United States Court of Appeals for the Federal Circuit 

04-1131, -1174 

TAK FAT TRADING COMPANY, 

MEI WEI FOODS INDUSTRY CO., LTD., LEUNG MI INTERNATIONAL, 

TAK YUEN CORPORATION, and GENEX INTERNATIONAL CORPORATION, 

Plaintiffs-Appellees, 

v. 

UNITED STATES, 

 Defendant-Appellant, 

and 

COALITION FOR FAIR PRESERVED MUSHROOM TRADE, 

Defendant-Appellant. 

Erik D. Smithweiss, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, of 

New York, New York, argued for plaintiffs-appellees. Of counsel was Max F. 

Schutzman. 

Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil 

Division, United States Department of Justice, of Washington, DC, argued for 

defendant-appellant United States. With her on the brief were Peter D. Keisler, 

Assistant Attorney General, and David M. Cohen, Director. Of counsel on the brief were 

John D. McInerney, Chief Counsel, Berniece A. Browne, Senior Counsel, and Scott D. 

McBride, Attorney, Office of Chief Counsel for Import Administration, United States 

Department of Commerce, of Washington, DC. Of counsel were Jeanne E. Davidson, 

Deputy Director, and Richard P. Schroeder, Attorney, Commercial Litigation Branch, 

Civil Division, United States Department of Justice. 

R. Alan Luberda, Collier Shannon Scott, PLLC, of Washington, DC, argued for 

defendant-appellant Coalition For Fair Preserved Mushroom Trade. With him on the 

brief were Michael J. Coursey and Adam H. Gordon. 

Appealed from: United States Court of International Trade 

Judge Thomas J. Aquilino, Jr.
__________ 

 * Haldane Robert Mayer vacated the position of Chief Judge on December 24, 

2004. 

 

United States Court of Appeals for the Federal Circuit 

 

04-1131, -1174 

TAK FAT TRADING COMPANY, 

MEI WEI FOODS INDUSTRY CO., LTD., LEUNG MI INTERNATIONAL, 

TAK YUEN CORPORATION, and GENEX INTERNATIONAL CORPORATION, 

 Plaintiffs-Appellees, 

v. 

UNITED STATES, 

Defendant-Appellant, 

and 

COALITION FOR FAIR PRESERVED MUSHROOM TRADE, 

Defendant-Appellant. 

 

 ___________________________ 

 DECIDED: February 9, 2005 

 ___________________________ 

Before MAYER,* CLEVENGER and LINN, Circuit Judges. 

CLEVENGER, Circuit Judge. 

 The United States and the Coalition for Fair Preserved Mushroom Trade 

("Coalition") appeal the decision of the Court of International Trade reversing the scope 

ruling by the International Trade Administration, U.S. Department of Commerce 

("Commerce") that held that mushrooms imported by plaintiffs (collectively "Tak Fat") 

were not excluded from within the scope of the Notice of Amendment of Final 
Determination of Sales at Less than Fair Value and Antidumping Duty Order: Certain 

Preserved Mushrooms From the People's Republic of China, 64 Fed. Reg. 8,308 

(Feb. 19, 1999). Because the Court of International Trade erred when it disturbed the 

determination by Commerce that Tak Fat's mushrooms are not excluded from the 

dumping order, the decision of the Court of International Trade is reversed and the 

scope determination by Commerce is reinstated. 

I 

The antidumping order at issue in this case began as a petition by U.S.

mushroom producers who requested an investigation of imported preserved 

mushrooms from Chile, China, India, and Indonesia but proposed to exclude particular

mushrooms that were "marinated," "acidified," or "pickled." In proposing such an 

exclusion, petitioners cited to the Harmonized Tariff Schedule ("HTS" or "HTSUS") 

subheading 2001.90.39. In a supplementary letter to Commerce they again stated that 

marinated, acidified and pickled mushrooms are those "prepared or preserved by 

means of vinegar or acetic acid," as under HTS subheading 2001.90.39. The petition 

also included a footnote that stated that the scope of the petition comported with the 

Food and Drug Administration's ("FDA's") standards of identity for canned mushrooms. 

