Note: This disposition is nonprecedential.

United States Court of Appeals 

for the Federal Circuit ______________________ 

A.L. PATTERSON, INC.,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee,

AND

VULCAN THREADED PRODUCTS, INC.,

Defendant-Appellee.

______________________ 

2013-1526

______________________ 

Appeal from the United States Court of International 

Trade in No. 11-CV-0192, Senior Judge Richard W. Goldberg.

______________________ 

Decided: September 22, 2014

______________________ 

THOMAS M. BELINE, Cassidy Levy Kent (USA) LLP, of 

Washington, DC, argued for plaintiff-appellant. With him 

on the brief was JAMES R. CANNON, JR. 

CARRIE DUNSMORE, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 
2 A.L. PATTERSON, INC. v. US

of Justice, of Washington, DC, argued for defendantappellee United States. On the brief were STUART F.

DELERY, Assistant Attorney General, JEANNE E.

DAVIDSON, Director, and PATRICIA M. MCCARTHY, Assistant Director. Of counsel on the brief was DANIEL J.

CALHOUN, Attorney, Office of Chief Counsel for Trade 

Enforcement & Compliance, United States Department of 

Commerce, of Washington, DC. Of counsel was MELISSA 

M. DEVINE, Trial Attorney, Commercial Litigation 

Branch, Civil Division, United States Department of 

Justice, of Washington, DC. 

FREDERICK P. WAITE, Vorys, Sater, Seymour and 

Pease LLP, of Washington, DC, argued for defendantappellee Vulcan Threaded Products, Inc. With him on the 

brief was KIMBERLY R. YOUNG. 

______________________ 

Before PROST, Chief Judge, MOORE and CHEN, Circuit 

Judges.

PROST, Chief Judge. 

A.L. Patterson, Inc. (“Patterson”) appeals from the decision of the United States Court of International Trade 

entering judgment affirming the final determination of 

the United States Department of Commerce (“Commerce”) 

that Patterson’s steel coil rod falls within the scope of the 

anti-dumping order originally published in Certain Steel 

Threaded Rod from the People’s Republic of China: Notice 

of Antidumping Order, 74 Fed. Reg. 17,154, 17,155 (April 

14, 1999) (“order”). Because Commerce’s determination 

was not supported by substantial evidence, we reverse.

I 

In 2008, Vulcan Threaded Products, Inc. (“Vulcan”) 

filed a petition alleging the dumping of “certain steel 

threaded rods” from the People’s Republic of China. 

Commerce initiated an investigation by the International 
A.L. PATTERSON, INC. v. US 3

Trade Commission (“the Commission”). Following the

Commission’s determination that there was material 

injury to the domestic industry, and Commerce’s determination that Chinese imports were sold at less than fair 

value, Commerce published an antidumping duty order 

directed towards certain steel threaded rods. Commerce 

provided the following scope of the order: 

The merchandise covered by this order is steel 

threaded rod. Steel threaded rod is certain 

threaded rod, bar, or studs, of carbon quality steel, 

having a solid, circular cross section, of any diameter, in any straight length, that have been forged, 

turned, cold-drawn, cold-rolled, machine straightened, or otherwise cold-finished, and into which 

threaded grooves have been applied. In addition, 

the steel threaded rod, bar, or studs subject to this 

order are non-headed and threaded along greater 

than 25 percent of their total length. A variety of 

finishes or coatings, such as plain oil finish as a 

temporary rust protectant, zinc coating (i.e., galvanized, whether by electroplating or hotdipping), paint, and other similar finishes and 

coatings, may be applied to the merchandise.

Included in the scope of this order are steel 

threaded rod, bar, or studs, in which: (1) iron predominates, by weight, over each of the other contained elements; (2) the carbon content is 2 

percent or less, by weight; and (3) none of the elements listed below exceeds the quantity, by

weight, respectively indicated:

. . . 1

1 For brevity, we omit the list of maximum quantities by weight of each of the elements set forth in the 

order.

 
4 A.L. PATTERSON, INC. v. US

Steel threaded rod is currently classifiable 

under subheading 7318.15.5050, 7318.15.5090, 

and 7318.15.2095 of the United States Harmonized Tariff Schedule (“HTSUS”). Although the 

HTSUS subheading is provided for convenience 

and customs purposes, the written description of 

the merchandise is dispositive.

