Court No. 12-00345 Page 2 

Goldberg, Senior Judge: This case has ricocheted between the court and the Department 

of Commerce (“Commerce” or “the Department”) since 2012. The matter now returns here 

following a second remand, which asked Commerce whether it would reconsider a finding 

supporting its negative circumvention decision from the first remand. In the end, the Department 

chose not to revisit the finding in question. Thus substantial evidence remains on the record to 

buttress Commerce’s decision not to subject plaintiffs’ 4.75 millimeter (“mm”) wire rod to 

antidumping duties. The court sustains the negative circumvention determination from the first 

remand proceeding. 

BACKGROUND

The court sketched the background of this case already in its previous opinions. See

Deacero S.A. de C.V. v. United States, 37 CIT __, __, 942 F. Supp. 2d 1321, 1324í25 (2013) 

(“Deacero I”); Deacero S.A.P.I. de C.V. v. United States, Slip Op. 14-99, 2014 WL 4244349, 

*1í3 (CIT Aug. 28, 2014) (“Deacero II”). Nevertheless, to ensure its holding is not

misunderstood, the court repeats some of the history that it outlined before. 

In October 2002, the Department issued an antidumping duty order on carbon and alloy 

steel wire rod from countries including Mexico. Carbon and Certain Alloy Steel Wire Rod from 

Brazil, Indonesia, Mexico, Moldova, Trinidad and Tobago, and Ukraine, 67 Fed. Reg. 65,945 

(Dep’t Commerce Oct. 29, 2002) (notice of antidumping duty orders) (the “Order”). The Order 

defined the subject merchandise as follows: 

The merchandise subject to these orders is certain hot-rolled products of carbon 

steel and alloy steel, in coils, of approximately round cross section, 5.00 mm or 

more, but less than 19.00 mm, in solid cross-sectional diameter. 

Id. at 65,946. The Order also excluded a few types of rod from antidumping duties, including 

rod made of certain types of steel, and rod containing chemical elements in set quantities. Id.
Court No. 12-00345 Page 3 

After Commerce issued the Order, plaintiffs Deacero S.A. de C.V. and Deacero USA, 

Inc. (collectively “Deacero”) began selling 4.75 mm wire rod in the United States. In response, 

domestic producers asked Commerce to decide whether Deacero’s rod was subject to the Order. 

Req. for Scope/Circumvention Ruling 1í2, PD I 1 (Feb. 11, 2011). Commerce said it would not 

conduct a scope inquiry, however, because rod with an actual diameter of 4.75 mm fell outside 

the Order’s terms. Initiation Mem. 2, 12í13, PD I 24 (May 31, 2011). 

But Commerce’s work did not end there. After refusing to conduct a scope inquiry, the 

Department considered whether the rod was “circumventing” the Order under 19 U.S.C. § 1677j 

(2012). Commerce first explored whether the rod was “later-developed merchandise” similar to 

the subject goods under § 1677j(d). The Department held it was not, finding that 4.75 mm rod 

was “commercially available” in Japan before the Order was written. See Initiation Mem. 

13í14; see also 19 C.F.R. § 351.225(j) (2014). Commerce next examined whether the rod 

represented a “minor alteration” to the subject goods under § 1677j(c). Initiation Mem. at 

14í15; see also 19 C.F.R. § 351.225(i). This time, Commerce found that the rod was 

circumventing. Because “wire rod with an actual diameter of 4.75 mm to 5.00 mm” differed 

from subject merchandise just slightly in “form or appearance,” the Department included 

Deacero’s rod “within the scope of the [O]rder.” Carbon and Certain Alloy Steel Wire Rod from 

Mexico, 77 Fed. Reg. 59,892, 59,893 (Dep’t Commerce Oct. 1, 2012) (final affirm. 

circumvention determination) (“Final Determination”); see also Issues & Decision Mem. at 18, 

PD II 47 (Sept. 24, 2012). 

On appeal, the court invalidated Commerce’s minor alterations decision as unfounded in 

substantial evidence. Citing Wheatland Tube Co. v. United States, 161 F.3d 1365 (Fed. Cir. 

1998), the court held that products which Commerce intentionally excluded from an order cannot 
Court No. 12-00345 Page 4 

circumvent that order. See Deacero I, 37 CIT at __, 942 F. Supp. 2d at 1330í32. Yet here, the 

record showed, and Commerce found, that 4.75 mm rod was commercially available before the 

Order was drafted. The Order also omitted 4.75 mm rod from its scope. Id. Together, this 

evidence suggested that Commerce had exempted 4.75 mm rod from antidumping liability with 

intent. The court remanded so Commerce could revisit its decision in light of these data. 

