Tianjin MacHinery Import & Export Corp. v. United States

Slip Op. 05-127

UNITED STATES COURT OF INTERNATIONAL TRADE

TIANJIN MACHINERY IMPORT &
EXPORT CORP.,

Plaintiff,

v.

UNITED STATES, Before: Timothy C. Stanceu, Judge

Defendant, Court No. 03-00732

and

AMES TRUE TEMPER,

Defendent-Intervenor.

OPINION

[Affirming redetermination excluding cast picks from scope of antidumping duty order]

Dated: September 22, 2005

Hume & Associates PC (Robert T. Hume and Ayesha A. Khanna) for plaintiff.

Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Commercial
Litigation Branch, Jeanne E. Davidson, Deputy Director, Commercial Litigation Branch,
Stephen C. Tosini, Trial Attorney, U.S. Department of Justice; Ada P. Bosque, Office of Chief
Counsel for Import Administration, U.S. Department of Commerce, of counsel, for defendant.

Wiley Rein & Feilding LLP (Eileen P. Bradner and Timothy C. Brightbill) for defendant-
intervenor.

Stanceu, Judge: Defendant-intervenor Ames True Temper (“Ames”) challenges a

redetermination of the U.S. Department of Commerce (“Commerce” or the “Department”),

issued in response to a remand order of this court, in which redetermination Commerce
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concluded that certain hand tools identified as “cast picks” are not within the scope of a 1991

antidumping duty order applying to picks and mattocks (the “Pick/Mattock Order”).1 In the

redetermination before the court, Commerce reversed its earlier ruling that cast picks were

within the scope of the Pick/Mattock Order, which is one of four antidumping duty orders on

heavy forged hand tools (“HFHTs”) from the People’s Republic of China (“China” or the

“PRC”). Although acknowledging that cast picks are not “forged,” Ames argues that Commerce

nevertheless should have ruled that cast picks fall within the scope of the Pick/Mattock Order

and urges this court to remand the challenged redetermination to Commerce for a second

reconsideration. The court finds no merit in defendant-intervenor’s argument and affirms

Commerce’s redetermination excluding cast picks from the scope of the Pick/Mattock Order.

I. BACKGROUND

Commerce issued antidumping orders on each of four classes of hand tools in 1991,

including the class consisting of picks and mattocks. Common language defining the scope of

the investigations applied to all four of the orders. See Antidumping Duty Orders for Heavy

Forged Hand Tools, Finished or Unfinished, With or Without Handles From the People’s

Republic of China, 56 Fed. Reg. 6,622 (Feb. 19, 1991) (“HFHT Orders”). On April 25, 2003,

plaintiff Tianjin Machinery Import & Export Corporation (“Tianjin”) requested a scope ruling

from Commerce pursuant to regulations codified at 19 C.F.R. § 351.225(c) (2003). See Scope

Ruling Request on Cast Picks Submitted on Behalf of Tianjin Machinery Import & Export

1
Picks and mattocks are digging tools. A mattock is similar to a pick but has one broad
end and one pointed end; a pick has two pointed ends. See Heavy Forged Handtools From the
People’s Republic of China, USITC Pub. No. 2357, Inv. No. 731-TA-457 (Final), at A-3 (Feb.
1991), available at 1991 ITC LEXIS 78, at *96-*97.
Court Number 03-00732 Page 3

Corporation at 1 (Apr. 25, 2003) (“Tianjin Scope Ruling Request”) (Pl.’s Mot. for J. on the

Agency R., Ex. 2). In its scope ruling request, plaintiff argued that Commerce should determine

cast picks to be outside the scope of the Pick/Mattock Order. See id. at 2.

Commerce’s scope ruling, issued on September 22, 2003, rejected Tianjin’s arguments

and concluded that cast picks were within the scope of the Pick/Mattock Order. Commerce

relied on the product description “in the petition, the initial investigation, and the determinations

of [Commerce] and the [U.S. International Trade Commission].” Memorandum from Thomas

Futtner, Acting Office Director, Office of AD/CVD Enforcement IV, to Holly A. Kuga, Acting

Deputy Assistant Secretary, Group II, Import Administration at 9 (Sept. 22, 2003) (“Tianjin

Scope Ruling”) (Pl.’s Mot. for J. on the Agency R., Ex. 3). Reasoning that the scope language in

the HFHT Orders was illustrative and not exclusionary with regard to method of production,

Commerce concluded that a product need not be forged to be considered a heavy forged hand

tool within the scope of the HFHT Orders:

[T]he scope of the orders notes that HFHTs are manufactured through a hot forge
operation, but it does not state that this is the only operation used to make HFHTs
or the only process covered by the scope of the orders. Moreover, nothing in the
record of this case suggests that the Department had a reason to limit the scope of
this proceeding to a single production type, such as forging.