Excluded from the scope of the order are: (a) 

threaded rod, bar, or studs which are threaded only on one or both ends and the threading covers 25 

percent or less of the total length; and (b) threaded rod, bar, or studs made to American Society for 

Testing and Materials (“ASTM”) A193 Grade B7, 

ASTM A193 Grade B7M, ASTM A193 Grade B16, 

or ASTM A320 Grade L7.

Order, 74 Fed. Reg. at 17,155. The order was later modified to include an express reference to HTSUS subheading 

7318.15.5051, “Continuously threaded rod: of alloy steel.” 

76 Fed. Reg. 68,400, 68,402 (Nov. 4, 2011).

Patterson imports engineered steel coil rod (“coil rod”)

from the People’s Republic of China. At the time the 

order was published, Patterson imported coil rod under 

HTSUS subheading 7316.00.0000, “Anchors, grapnels, 

and parts thereof, of iron or steel.” In January 2011, U.S. 

Customs and Border Patrol (“Customs”) issued a Notice of 

Action to Patterson informing it that its coil rod should be 

classified under subheading 7318.15.501. Patterson was 

also notified that henceforth it would be subject to antidumping duty pursuant to the order.

In response, Patterson submitted an application for a 

scope determination to Commerce. Patterson argued that 

coil rod was not within the definition of “certain steel 

threaded rod” pursuant to the order, and that it is in fact 

within an industry different from that which the Commission investigated in its material injury inquiry. Patterson 
A.L. PATTERSON, INC. v. US 5

pointed to the description provided by Commerce that 

certain steel threaded rod

is primarily used in commercial construction to 

suspend electrical conduits, plumbing pipes, 

HVAC ductwork, and fire protection sprinkler 

pipes. It is also used to hang suspended ceilings 

and elevated conveyor belts, in joint restraint systems for underground piping, in structural tie 

downs in earthquake and hurricane-resistant systems for roofing, as headless screws, for bolting 

together pipe joints in waterworks applications, 

and for basic industrial repair.

Certain Steel Threaded Rod from China, Inv. No. 731-TA1145, USITC Pub. 4070, at 5 (Apr. 2009) (“Final Determination”). Patterson argued that, by contrast, the coil rod 

it imported was distinctly used with steel anchors for the 

rapid assembly and disassembly of molds that form large 

precast concrete sections, as well as in raising and lowering heavy concrete sections. Patterson’s Br. 4-5. Vulcan’s 

petition had not expressly mentioned “coil rod,” and 

Patterson argued that coil rod was not part of either 

Commerce’s or the Commission’s investigations. In 

particular, Patterson raised the fact that none of three 

U.S. producers of coil rod were identified in Vulcan’s 

petition or part of the underlying investigations.

On May 24, 2011, Commerce issued its final scope ruling, determining that Patterson’s coil rod was within the 

scope of the antidumping order. In its ruling, Commerce 

explained that “although Patterson argues that coil rod 

was not considered in the petition, investigation, or [the 

Commission] proceedings, the Department does not find 

that this factor outweighs the scope language, which 

indicates that coil rod was within the scope of the [order].” 

J.A. 407. Patterson challenged Commerce’s determination to the Court of International Trade. The court granted Patterson’s motion for judgment on the agency record 
6 A.L. PATTERSON, INC. v. US

and remanded to Commerce for redetermination. A.L. 

Patterson, Inc. v. United States, No. 11-00192, 2012 WL 

3538722 (Ct. Int’l Trade Aug. 6, 2012) (“Patterson I”).

The Court of International Trade’s decision was based 

on three grounds. First, it held that Commerce’s finding

that the scope language unambiguously included Patterson’s product was, on its own, insufficient to support the 

scope determination by substantial evidence. Second, the 

court noted that it was well established that prior to the 

imposition of an antidumping duty, (1) the Commission

must make a domestic injury determination and (2)

Commerce must make a determination of sales at less 

than fair value prior to imposition of antidumping duty, 

pursuant to the governing statute, 19 U.S.C. § 1673. The 

court thus ordered Commerce to consider on remand the 

evidence proffered by Patterson that its coil rods were not 

included in the underlying investigations. Third, the 

court held that because Commerce did not address any of 

Patterson’s argument and relied only on the language of 

the order, it had not adequately explained the reasons for 

its final scope determination.