After investigation, Commerce issued an order that applied to "preserved 

mushrooms" from China which are "prepared or preserved by cleaning, blanching, and 

sometimes slicing or cutting" and "then packed and heated in containers including but

not limited to water, brine, butter or butter sauce." 64 Fed. Reg. at 8,309. Commerce 

did not include references to either the HTS headings or the FDA standards when it 

excluded "'marinated,' 'acidified' or 'pickled' mushrooms, which are prepared or

04-1131, -1174 2 
preserved by means of vinegar or acetic acid, but may contain oil or other additives"

from the order. Id.

On January 6, 1998, Tak Fat requested a scope ruling to determine whether their 

mushrooms were excluded from the antidumping order. Tak Fat argued that the FDA 

standards should be used to determine which mushrooms fall within the order, and that 

their mushrooms contained vinegar, an ingredient not found in canned mushrooms 

under the FDA standards. When tested by Commerce, Tak Fat's canned mushrooms 

were less than 0.1 percent acetic acid by weight and the canning solution had a pH that

ranged from 4.5 to 4.7. A pH of less than 4.6 is considered an "acidified" food under the 

FDA definition. Stating that the pH was lowered in order to prevent the growth of 

botulism and "preserve" the mushrooms, Tak Fat contended that the presence of 

vinegar in its mushrooms removes them from the scope of "canned mushrooms" under

FDA standards. Commerce rejected Tak Fat's contention and found in its preliminary

ruling that the FDA standard of identity "is not controlling of the scope of the order." 

Instead of the FDA standard, Commerce relied on the language in the order that was

"appropriated" from HTS subheading 2001.90.39 to determine the scope of the 

exclusion. Commerce looked to Customs rulings that classified products under this

HTS heading by percentage weight of vinegar or acetic acid. These rulings referenced 

Headquarters Ruling Letter (HRL) 069121 from May 20, 1983, which defined products

prepared or preserved in vinegar or acetic acid as having a minimum of 0.5 percent 

acetic acid content. Commerce applied the 0.5 percent acetic acid test to Tak Fat's 

products and found that because they did not meet the test for "prepared or preserved 

04-1131, -1174 3 
by vinegar or acetic acid," Tak Fat's mushrooms were not excluded from the 

antidumping order. 

Tak Fat then appealed the case to the Court of International Trade. Tak Fat 

Trading Co. v. United States, 294 F. Supp. 2d 1352 (Ct. Int'l Trade 2003). They argued 

before the court that the plain language of neither the order nor the record supported 

Commerce's reliance on the HTS reference and the consequent use of the 0.5 percent 

acetic acid standard in determining whether Tak Fat's mushrooms were excluded. Id. at 

1357. The court agreed with Commerce that the HTS, not the FDA, standard was the 

correct reference for determining if Tak Fat's products were excluded from the scope of

the order. Id. at 1358. The court, however, rejected Commerce's reliance on the test

found in the Customs Headquarters ruling because the court differentiated "pickled" 

from "marinated" or "acidified" and found that the 0.5 percent acetic acid standard 

applies only to "pickled" products and not necessarily to "marinated" or "acidified"

products. Id. at 1359. The court thus found the standard set forth in the Customs

Headquarters ruling should not apply to Tak Fat's product because it was never 

contended that Tak Fat's mushrooms were "pickled." Id. Consequently, the court found 

that there was not substantial evidence in support of the scope determination by

Commerce, and that Tak Fat's mushrooms therefore should not be subject to the 

antidumping duty. Id. Thus, the court granted Tak Fat's motion for summary judgment

and vacated the determination by Commerce that Tak Fat's packaged mushrooms were 

within the scope of the antidumping order. Id. The court agreed with Commerce's basic

contention that the HTS as construed through Customs rulings, not the FDA, provides 

the correct test and it differed with Commerce only on whether Tak Fat's products are 

04-1131, -1174 4 
not excluded under the definition determined in reference to particular rulings of

Customs. See id. at 1358-59. 

