope description begins by providing that “[t]he

products subject to this investigation are certain stainless steel butt-weld pipe fittings, whether

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 Antidumping 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 fittings covered by the Order is the

following: “The edges of finished pipe fittings are beveled.” 58 Fed. Reg. at 33,250. 

Although the Order’s beveling language is not subject to interpretation in this

context—i.e., because a given fitting either does or does not have beveled edges—a review of the
COURT NO. 02-00073 PAGE 21

7

 A review of the petition and investigation may assist the interpretation of an order, but

“they cannot substitute for language in the order itself . . . . a predicate for the interpretive

process is language in the order that is subject to interpretation.” Duferco, 296 F.3d at 1097. 

8

 The court can only assume that this language was included as part of the requirements

for a petition. “Petitions must contain (among other things) a ‘detailed description 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 language 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 placed against the end of a pipe (the

ends of which have also been beveled) a shallow channel is created to

accommodate the ‘bead’ of the weld which 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

investigation. With Commerce’s notice that it was initiating an investigation—its first

opportunity to publicize the scope—it stated in the scope section that “[t]he edges of finished

fittings are beveled.” Notice of Initiation of Investigation, 57 Fed. Reg. at 26,645. The same

exact sentence appears in the scope section of the Preliminary Determination. 57 Fed. Reg. at

61,047. After the interested parties commented on the Preliminary Determination, Commerce

made two pertinent changes to the scope language with the issuance of the Final Determination. 

First, the beveling sentence was changed to refer to “pipe fittings” instead of simply “fittings.”

Final Determination, 58 Fed. Reg. at 28,556. Second, the scope section of the Final
COURT NO. 02-00073 PAGE 22

9

 As an antidumping order cannot be issued without affirmative determinations of both

the ITC and Commerce, it is important that the same type of merchandise be investigated by both

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 edges, 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 language describing the subject merchandise as having beveled edges. The

beveled edge stipulation was again repeated in the Order, which removed the parenthetical

reference to the Concurrence Memorandum. 58 Fed. Reg. at 33,250. 

The ITC also characterized the subject merchandise as having beveled edges.9 The Final

Injury Determination incorporated by reference the product description 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 merchandise: 

The beveled edges of butt-weld fittings 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 end of a beveled pipe or another

fitting, the beveled edges form a shallow channel that accommodates the "bead"

of the weld that fastens the two adjoining pieces.

Korea Final Injury Determination, USITC Pub. 2601 at *27–*28. 

Despite the consistent use of beveled edges to help define the scope in the Order and
COURT NO. 02-00073 PAGE 23

other relevant documents, Commerce applied the § 351.225(k) criteria in the instant proceeding

as if the Order’s scope consisted of general terms that required significant interpretation. Such

efforts were unnecessary. Any potential ambiguities in this case—for example, the distinction 

between pipe and tube fittings—are rendered moot by the irreconcilability of the Order’s

beveling sentence with the edging characteristics of Top Line’s fittings. There is nothing more to

interpret: the plain language of the Order does not encompass Top Line’s non-beveled 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

fittings “may be” or “are generally” beveled; either the edges are beveled or the fitting is not

covered. This either/or proposition must be addressed before reaching the second stage of the

interpretive process. While application of the Diversified Products criteria is appropriate in a

case such as Novosteel, where the plaintiff could not identify “any language 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 opposite is true here. In

the Petition, the Notice of Initiation of Investigation, and the Preliminary Determination, and as

well as in the Final Determination and the Order, the scope description includes a sentence

requiring beveled edges, a sentence that cannot logically be construed to describe Top Line’s

fittings. 

Beveling is not the only characteristic which can be ascertained without extensive inquiry

and which the Order, by the logic of its language, requires for inclusion within its scope. For

example, the scope section begins by describing the subject merchandise as certain fittings which
COURT NO. 02-00073 PAGE 24

are “under 14 inches inside diameter.” Antidumping Duty Order, 58 Fed. Reg. at 33,250. It 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 greater

than 14 inches. This conclusion is inescapable, even though the Order does not affirmatively and

explicitly exclude such fittings. 

In contrast to characteristics that can be clearly ascertained and which the Order requires

of subject merchandise in unequivocal language, other aspects of the scope description leave

room for interpretation. The second paragraph of the Order’s scope section provides that “[t]he

subject merchandise is used where one or more of the following conditions is a factor in

designing the piping system,” and then lists five conditions, such as the presence of high

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 interpret whether a product may be included

within the scope, based on the number and type 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 describes the possible shapes of the subject fittings in general terms: 

“Pipe fittings come in a variety of shapes with the following five shapes the most basic: ‘elbows’,

‘tees’, ‘reducers’, ‘stub ends’, and ‘caps’.” 58 Fed. Reg. at 33,250. The Order does not require

that the subject merchandise conform to a particular shape or group of shapes. Again, this

terminology allows Commerce room to interpret whether a given product bears a shape that is

covered by the scope. 
COURT NO. 02-00073 PAGE 25

10 The force of an order’s plain language is so great that, where the order’s language is

clearly inapplicable 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) (finding plaintiff’s belts to be clearly

outside the scope of an order pertaining to belts used for power transmission because they were

not used for power transmission and were not constructed with the materials listed in the order). 