In December 2012, Commerce informed Patterson of 

the final results of redetermination, wherein Commerce 

again determined that the coil rod fell within the scope of 

the order. Commerce provided a lengthier and more 

detailed analysis of the physical specifications described 

in the order, and it again determined that Patterson’s 

product met those requirements. Commerce also determined that there was no basis to conclude that the Commission excluded coil rod from its investigation. J.A. 

1159. It found that the petition did identify Chinese 

producers of coil rod, based on printouts of websites 

advertising their coil rod for sale that Vulcan submitted 

in its rebuttal comments. See J.A. 369-76. Commerce 

also found that the petition and subsequent investigations 

were intended to include coil rod producers because the 

original petitioner, Vulcan, provided an affidavit in 2011 
A.L. PATTERSON, INC. v. US 7

affirming that “Petitioner had produced coil rod in the 

past and still had the capability to do so.” J.A. 1158. 

Commerce concluded that while “coil rod” did not appear 

in any of the production or sales reports included in the 

investigation, it “does not consider that the absence of a 

product with a particular combination of characteristics” 

from those reports “creates an exclusion of that product” 

from the scope of the resultant antidumping order. J.A. 

1161. Commerce thus determined that Patterson’s coil 

rod is within the scope of the order.

Patterson challenged Commerce’s remand redetermination. The Court of International Trade issued a onepage order summarily sustaining Commerce’s determination and entering judgment for the United States. A.L. 

Patterson, Inc. v. United States, No. 11-00192 (Ct. Int’l 

Trade May 22, 2013) (“Patterson II”). Patterson appeals. 

We have jurisdiction under 28 U.S.C. § 1295(a)(5).

II

We review the Court of International Trade’s decisions concerning Commerce’s scope determinations de 

novo, “stepping into its shoes and applying the same 

standard of review.” JTEKT Corp. v. United States, 642 

F.3d 1378, 1381 (Fed. Cir. 2011). We thus hold unlawful 

any determination found “to be unsupported by substantial evidence on the record, or otherwise not in accordance 

with the law.” 19 U.S.C. § 1516a(b)(1)(B)(i).

“Substantial evidence is more than a mere scintilla. 

It means such relevant evidence as a reasonable mind 

might accept as adequate to support a conclusion.” Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938). 

“This is something less than the weight of evidence,” so 

we may find that Commerce’s determination is supported

by substantial evidence even if it is possible to draw “two 

inconsistent conclusions from the evidence.” Consolo v. 

Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966). While 

respecting agency expertise, the Supreme Court “has 
8 A.L. PATTERSON, INC. v. US

stressed the importance of not simply rubber-stamping 

agency fact-finding.” Dickinson v. Zurko, 527 U.S. 150,

162 (1999). Our review “requires an examination of the 

record as a whole, taking into account both the evidence 

that justifies and detracts from an agency’s opinion.” 

Falko-Gunter Falkner v. Inglis, 448 F.3d 1357, 1363 (Fed. 

Cir. 2006); see also Universal Camera Corp. v. NLRB, 340 

U.S. 474, 477-78 (1951). On the question at issue in this 

case, we have held that while Commerce “enjoys substantial freedom to interpret and clarify its antidumping duty 

orders . . . it may not change them.” Ericsson GE Mobile 

Commc’ns, Inc. v. United States, 60 F.3d 778, 782 (Fed. 

Cir. 1995). 

III

While there is no statute that governs the determination of whether a product is within the scope of an antidumping order, an interested party may ask Commerce to 

make such a determination, as Patterson did, pursuant to 

19 C.F.R. § 351.225(c). With respect to such a scope 

determination, the regulation requires Commerce to take 

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). When these criteria are “not dispositive,” 

Commerce considers other evidence related to the factors 

described in 19 C.F.R. § 351.225(k)(2).