The United States and the Coalition appeal the decision of the Court of 

International Trade requesting reinstatement of the initial Commerce scope ruling. We 

exercise jurisdiction over this appeal from a final decision of the United States Court of

International Trade pursuant to 28 U.S.C. § 1295(a)(5) (2000). 

II 

A decision of the Court of International Trade reviewing a final antidumping 

determination by Commerce is reviewed "anew" by this court by reapplying the standard 

of review as applied by the trial court when it reviewed the final determination by

Commerce. Mitsubishi Heavy Indus., Ltd. v. United States, 275 F.3d 1056, 1060 (Fed. 

Cir. 2001); Atlantic Sugar, Ltd. v. United States, 744 F.2d 1556, 1559 n.10 (Fed. Cir. 

1984). This court will uphold Commerce's 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)(i) (2000). Substantial evidence is "such relevant evidence as a

reasonable mind might accept as adequate to support a conclusion." Consol. Edison

Co. v. NLRB, 305 U.S. 197, 229 (1938). It is not necessary that there could only be one 

conclusion; even if two inconsistent conclusions could have been drawn, the 

determination could still be supported by substantial evidence. See Matsushita Elec. 

Indus. Co. v. United States, 750 F.2d 927, 933 (Fed. Cir. 1984). 

A 

After investigation, Commerce will issue an antidumping order if merchandise

has been sold at less than fair value. After an order is published, scope rulings may be 

04-1131, -1174 5 
necessary when producers, like Tak Fat, need clarification as to the status of their

products under the order. Determinations of whether a product falls under an 

antidumping order are made pursuant to 19 C.F.R. § 351.225(k): 

considering whether a particular product is included within the scope of an 

order . . . , the Secretary will take into account the following: 

(1) The descriptions of the merchandise contained in the petition, 

the initial investigation, and the determinations of the Secretary (including 

prior scope determinations) and the Commission. 

(2) When the above criteria are not dispositive, the Secretary will 

further consider: 

(i) The physical characteristics of the product; 

(ii) The expectations of the ultimate purchasers; 

(iii) The ultimate use of the product; 

(iv) The channels of trade in which the product is sold; and 

(v) The manner in which the product is advertised and 

displayed. 

19 C.F.R. § 351.225(k) (2004). 

If the determination can be made based on section (k)(1), a scope ruling will 

issue without a full evaluation of the criteria in (k)(2). Commerce has "broad authority to 

interpret its own antidumping duty orders." INA Walzlager Schaeffler KG v. United

States, 108 F.3d 301, 307 (Fed. Cir. 1997). 

The language of the order determines the scope of an antidumping duty order.

Duferco Steel, Inc. v. United States, 296 F.3d 1087, 1097 (Fed. Cir. 2002). Scope 

orders are interpreted under 19 C.F.R. § 351.225(k) with the aid of the antidumping 

petition, investigation and preliminary order. Id. But the petition and investigation 

"cannot substitute for the language in the order itself." Id. The Federal Circuit has said 

that "[i]t is the responsibility of the agency, not those who initiated the proceedings, to 

determine the scope of the final orders. Thus, a predicate for the interpretive process is

language in the order that is subject to interpretation." Id. The scope of the order can 

04-1131, -1174 6 
be clarified but it cannot be changed by the interpretive process. Id. In the case before 

us, the order exclusion contains language that must be interpreted. 