On remand, the Department reversed course and exempted Deacero’s rod from the Order. 

Final Results of Redetermination Pursuant to Ct. Remand, ECF No. 87 (“First Remand 

Results”). It did so under protest. See id. at 1í2. As Commerce understood Deacero I, the court 

had decided on its own that “4.75 mm wire rod . . . existed in Japan at the time the petition was 

filed.” Id. at 19. Commerce also lamented a second fact that the court supposedly found, 

namely, that “Petitioners intentionally sought to exclude 4.75 mm wire rod from the scope of the 

Order.” Id. In the Commerce’s view, these alleged findings forced the conclusion that 4.75 mm 

rod was not a minor alteration. The Department also suggested, in so many words, that the court 

had overstepped its authority by making factual judgments reserved for the agency. Id. at 12í13, 

19 (agreeing with petitioners, who said court “improperly engaged in fact finding”). 

Yet Commerce’s depiction of Deacero I missed the mark. In Deacero II, the court 

explained that Commerce “reached a supportable result” on remand by deeming 4.75 mm rod 

noncircumventing merchandise. Deacero II, 2014 WL 4244349, at *6. But the court faulted the 

logic underpinning the Department’s conclusion. Although Commerce hinted during the first 

remand that the court made its own finding respecting commercial availability in Deacero I, the 

court had done nothing of the sort. Instead, following its proper standard of review, the court 

had held that record evidence regarding commercial availability undermined Commerce’s

finding that Deacero’s rod was a minor alteration. See Deacero I, 37 CIT at __, 942 F. Supp. 2d 
Court No. 12-00345 Page 5 

at 1331í32. So, contrary to its claims, the Department was not bound by Deacero I to any 

particular findings of fact. See Deacero II, 2014 WL 4244349, at *6 (“The court never held that 

Commerce was bound by its prior [commercial availability] finding.”). Because Commerce 

inadequately reasoned its first remand decision, Deacero II ordered another remand, this time to 

ask Commerce whether it wished to revisit the commercial availability issue or reopen the record 

in further proceedings. Id. at *7. 

The court now has the Department’s answer. See Final Results of Redetermination 

Pursuant to Ct. Remand 16, ECF No. 113 (“Second Remand Results”). In the Second Remand 

Results, Commerce declined to reconsider its commercial availability finding, because in 

Commerce’s view, commercial availability is irrelevant to deciding whether minor aspects of a 

product were changed to fall outside an order’s scope. Id. at 16í17. The Department explained 

that it examines commercial availability only when choosing between the later-developed 

product and minor alterations inquiries. Id. Commerce nevertheless maintained, under protest, 

that 4.75 mm rod did not circumvent the Order. See id. at 1 (restating result of first remand). 

DISCUSSION 

The court now sustains Commerce’s revised decision.1 In the Second Remand Results, 

the Department waived the chance to revisit its earlier commercial availability finding. See id. at 

16. And because this finding remains undisturbed, the record still indicates that Commerce 

excluded 4.75 mm rod from the Order with intent. Accordingly, the Department’s negative 

circumvention determination was based in substantial evidence and in accordance with law. 

But before concluding, the court will clarify and distill its holdings in Deacero I and 

Deacero II. In the Second Remand Results, Commerce alleged that the court had modified the 

 1

 The court has jurisdiction under 28 U.S.C. § 1581(c) and reviews Commerce’s conclusions using the 

standards of review in 19 U.S.C. § 1516a(b)(1)(B)(i). 
Court No. 12-00345 Page 6 

minor alterations analysis, see id. at 20–22, and barred affirmative circumvention determinations 

for products that were commercially available before an order issued, see id. at 16í17. These 

arguments betray a deep misunderstanding of the court’s opinions. Properly viewed, the court’s 

holdings are narrow and do not blunt Commerce’s power to identify circumventing goods under 

19 U.S.C. § 1677j(c) and 19 C.F.R. § 351.225(i). 

To aid understanding, the court reconstructs its rationale from the ground up. The court 

begins, as always, with the statute. In 19 U.S.C. § 1673(1), Commerce receives the authority to 

decide whether certain “class[es] or kind[s] of foreign merchandise” were sold in the United 

States for less-than-fair value. This provision empowers Commerce, as a natural corollary, to 

define the goods covered by antidumping orders. See Duferco Steel, Inc. v. United States, 296 

F.3d 1087, 1089 (Fed. Cir. 2002) (recognizing Commerce’s “inherent power” to define 

parameters of an investigation); Wheatland Tube Co. v. United States, 21 CIT 808, 815, 973 F. 