The Tariff Act “provides a two-step process to address 

harm to domestic manufacturing from foreign goods sold 

at an unfair price.” United States v. Eurodif S.A., 555 

U.S. 305, 310-11 (2009). Commerce “determines that a 

class or kind of foreign merchandise is being, or is likely 

to be, sold in the United States at less than its fair value,” 

and the Commission determines that there is an industry 

in the United States that is materially injured, threatened by material injury, or whose establishment is mate-
A.L. PATTERSON, INC. v. US 9

rially retarded because of imports of that merchandise. 

19 U.S.C. § 1673. Antidumping duties may only be imposed pursuant to these investigations. The term “industry” in § 1673 means “the producers as a whole of a 

domestic like product” where “domestic like product” is 

defined as “a product which is like, or in the absence of 

like, most similar in characteristics and uses with, the 

article subject to an investigation under this subtitle.” 19 

U.S.C. § 1677(a)(4), (10). The determination of what 

goods constitute “domestic like products” defines the 

“scope of a domestic industry and, in turn, the scope of the 

Commission’s material injury analysis.” Cleo Inc. v. 

United States, 501 F.3d 1291, 1295 (Fed. Cir. 2007) (citing 

Allegheny v. Ludlum Corp. v. United States, 287 F.3d

1365, 1368 (Fed. Cir. 2002)). To determine whether coil 

rod is within the scope of the antidumping duty order in 

this case, Commerce must examine the § 351.225(k)(1)

criteria. 

Of course, while “review of the petition and the investigation may provide valuable guidance as to the interpretation of the final order . . . they cannot substitute for 

language in the order itself.” Duferco Steel, Inc. v. United 

States, 296 F.3d 1087, 1097 (Fed. Cir. 2002). This is 

because the final order indicates what the agency ultimately determined should be the scope of the order. Id. 

In Duferco, we noted that, at that time, the Court of 

International Trade’s interpretive process had “it exactly 

backwards”—relying on the petition, investigations, and 

initial order, rather than the agency’s final order to interpret scope. Id. at 1096. We held, instead, that “a predicate for the interpretive process is language in the order 

that is subject to interpretation.” Id. at 1097. Imposing 

this rule in Duferco prevented Commerce from using the 

interpretive process to “impermissibly modif[y] the orders 

to include products that were not within the scope of the 

original . . . orders.” Id. at 1098; see also Tak Fat Trading 

Co. v. United States, 396 F.3d 1378, 1383 (Fed. Cir. 2005)
10 A.L. PATTERSON, INC. v. US

(“The scope of the order can be clarified but it cannot be 

changed by the interpretive process.”).

Commerce argues that if Patterson’s coil rod falls 

within the plain language of the order’s scope, then the 

§ 351.225(k)(1) criteria need not be considered.2 Commerce’s argument cannot be reconciled with the plain 

language of the regulation which explicitly states that 

Commerce, in rendering a scope ruling, “will take 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.” § 351.225(k)(1). 

Duferco’s holding does not mean that the mere literal 

terms of the order trump any possibility of interpretation. 

In Duferco, Commerce had determined that a product was 

included within the scope of the order even though it did 

not meet the plain language. 296 F.3d at 1095. We 

reversed the Court of International Trade because looking 

to the petition and investigations cannot be grounds for 

expanding the scope beyond what Commerce had concluded when it issued the final order. Id. at 1098. 

Even when merchandise is facially covered by the literal language of the order, it may still be outside the 

scope if “the order can reasonably be interpreted so as to 

exclude it.” Mid Continent Nail Corp. v. United States, 

725 F.3d 1295, 1301 (Fed. Cir. 2013) (emphasis added).3 

2 Though, as ordered by the Court of International 

Trade, Commerce eventually did make findings on the 

§ 351.225(k)(1) criteria, it did so under “protest.” J.A. 

1152. See also Commerce’s Br. 31-33. Vulcan also raises 

this argument on appeal.

3 In Mid Continent Nail, we held that where the 

parties did not dispute that a product is within the literal 

scope of the order, there may be a “presumption” that the 

 
A.L. PATTERSON, INC. v. US 11

This principle applies even though we recognize that 

antidumping orders are often broadly drawn, since “descriptions of the subject merchandise must be written in 

general terms.” Novosteel SA v. United States, 284 F.3d 

1261, 1269-70 (Fed. Cir. 2002) (quoting 19 C.F.R. 