B 

In the initial petition that began the antidumping inquiry, the Coalition described 

the scope of imported merchandise the petition was intended to cover: 

The scope of this investigation covers certain preserved 

mushrooms whether imported whole, sliced, diced, or as stems and 

pieces. The preserved mushrooms covered under this investigation are 

the species Agaricus bisporus and Agaricus bitorquis. "Preserved 

mushrooms" refer to mushrooms that have been prepared or preserved by

cleaning, blanching, and sometimes slicing or cutting. These mushrooms

are then packed and heated in containers including but not limited to cans 

or glass jars, in a suitable liquid medium that may include but is not limited 

to water, brine, or butter (or butter sauce). Preserved mushrooms may be 

imported whole, sliced, diced, or as stems and pieces. Included within the 

scope of the investigation are "brined" mushrooms, which are presalted 

and packed in a heavy salt solution to provisionally preserve them for 

further processing. 

 

The merchandise subject to this investigation is classified at 

subheadings 2003.10.27, 2003.10.31, 2003.10.37, 2003.10.43, 

2003.10.47, 2003.10.53, and 0711.90.4000 of the Harmonized Tariff 

Schedule of the United States ("HTS"). Although the HTS subheadings

are provided for convenience and Customs purposes, the written 

description of the merchandise under investigation is dispositive. 

Excluded from the scope of this petition are the following: (1) all 

other species of mushroom including straw mushrooms (HTS heading 

2003.10.009); (2) all fresh and chilled mushrooms (HTS heading 

0709.51.00), including "refrigerated" or "quick blanched"; (3) dried 

mushrooms (HTS headings 0712.30.10 and 0712.30.20); (4) frozen 

mushrooms (HTS heading 0710.80.20); and (5) "marinated," "acidified" or 

"pickled" mushrooms, which are packed with solutions such as oil, vinegar

or acetic acid (HTS heading 2001.90.39).

(Antidumping Duty Petition: Certain Preserved Mushrooms from Chile, China, India, and 

Indonesia (January 6, 1998), J.A. at 25-26) (emphasis added). Also included in the 

petition was a footnote that stated that "[t]he scope of this petition comports with the 

04-1131, -1174 7 
Food and Drug Administration's ('FDA') standards of identity for canned mushrooms." 

Id.

Commerce did not adopt the exact language the petitioners suggested. Neither 

the HTS nor the FDA standards were listed in the preliminary or the final determination 

of sales of less than fair value by Commerce. The antidumping order was written as

follows: 

The products covered . . . are certain preserved mushrooms 

whether imported whole, sliced, diced, or as stems and pieces. The 

preserved mushrooms covered under this order are the species Agaricus

bisporus and Agaricus bitorquis. "Preserved mushrooms" . . . have been 

prepared or preserved by cleaning, blanching, and sometimes slicing or 

cutting. These mushrooms are then packed and heated in containers

including but not limited to cans or glass jars in a suitable liquid medium,

including but not limited to water, brine, butter or butter sauce. Preserved 

mushrooms may be imported whole, sliced, diced, or as stems and 

pieces. Included within the scope of the investigation are "brined"

mushrooms, which are presalted and packed in a heavy salt solution to 

provisionally preserve them for further processing. 

 

Excluded from the scope of this investigation are the following: 

(1) all other species of mushroom, including straw mushrooms; (2) all 

fresh and chilled mushrooms, including "refrigerated" or "quick blanched 

mushrooms"; (3) dried mushrooms; (4) frozen mushrooms; and 

(5) "marinated," "acidified" or "pickled" mushrooms, which are prepared or

preserved by means of vinegar or acetic acid, but may contain oil or other

additives. 

 

The merchandise subject to this investigation is classifiable under 

subheadings 2003.10.0027, 2003.10.0031, 2003.10.0037, 2003.10.0043,

2003.10.0047, 2003.10.0053, and 0711.90.4000 of HTS. Although the 

subheadings are provided for convenience and Customs purposes, the 

Department's written description of the merchandise under the order is 

dispositive. 