The contrast between these general terms and the beveled edge language is clear. While

the Order’s language allows for Commerce to make an affirmative scope determination on a

fitting that is not used where high temperatures are a factor in designing the piping system and

where the fitting does not bear an “elbow” shape, it does not permit Commerce to include fittings

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 actual language of the orders.” See

Duferco, 296 F.3d at 1098. An order cannot be interpreted broadly when a broad construction is

“belied by the terms of the Order itself.” Id. (quoting Eckstrom, 254 F.3d at 1073). The only

exception to this rule occurs in certain situations where Congress, out of concern that orders

might be circumvented, provided Commerce with discretion to make clarifications 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 determination

is not at issue here. In the remaining areas of scope determinations, “Congress intended the

language of the orders to govern.” Duferco, 296 F.3d at 1098.10 
COURT NO. 02-00073 PAGE 26

11 In this case, some tension exists between Commerce’s duty to abide by the language 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 for 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 the clear language of its order. To demonstrate the error of this approach, it is necessary to

examine the flaws of the A774 ruling, even though it is not before the court. 

IV. COMMERCE’S PRIOR INCLUSION OF NON-BEVELED A774 FITTINGS

Perhaps because it cannot otherwise avoid the Order’s beveling language, the

Government relies entirely on the fact that Commerce included non-beveled A774 fittings in the

Final Determination: “Commerce’s ruling upon A774 fittings shows that beveling is not an

absolute requirement for a product to fall within the scope of the order.” Def.’s Br. at 26. This

argument presumes that the Concurrence Memorandum’s A774 ruling carries the weight of 

precedential authority. The ruling does not deserve such treatment in this case: it was made at a

late stage in the investigation and in irregular fashion; was reached without a thorough inquiry;

and was based on unpersuasive reasoning.11

A. The Lateness and Irregularity of the A774 Ruling

 By including a product that cannot be reconciled with the omnipresent beveling

language, the A774 ruling purports to amend the investigation’s scope concurrent with the

issuance of the Final Determination, a very late stage in the investigation. “Commerce retains

broad discretion to define and clarify the scope of an antidumping investigation in a manner

which reflects the intent of the petition.” Mitsubishi Heavy Indus., Ltd. v. United States, 21 CIT
COURT NO. 02-00073 PAGE 27

1227, 1232, 986 F. Supp. 1428, 1433 (1997) (quoting Minebea Co. v. United States, 16 CIT 20,

22, 782 F. Supp. 117, 120 (1992)); but see Royal Bus. Mach., Inc. v. United States, 1 CIT 80, 87,

507 F. Supp. 1007, 1014 (1980) (discussing the constraints of prior administrative action: “Each

stage of the statutory proceeding maintains the scope passed on from 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 discretion to define and clarify the scope of an

investigation is limited in part by concerns 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 finality and regularity of

administrative action because it occurred late in the investigation; i.e., after completion of the

ITC investigation and concurrent with the issuance of the Final Scope Determination. In

Mitsubishi, the Court affirmed Commerce’s scope determination in part because the clarification

occurred early in the process (upon the issuance of the notice of investigation), 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 from the

petition’s description of the subject merchandise in order to “further clarify” the scope of the
COURT NO. 02-00073 PAGE 28

12 At issue in that case was the definition of “unassembled components,” and

Commerce’s clarification of that term was upheld in part because Commerce had not consistently

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 ruled 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 could not have removed the beveling sentence from the scope language

without compromising the integrity of the investigation’s prior stages. If, however, Commerce

felt that it was too late to “clarify” the scope by deleting the beveling language, it should have

declined to include the A774 fittings, which were outside the plain language of the Order. 

Instead of pursuing an approach that would ensure the integrity and coherence of the scope

language, Commerce included A774 fittings without removing the sentence requiring beveled

edges. Commerce now proposes that the collateral 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 does 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 consideration that the ruling was not the outcome of a standard,
COURT NO. 02-00073 PAGE 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 procedures to ensure reliable results. See

Springwater Cookie, 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 Commerce’s response to Top Line’s scope requests, the A774 ruling

came in response to an inquiry that was submitted during the comment period that followed the

Preliminary Determination. See Antidumping Duty Order, 58 Fed. Reg. at 33,250 (“After it

withdrew from this investigation, [TYH] inquired whether A774 type stainless steel pipe fittings

were included within the scope of the investigation”). Commerce did not issue a preliminary

affirmative scope ruling and thus did not have the benefit of the commentary that might have

followed. It did not issue a final affirmative scope ruling that provided a thorough explanation

for its decision. Instead, A774 fittings were included within the scope of the Order on the basis

of a two-paragraph team recommendation in the Concurrence Memorandum, which was not

included or referenced in the Order. Accordingly, the rationale for following the A774 ruling as

a “prior, similar scope determination” fails. 

C. Unpersuasive Reasoning

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 assertions: (1) that the statement
COURT NO. 02-00073 PAGE 30

pertaining to beveled edges “is not a requirement;” (2) that the statement is not made “with

respect to unfinished fittings;” and (3) that the scope language “only specifically excludes

threaded, bolted and grooved fittings, and none of these criteria apply to A774 fittings.” 