§ 51.225(a)). Nevertheless, Commerce must still assess 

the § 351.225(k)(1) criteria, which by plain language of 

the regulation extends the inquiry beyond the description 

of the product in the antidumping order. 

Accordingly, the question of whether Patterson’s coil 

rod meets the order’s physical specifications only begins 

the inquiry. Patterson at least presented a reasonable 

basis for interpreting the order to exclude coil rod in light 

of the § 351.225(k)(1) criteria. For example, Patterson 

presented evidence showing that coil rod is a distinct 

domestic market that the Commission did not investigate. 

Therefore, Commerce had to make findings, supported by 

substantial evidence, on whether coil rod was the kind of 

steel threaded rod sold in the domestic industry that the 

Commission investigated and found injury.

IV 

While we agree that Commerce needed to consider the

§ 351.225(k)(1) in its findings, as the Court of International Trade indicated in its decision to remand in Patterson I, we disagree with the court’s summary affirmance of 

sale of that product as a mixed media item falls within 

the scope as well. 725 F.3d at 1304. We note that here,

while Commerce cites Mid Continent Nail to support its 

position, by contrast, though Patterson concedes that its 

coil rod meets the physical description in the order, it 

nonetheless does in fact dispute whether its coil rod is the 

“steel threaded rod” to which the order literally refers. Cf.

Eckstrom Indus., Inc. v. United States, 254 F.3d 1068, 

1073-74 (Fed. Cir. 2001). 

 
12 A.L. PATTERSON, INC. v. US

Commerce’s redetermination in Patterson II. Commerce’s

analysis on remand continued to be effectively limited to 

the physical description of merchandise to the exclusion of 

the remaining § 351.225(k)(1) criteria.4 First, Commerce 

found that the petition intended to include Patterson’s coil 

rod since it met the specified dimensions and material 

composition therein. Second, Commerce found that the 

investigations tracked the physical description language 

of the petition. J.A. 1158. For the aforementioned reasons, this evidence is not dispositive on its own. The 

scope determination must be supported by substantial 

evidence, considering the § 351.225(k)(1) criteria, in view 

of the record as a whole—including evidence that coil rod 

was excluded from Commerce’s and the Commission’s

investigations.

As an initial matter, Patterson contends that its coil 

rod is physically distinguishable from the steel threaded 

rod that was the focus of Vulcan’s petition. Patterson 

argues that the coils in its coil rod are larger and spaced 

4 Commerce noted in its redetermination that to the 

extent Patterson objected to the breadth of the physical 

description provided in its order, it should have done so 

during the investigation and sought an exclusion for its 

coil rod. As an initial matter, the scope determination 

procedure is provided for in regulations to any party that 

seeks to clarify the scope of an order as it relates to its 

merchandise—there is no affirmative obligation on that 

party to challenge an order before it is published. In any 

event, in this case Patterson had no reason to believe that 

it was within the scope of the order, as no coil rod producers or importers were named in the petition nor included 

in the investigation. Indeed, Patterson was not informed 

by Commerce that it was subject to the order until January 2011 when Customs reclassified its products, nearly 

two years after the order was originally published.

 
A.L. PATTERSON, INC. v. US 13

farther apart than those of threaded rods, that coil rod is 

made of an alloy with a higher carbon content, and that it 

is shaped for its intended use of lifting and handling 

concrete. By contrast, in its petition, Vulcan indicated 

that the uses of threaded rod were “to suspend electrical 

conduit, pipes for plumbing, HVAC ductwork, and sprinkler pipes for fire protection,” as well as related structural 

applications. J.A. 93. The petition neither mentions coil 

rod nor any of the uses of coil rod. Vulcan named no

domestic producers of coil rod in its description of the 

domestic threaded rod industry. Commerce did conclude, 

retrospectively, that Vulcan intended to include coil rod 

on the basis of an affidavit it provided in 2011, in which it

averred that it had produced coil rod at some time in the 

past and had the capacity to do so again. J.A. 1158. 

However, there is no evidence that, at the time Vulcan 

filed the petition, it made coil rod, intended to make coil 

rod, or had decided not to make coil rod because of competition from imports.