64 Fed. Reg. at 8,309. 

The language chosen by Commerce for the order referred to mushrooms that are 

"prepared or preserved by means of vinegar or acetic acid, but may contain oil or other

04-1131, -1174 8 
additives," not mushrooms "which are packed with solutions such as oil, vinegar or

acetic acid," which is the language the petitioners recommended. Part of the adopted 

language, "prepared or preserved by means of vinegar or acetic acid," appears in the 

HTS subheading 2001.90.39 describing the class of vegetables covered by that tariff 

schedule. The exact heading is: 

2001 Vegetables, fruit, nuts and other edible parts of plants, prepared 

or preserved by vinegar or acetic acid: 

 Other: . . . 

 Other:

 Vegetables: . . . 

2001.39.90 Other . . . [.] 

Because of this similarity, Commerce deemed that the language in the order 

should refer to the same standard as the HTS heading cited in the original petition. To 

interpret this heading, Commerce turned to Customs rulings. Commerce determined 

that decisions by Customs interpreting "prepared or preserved by means of vinegar or 

acetic acid," as used in HTS subheading 2001.90.39, apply a standard that the product

must be a minimum 0.5 percent by weight acetic acid. Commerce thus used this

quantitative standard to define which "marinated," "acidified," or "pickled" mushrooms 

are excluded from the antidumping order. 

Customs Headquarters Ruling Letter (HRL) 069121 applied the 0.5 percent 

standard to "pickled" sweet pepper strips that were "prepared or preserve din [sic]

vinegar or acetic acid." HRL 069121 (May 20, 1983). Since 1983, Customs has 

repeatedly applied the 0.5 percent by weight standard to determine which imported 

vegetable products are prepared or preserved by or in vinegar or acetic acid. In a ruling 

on imported jalapenos prepared by salt and acetic acid, Customs classified the product

as "prepared or preserved by vinegar or acetic acid" under HTS subheading 

04-1131, -1174 9 
2001.90.39. HQ 956850 (Mar. 22, 1996). In doing so, Customs looked to the 

quantitative content of acetic acid in the product. As support, the ruling stated: 

Customs position as to the minimum amount of acetic acid necessary to 

determine whether a vegetable is prepared or preserved by vinegar or

acetic acid was outlined in Headquarters Ruling Letter (HRL) 069121. . . . 

That decision held that a product required a minimum of 0.5 percent

acetic acid (subject to allowable tolerances) in the equilibrated product to 

be considered as prepared or preserved by vinegar or acetic acid. This

position is unchanged. 

Id. 

Customs has applied the 0.5 percent standard to products in the category

"Vegetables . . . prepared or preserved by vinegar or acetic acid," regardless of whether 

they were called "marinated," "acidified" or "pickled." See, e.g., HQ 957041 (Nov. 10,

1998) (jalapenos in solution); HQ 959361 (Apr. 17, 1997) (jalapenos prepared by salt 

and acetic acid); HQ 959313 (Feb. 20, 1997) (whole artichokes in vinegar); HQ 959314 

(Feb. 20, 1997) (whole and quartered artichokes in vinegar); HQ 953518 (June 24, 

1993) (jalapenos); HQ 952738 (Jan. 27, 1993) (pepperoncini and giardiniera). These 

Customs rulings span different types of products that have been prepared or preserved 

using vinegar or acetic acid—not only those labeled "pickled." 

III 

On appeal, the United States and the Coalition argue that the methodology used 

by Commerce to find Tak Fat's products not excluded from the order is supported by

substantial evidence, the standard which we apply to the question of whether a 

particular scope ruling is sustainable. See Micron Tech., Inc. v. United States, 117 F.3d 

1386, 1393 (Fed. Cir. 1997) (citing 19 U.S.C. § 1516a(b)(1)(B)(i)). To support their 

view, the appellants point to the language of the scope order, which contains no

04-1131, -1174 10 
reference to FDA standards, but instead recites language that is substantially the same 

as the language employed in the relevant HTS heading. Further, the appellants argue 

that once the HTS standard is respected as correct, it follows naturally that the 

interpretations of the HTS heading are pertinent to understand the limits of exclusion

under the antidumping order. See Wheatland Tube Co. v. United States, 973 F. Supp. 