Supp. 149, 155 (1997) (same). Moreover, once Commerce has written an order, it enjoys some 

latitude to interpret the order’s application to imported goods. See Ericsson GE Mobile 

Commc’ns, Inc. v. United States, 60 F.3d 778, 782 (Fed. Cir. 1995). But the Department may not 

interpret an order “in a way contrary to its terms.” Smith Corona Corp. v. United States, 915 

F.2d 683, 686 (Fed. Cir. 1990). Commerce cannot constructively rewrite an order to cover items 

outside the order’s literal scope. 

This general rule can yield unfair results, however. Because Commerce normally limits 

antidumping orders to their terms, exporters sometimes alter their goods to avoid duties. For 

example, in response to an order on manual typewriters, an exporter of typewriters might add a 

memory function to the product to remove it from the order’s scope. See S. Rep. No. 100-71, at 

101 (1987). To prevent situations like this, Congress enacted the circumvention provisions in 19 
Court No. 12-00345 Page 7 

U.S.C. § 1677j. See Omnibus Trade and Competitiveness Act of 1988, Pub. L. No. 101-41, 

§ 1321, 102 Stat. 1107, 1192 (1988) (codified as amended at 19 U.S.C. § 1677j (2012)). The 

subsection at issue in this case, 19 U.S.C. § 1677j(c), requires Commerce to include among 

subject merchandise any “articles altered in form or appearance in minor respects . . . , whether 

or not included in the same tariff classification [as goods described in the order].” In other 

words, if a product differs from subject goods in an insignificant way, that product may face 

antidumping duties even though it lies outside the order’s literal bounds. 

But this exception has limits. While § 1677j(c) lets Commerce reach items outside an 

order’s plain terms, the exception does not touch products that were placed beyond an order’s 

scope by design. As the Federal Circuit declared in Wheatland, “[s]ection 1677j(c) does not [] 

apply to products unequivocally excluded from the order in the first place.” 161 F.3d at 1371. 

At first blush, this rule from Wheatland seems poised to swallow the minor alterations 

provision altogether. On one hand, Congress enacted § 1677j(c) to reach goods falling outside of 

an order’s literal scope; on the other hand, Wheatland says § 1677j(c) cannot cover items that 

were unequivocally excluded from an order. So how can one read these rules in concert? If one 

assumes that any item falling outside of an order’s literal scope was unequivocally excluded, 

then the rules clearly conflict. Although § 1677j(c) empowers Commerce to extend orders 

beyond their terms to prevent circumvention, the declaration in Wheatland would revoke that 

power by restricting duties to items within an order’s four corners. Nevertheless, if one posits 

that not all items outside an order’s scope were unequivocally excluded, then the rules dovetail. 

A context-sensitive survey of Wheatland and other Federal Circuit precedent supports the latter 

view. Armour & Co. v. Wantock, 323 U.S. 126, 132í33 (1944) (urging counsel to interpret 
Court No. 12-00345 Page 8 

language of opinion in light of its facts); Can. Imperial Bank of Commerce v. Wells Fargo Bank, 

811 F.2d 1490, 1494 (Fed. Cir. 1987). 

In Wheatland, the Federal Circuit considered whether to grant Commerce a remand to 

decide if line and dual-certified pipe circumvented an order on standard pipe. 161 F.3d at 

1366í69. The court said remand would be inappropriate for two reasons. First, it found that the 

order excluded line and dual-certified pipe in absolute terms. Id. at 1371. In a freestanding 

sentence at the end of the order, Commerce wrote, “Standard pipe that is dual or triple 

certified/stenciled that enters the U.S. as line pipe . . . is . . . not included in this investigation.” 

Id. at 1367 (emphasis omitted). Second, the Federal Circuit noted that petitioner had argued to 

exclude line and dual-certified pipe from the order, even though it knew the pipe was “capable of 

standard applications.” Id. at 1371. From this evidence, the court inferred that Commerce 

intentionally excluded line and dual-certified pipe from the order. And because the Department 

intentionally excluded that pipe from the order, Wheatland denied Commerce’s request for 

remand to conduct a minor alterations inquiry. Id.

In sum, despite its broad language about items “unequivocally excluded” from 

antidumping orders, Wheatland stands for this narrow proposition: The minor alterations 

provision does not apply to goods that Commerce knew existed commercially when writing an 

order, yet excluded from the order anyway. 