There is no evidence that the threaded rod that was 

the focus of the petition was interchangeable with coil rod 

in its use as a concrete accessory or that the threaded rod 

and coil rod markets overlapped. For example, as the 

record demonstrates, these products are distributed 

through distinct channels. Steel threaded rod is sold to 

“electrical, general, HVAC, mechanical, plumbing and/or 

other contractors or consumers,” whereas coil rod is sold 

in marketing materials such as “Precast Concrete Products” and “Precast Lifting, Anchoring & Handling.” Steel 

threaded rod is sold for one-time use, whereas coil rod is 

sold for repetitive use. Moreover, coil rod is sold at over 

four times the cost, per pound, of steel threaded rod. In 

short, the record in this case does not support a finding 

that coil rod was ever considered part of the investigation. 

And given the evidence that coil rod is a distinctly different product in a different domestic industry than the steel 
14 A.L. PATTERSON, INC. v. US

threaded rod that was investigated, Commerce’s scope 

determination was not supported by substantial evidence. 

First, Commerce argues that Chinese producers of coil 

rod for import to the United States were named in the 

petition. Of the thirteen producers named in the petition, 

however, the record before Commerce only showed four 

which also sold coil rod in addition to their steel threaded 

rod. This was, moreover, based on websites presented by 

Vulcan in its March 2011 rebuttal to Patterson’s scope 

request. Even if we were to credit non-contemporaneous 

evidence regarding the Chinese importers, these four did 

not even respond to Commerce’s questionnaires during its 

investigation of less than fair value sales. See J.A. 579-

80. There is, therefore, no evidence that coil rod sales 

were included at all. To the extent the materials considered in the § 351.225(k)(1) criteria analysis mention “coil 

rod” or “coiled rod,” that product is referred to as a product separate from steel threaded rod. There were, according to the (k)(1) materials, a few questionnaire 

respondents who indicated that they make a product 

other than the certain steel threaded rod subject to the 

investigation on the same machine—coiled rod. The 

parties suggest that there is confusion as to the meaning 

intended in these references to “coil rod” and “coiled rod.” 

The (k)(1) materials can afford only two possibilities: 

either Patterson’s coil rod was not included in the investigation or it was considered by respondents to be a different product than the steel threaded rods being 

investigated and was therefore not within the scope of the 

investigation.

Second, there is no evidence to rebut Patterson’s evidence that domestic producers of coil rod were entirely 

excluded from the Commission’s investigation and that no 

evidence of sales of coil rod were included by any respondents. Commerce and Vulcan argue that coil rod can be 

made on the same production line as certain steel threaded rod. However, even if true, this is not evidence that 
A.L. PATTERSON, INC. v. US 15

any domestic producers were injured, or declined to 

produce, due to imports of coil rod from the PRC. Indeed 

the Commission’s final report includes no discussion of

either coil rod or any kind of concrete accessories rods. Of 

course, the Commission does not need to investigate every 

possible variant of a product—but that assumes the 

variants are all being sold within the same domestic

industry which is under investigation. In this case, 

however, the record shows that coil rod is directed to a 

distinct and different domestic industry, which the Commission did not investigate. 

The record before us shows that the investigations 

that supported the antidumping order was not on Patterson’s coil rod but rather other kinds of steel threaded 

rods. Cf. Sango Int’l, L.P. v. United States, 484 F.3d 1371, 

1380-81 (Fed. Cir. 2007). Commerce came forward with 

no evidence to support the conclusion that coil rod is in 

the domestic industry investigated by the Commission. In 

sum, there is insufficient evidence to conclude that Patterson’s coil rod, a distinctly different product than steel 

threaded rod, was part of the Commission’s material 

injury investigation. As such, Commerce may not impose

antidumping duties on coil rod under § 1673. See Wheatland Tube Co. v. United States, 161 F.3d 1365, 1371 (Fed. 

Cir. 1998). 

V 

Accordingly, we reverse the Court of International 

Trade’s judgment that Commerce’s scope determination 

was supported by substantial evidence; and, therefore,

Patterson’s coil rod is not subject to the antidumping 

order. 

REVERSED