149, 156-157 (Ct. Int'l Trade 1997), aff'd, 161 F.3d 1365, 1369 (Fed. Cir. 1998)

(approving Commerce's reliance in a scope determination on Customs's interpretation 

of the phrase "of a kind used for," taken from a HTS heading, to refer to the chief, or

principal, use of a product, and not of its actual use). 

Tak Fat disagrees and urges us to apply the standard set forth by the FDA for

canned mushrooms and "acidified" foods. Tak Fat relies on the wording of the petition,

which references both the FDA standard of identity for canned mushrooms and the HTS 

subheading, to argue that because the order does not refer to either the HTS 

subheading or the FDA standard, the HTS subheading should not be imported into the 

petition. Tak Fat argues that the FDA standard unambiguously states that any vinegar 

content warrants a finding that the product is not "canned mushrooms" as covered by

the antidumping order, but rather is an "acidified" product. Tak Fat discounts the main 

argument favoring the HTS standard, arguing that the precise language of the HTS 

heading was not used in the initial petition, and therefore, reliance on the HTS is

improper. This argument fails for two reasons. First, the issue is what the antidumping

order covers, not what domestic industry proposed for coverage. Second, when 

Commerce modified the petition's language to recite specific HTS language, that act is 

strong evidence that Commerce expressly addressed its focus on the HTS standard. 

04-1131, -1174 11 
We think the appellants have the better of the arguments. Here, the scope order 

leads more naturally to the HTS standard than reliance on the FDA standard. Simply 

because the Coalition referenced the FDA standard when the proceeding was initiated 

is not determinative because HTS standards were also included in the petition. While 

the petition language describing the exclusion differs significantly from that of the HTS 

heading, the order adopts language that is virtually identical to that from the HTS 

heading and not the petitioners' language. To be precise, the petition requests

exclusion for product "packed with solutions such as oil, vinegar or acetic acid (HTS

heading 2001.90.30)." The order uses different language: "prepared or preserved by 

means of vinegar or acetic acid, but may contain oil or other additives." Except for the 

words "means of," this language tracks the HTS heading which covers vegetables

"prepared or preserved by vinegar or acetic acid." The language of the order, not the 

petition, controls. Duferco Steel, 296 F.3d at 1097. We thus agree with the Court of 

International Trade that the HTS standard is the correct one to apply here, and we

further agree that it is permissible to refer to Customs rulings on the HTS to find 

precision in the reach of the scope order. 

We disagree with the Court of International Trade only over whether Tak Fat's

products are not excluded from the scope of the antidumping order, when the Customs

rulings are applied to the products in question. Here, we think it clear that Customs has 

not confined the 0.5 percent test solely to "pickled" goods. Rather, the 0.5 percent test 

has been relied on to cover goods that are "prepared or preserved by vinegar or acetic

acid," as noted above. Indeed, the various rulings demonstrating that the 0.5 percent 

04-1131, -1174 12 
test is not restricted to "pickled" products were presented to the Court of International 

Trade as support for Commerce's interpretation of the scope of the antidumping order. 

IV 

Commerce tested Tak Fat's mushrooms and found that the product does not

meet the threshold 0.5 percent acetic acid by weight test. Applying the proper test, 

Commerce correctly found that Tak Fat's mushrooms do not fall within the definition of 

the listed exclusions to the antidumping order. Although the Court of International 

Trade was essentially correct in its analysis of the underpinnings of Commerce's scope 

determination, it erred in its view that the pertinent Customs ruling only applies to

"pickled" mushrooms. Because substantial evidence supports the use of the 0.5 

percent test for Tak Fat's mushrooms, and because there is no dispute that such 

mushrooms fail the test for exclusion from the antidumping order, the Court of 

International Trade erred in reversing Commerce's determination that Tak Fat's

products fell within the scope of the order. The decision of the Court of International 

Trade is accordingly reversed and the scope ruling issued by Commerce is reinstated. 

COSTS 

 No costs. 

REVERSED

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