 By contrast, the provision can cover items that were excluded from an antidumping order 

without intent—and this remains so even if the items fall outside the order’s plain terms. Nippon

Steel Corp. v. United States, 219 F.3d 1348 (Fed. Cir. 2000), illustrates the principle. There, 

Commerce imposed duties on certain carbon steel products from Japan. After the order issued, 

Japanese producers added small amounts of boron to their goods so they would no longer be 
Court No. 12-00345 Page 9 

“carbon steel,” as defined in the U.S. Harmonized Tariff Schedule. Id. at 1350. Commerce 

launched a minor alterations inquiry to decide whether steel products with trace amounts of 

boron circumvented the order. Id. At first, the Court of International Trade enjoined the inquiry. 

The court held that Commerce could not apply the minor alterations provision to products 

outside the order’s literal scope. Id. at 1351. But the Federal Circuit reversed and let the inquiry 

continue. In doing so, Nippon distinguished Wheatland on procedural grounds, and noted that 

Wheatland “involved two different products, both of which were well known when the order was 

issued.” Nippon, by contrast, involved “a product produced by making allegedly insignificant 

alterations to an existing product.” Id. at 1356. It seems, then, that Nippon allowed the inquiry 

to proceed because there was no clear evidence that Commerce willfully excluded the boronlaced product from the order. 

The court’s decisions in Deacero I and II build upon these precedents. As in Wheatland, 

record evidence in this case suggests that Commerce intentionally exempted 4.75 mm wire rod 

from the Order. First, as explained in Deacero I, the Order plainly excludes from its scope rod 

under 5.00 mm in diameter. 37 CIT at __, 942 F. Supp. 2d at 1330í31. Of course, the Order 

does not set the exclusion apart in a separate clause, like in Wheatland. See 161 F.3d at 1367. 

But where Commerce placed the exclusion is of little moment. By defining subject rod between 

5.00 and 19.00 mm in diameter, Commerce unambiguously omitted rod of lesser width from the 

Order. And although the exclusion might have been clearer had Commerce set it in a separate 

clause at the end of the Order, to do so would have been redundant. An order covering rod 

between 5.00 and 19.00 mm inherently excludes products of any other diameter, including 4.75 

mm rod. 
Court No. 12-00345 Page 10 

Second, the finding that 4.75 mm rod was “commercially available” before the Order was 

drafted implies that Commerce excluded the rod on purpose. As recounted in Deacero II, 

“[u]ndisputed record evidence demonstrates that small diameter wire rod existed domestically at 

some point in proximity to the investigation, and Commerce concluded that such wire rod was 

indeed commercially available prior to the Wire Rod Order’s issuance.” 2014 WL 4244349, at 

*4. “Furthermore, [the] petitioners themselves noted in their petition that 5.5 mm wire rod was 

the ‘smallest cross-sectional diameter that is hot-rolled in significant commercial quantities,’ 

suggesting that smaller sizes may have been manufactured in limited commercial quantities at 

the time of the investigation.” Id. (quoting Initiation Mem. at 4). This evidence signals that 

Commerce excluded 4.75 mm rod from the Order not by lack of foresight, but with full 

knowledge of the product’s existence. Moreover, though Commerce could have reopened the 

record and reached a different conclusion regarding commercial availability on a third remand, it 

declined the invitation to do so. See Second Remand Results at 16. 

 Together, the Order’s language—and the undisturbed finding that 4.75 mm rod was 

commercially available before the Order issued—suggest Commerce intentionally excluded 4.75 

mm rod from the Order. Thus, under Wheatland, the Department’s negative circumvention 

determination on remand was supported by substantial evidence. 

 The Department and defendant-intervenors counter with many of the same arguments 

made in their original briefs and following the first remand. See id. at 9í22. The court 

addressed most of these arguments in Deacero II and need not discuss them again here. Even so, 

to ensure that its holdings are not misunderstood, the court sets a few matters straight. 

 To begin, Commerce argues that Deacero I announced a new test to decide whether an 

alteration is minor under the statute. The Department calls the alleged test the “fundamental 
Court No. 12-00345 Page 11 

focus” analysis. See id. at 20í21. Under the test, a change to subject merchandise would be 

deemed “minor” only if it affects an insignificant or nonfundamental physical aspect of the good. 

Conversely, a change would qualify as more than minor if it affected one of the good’s central 

physical attributes. Id. Commerce complains that this test lacks a basis in precedent, id.