Concurrence Memorandum, at issue 3, Pl.’s App., Doc. 3, Ex. 11 at 4. These cursory statements

provide no rational basis for nullifying the plain language of the Order as it pertains to Top

Line’s tube fittings. 

The first assertion—that beveling is not a requirement—is made without providing any

basis in statute or regulation for distinguishing between “requirements” and other allegedly

superfluous language. In its brief to the court, the Government promotes this distinction as if it

needs no explanation: “previous scope rulings have consistently held that beveling is not an
COURT NO. 02-00073 PAGE 31

13 Which prior scope rulings these are is not clear, as 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 order on

butt-weld fittings—in which Commerce found beveling to be critical in placing 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 Oct. 20, 1995) (Notice of Scope Rulings) (“A

characteristic of all stainless steel butt-weld pipe fittings is that the edges of finished fittings are

beveled so that when placed against the end of a pipe (the ends of which have also been 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 Rulings) (“[W]e conclude that [the merchandise]

whose ends are square-cut, not beveled, and thus, not designed to be butt-welded, are not the

same merchandise as that covered by the scope order”). These two scope determinations turned

on the issue of beveling alone. 

Commerce contends that, because its determinations must be based upon the record

established in the case before it, the scope established in one investigation should have no

bearing upon the determination of the scope in another investigation. Def.’s Br. at 24. The

determinations themselves, however, are public records and may be considered with respect to

Commerce’s past practices. Commerce’s past practices in Stainless Steel Butt-Weld Pipe and

Tube Fittings from Japan are particularly relevant because the petition in that case used language

identical to that of the instant Petition to characterize the subject merchandise as having beveled

edges. 

essential physical characteristic for a product to fall within the scope of this order.”13 Def.’s Br.

at 35. What is essential, according to the Government, is that the components of the fittings are

butt-welded. Def.’s Br. at 35 (describing butt-welding as the “most important aspect” of the

Order). The implication is that other specifications in the Order may be ignored when they

impede the Order’s application to a given butt-welded product. See id. If Commerce is correct

on this point, the beveling characteristic may be ignored as surplusage. Recourse to the §

351.225(k)(2) Diversified Products criteria might then be appropriate. There is, however, little,

if any, support for the proposition that some portions of the physical description of the subject

merchandise are essential while others are superfluous. 
COURT NO. 02-00073 PAGE 32

The Federal Circuit rejected a previous attempt by Commerce to interpret the

Antidumping Duty Order as “covering any stainless steel butt-weld pipe fittings in diameter,”

because such a broad construction would render some of the scope language as “mere

surplusage.” Eckstrom, 254 F.3d at 1073. Even though the Eckstrom plaintiff’s pipe fittings

were intended for butt-weld connections, this was an insufficient basis for inclusion within the

order. Id. Commerce is not at liberty to ignore the plain terms of an order on the theory that a

broad interpretation of the order will best promote the intent of the petitioners. To allow for

unsubstantiated distinctions between a scope’s “requirements” and other, supposedly nonessential language is to invite arbitrariness and uncertainty into the process by which Commerce

administers antidumping duty orders. 

Commerce’s approach also constitutes an improper heightening of the standard faced by a

plaintiff seeking to exclude its product. Commerce cannot abandon an order’s scope standard in

favor of “a different, more exacting 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 different, more exacting exclusionary standard is created where Commerce 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 Line when it adopted the

reasoning of the A774 ruling. In so doing, Commerce “strayed beyond the limits of

interpretation and into the realm of amendment.” See id. at 782. 
COURT NO. 02-00073 PAGE 33

In the second of its unpersuasive assertions, the Concurrence Memorandum observes that

the beveling language does not pertain to unfinished fittings. Concurrence Memorandum, at

issue 3, Pl.’s App., Doc. 3, Ex. 11 at 4. The relevance of this observation to A774 fittings 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, regardless of whether they

are finished or unfinished. There is no record evidence to suggest that unfinished versions of

Top Line’s fittings would be beveled after entry into the United States. 

As for the Order’s failure to exclude non-beveled fittings explicitly, Duferco extinguished 

the theory that a product could be covered by an order merely because the order does not

explicitly exclude it. 296 F.3d at 1096. Here, the beveling 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 anything, by observing that

“our scope language only specifically excludes threaded, bolted and 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 interpret an antidumping order in a manner contrary to the

clear terms that were a consistent part of the investigation, Top Line’s fittings are outside the

scope of the Antidumping Duty Order. No recourse to the § 351.225(k)(2) Diversified
COURT NO. 02-00073 PAGE 34

Products criteria is warranted. Commerce’s ruling to the contrary was therefore not in

accordance with the law. Accordingly, the motion for judgment on the agency record is granted,

judgment shall be entered for Top Line, and Commerce must exclude Top Line’s stainless steel

butt-weld tube fittings from the scope of the Antidumping Duty Order. 

/s/ Jane A. Restani 

Jane A. Restani

Chief Judge

Dated: This 4th day of June, 2004.

New York, New York