(explaining Wheatland does not mention fundamental focus test), and implies that the test 

unjustly supplanted the five-factor inquiry generally used to identify minor alterations, see id. at 

17í18 (explaining application of five-factor test to Deacero’s rod); S. Rep. No. 100-71, at 100 

(outlining five factors to consider in minor alterations analysis). Commerce also alleges that the 

court infringed its fact-finding authority by deeming diameter a “fundamental” characteristic of 

wire rod. See Second Remand Results at 20í22. 

 These arguments twist the court’s holding almost beyond recognition. Although Deacero

I called diameter “the fundamental focus of the Order,” it did not mint a new fundamental focus 

test to replace Commerce’s usual minor alterations analysis. See 37 CIT at __, 942 F. Supp. 2d 

at 1330. Nor did the court find that diameter is more important to wire rod’s usefulness than 

other traits, like grade or carbon content. See id.; see also Deacero II, 2014 WL 4244349, at *4 

n.5 (“[T]he court did not intend to suggest [in Deacero I] that diameter is more important than 

every other physical descriptor in the Wire Rod Order.”). Commerce can decide for itself 

whether consumers buy wire rod for its diameter or other qualities. 

Yet diameter was “fundamental” to the minor alterations analysis in another way. When 

Commerce defined the subject goods, it chose diameter to distinguish subject rod from 

nonsubject rod. The Order’s plain language covered wire rod between 5.00 and 19.00 mm in 

width, and omitted rod of any other diameter. See Order at 65,946. This omission—together 

with the finding that 4.75 mm rod was commercially available before the Order issued—implied 
Court No. 12-00345 Page 12 

that Commerce willfully excluded 4.75 mm rod from the Order. So when the court called 

diameter “fundamental,” it meant that the Order’s focus on diameter revealed an intent to exempt 

some rod from duties. The court never said that diameter was the rod’s most important physical 

or commercial attribute. 

Furthermore, the court never held that products found to be commercially available when 

an order was drafted cannot also circumvent that order under § 1677j(c). See Second Remand 

Results at 16í18 (arguing commercial availability does not bar minor alteration finding). In 

Deacero I, the court conducted a Chevron analysis and held that the minor alterations provision 

may reach products that preexisted an order. 37 CIT at __, 942 F. Supp. 2d at 1327í29. The 

provision might apply, for example, if Commerce found that a product was commercially 

available, but did not unambiguously exclude that product from an order. Cf. Target Corp. v. 

United States, 609 F.3d 1352, 1362í63 (Fed. Cir. 2010) (holding order on petroleum wax 

candles could cover mixed-wax candles under later-developed product provision). But here, 

Commerce clearly omitted 4.75 mm rod and found that the product was available commercially 

before the Order was written. This evidence indicates that Commerce intended to exempt 4.75 

mm rod from antidumping duties. 

Finally, the Department argues that commercial availability is irrelevant to the minor 

alterations analysis. It notes that Commerce examined commercial availability below only to 

inform its choice between the minor alterations and later-developed product inquiries. See

Second Remand Results at 16í17. But past agency practice belies the Department’s stance. In 

1991, Commerce determined that certain manganese brass had not circumvented an order on 

brass strip from Germany. It based its decision, in part, on the fact that the manganese “brass 

existed prior to, and at the time of, the original investigation.” Brass Sheet and Strip from 
Court No. 12-00345 Page 13 

Germany, 56 Fed. Reg. 65,884, 65,886 (Dep’t Commerce Dec. 19, 1991) (negative final 

circumvention determination). Furthermore, as recently as 2009, Commerce held that certain 

folding tables could not have been excluded from an order because the tables did not exist during 

the investigation. Folding Metal Tables and Chairs from the People’s Republic of China, 74 

Fed. Reg. 21,332 (Dep’t Commerce May 7, 2009) (notice of extension of time), and 

accompanying Final Analysis Mem. at cmt. 2. So even if Commerce usually ignores commercial 

availability in its minor alterations inquiry, that does not render the commercial availability 

finding immaterial here. See Ceramark Tech., Inc. v. United States, 38 CIT __, __, 11 F. Supp. 

3d 1317, 1324í25 (2014) (remanding minor alterations decision where order omitted electrodes 

of specific diameter and Commerce failed to consider commercial availability). On the contrary, 

the finding bespeaks Commerce’s intent to exclude 4.75 mm wire rod from the antidumping 

Order, as discussed above. 

CONCLUSION

Commerce’s negative circumvention determination, as outlined in the First and Second 

Remand Results, is supported by substantial evidence and in accordance with law. The court 

now sustains the determination, and judgment will enter accordingly. 

/s/ Richard W. Goldberg 

 Richard W. Goldberg 

 Senior Judge 

Dated: 

 New York, New York 

December 22, 2014