Id. at 11 (emphasis omitted).

Plaintiff Tianjin filed a summons and complaint in this court on October 8 and 17, 2003,

respectively, challenging the Tianjin Scope Ruling in this proceeding and contending that

because its imported picks are hand tools that are cast, not forged, these picks should be found to

be outside the scope of the Pick/Mattock Order. On February 2, 2004, plaintiff moved for

judgment on the agency record pursuant to USCIT Rule 56.2.
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In response to plaintiff’s motion, defendant United States moved for and obtained from

this court an order for a voluntary remand. Defendant’s motion sought a voluntary remand so

that Commerce could reconsider the Tianjin Scope Ruling in view of the decision of the Court of

Appeals for the Federal Circuit (“Court of Appeals”) in Duferco Steel, Inc. v. United States, 296

F.3d 1087 (Fed. Cir. 2002) (“Duferco”). Plaintiff Tianjin consented to that motion, and

defendant-intervenor Ames did not oppose it. On April 7, 2004, the court granted defendant’s

unopposed motion for a voluntary remand.

Commerce filed its redetermination pursuant to the court’s remand on July 20, 2004, in

which the Department reversed the determination set forth as the Tianjin Scope Ruling and

concluded that the cast picks at issue do not fall within the scope of the Pick/Mattock Order. See

Results of Redetermination Pursuant to Court Remand for Tianjin Machinery Import & Export

Corporation v. United States and Ames True Temper at 1 (July 20, 2004) (“Redetermination”).

In the Redetermination, Commerce interpreted the scope of the HFHT Orders to exclude the cast

picks because they are not forged. Commerce, relying on Duferco, reasoned that because “the

language of the scope is clear, the Department cannot interpret the order in a manner that

impermissibly modifies it.” Id. at 5. Defendant-intervenor Ames, successor in interest to

Woodings-Verona Tool Works, Inc. (“Woodings-Verona”), the petitioner in the antidumping

investigation, now challenges the Redetermination, urging this court to order another remand so

that Commerce may reconsider its decision to exclude cast picks from the Pick/Mattock Order.

The court exercises jurisdiction pursuant to 28 U.S.C. § 1581(c) (2000).
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II. STANDARD OF REVIEW

The court must affirm a determination concerning the scope of an antidumping order by

Commerce if that determination is supported by substantial evidence on the record and is

otherwise in accordance with law. See 19 U.S.C. §§ 1516a(b)(1)(B)(i), 1516a(a)(2)(A)(ii),

1516a(a)(2)(B)(vi) (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).

III. DISCUSSION

This case presents the issue of whether the Redetermination, in which Commerce

concluded that the scope language of the HFHT Orders excludes cast picks, is supported by

substantial evidence on the record and is otherwise in accordance with law. For the reasons

discussed below, the court holds that Commerce, in the Redetermination, correctly interpreted

the scope language in determining that the picks at issue are excluded and that the findings of

fact necessary for that conclusion are supported by substantial evidence on the record.

With respect to the evidentiary support on the record, defendant-intervenor does not

challenge Commerce’s critical finding of fact that the picks at issue in the scope determination

are cast and not forged. Nor does Ames challenge the factual finding by Commerce that “[t]he

evidence on the record of this scope inquiry indicates that hot forging and casting operations are

different production processes.”2 Redetermination at 4. Instead, Ames takes issue with

2
Commerce characterizes as undisputed by Ames the evidence provided by plaintiff that
contrasts a casting process with a forging process. According to this evidence, casting is distinct
from forging in that during the casting process, metal is heated to a molten state, poured into a
mold, and allowed to harden into a solid state. The casting process causes changes to certain
physical properties of the metal. During the forging process, however, the metal retains its initial
Court Number 03-00732 Page 6

Commerce’s legal construction of the scope language in the HFHT Orders and Commerce’s

application of its regulations on scope determinations. Ames contends that Commerce, pursuant

to those regulations, should not have construed the scope language to exclude hand tools made

by processes other than hot forging. In support of this contention, Ames argues that the scope

should not be interpreted to exclude cast tools because the scope language expressly includes

“tampers,” a type of hand tool that Ames maintains “is not produced through a hot-forge

method,” asserting that it and its predecessor have produced tampers for years using exclusively

a casting method. See Comments of Defendant-Intervenor Ames True Temper upon Defendant

United States’ Final Results of Redetermination Pursuant to Court Remand at 3 (Aug. 19, 2004)

(“Comments of Defendant-Intervenor on Final Redetermination”). Further, Ames argues that

Commerce should have examined the documents from the underlying antidumping investigation,

including the petition and the final determination by the U.S. International Trade Commission,

for guidance in interpreting the scope language. “Had Commerce conducted such an

examination, it would have quickly found that Commerce’s initial scope determination to include

cast picks in the order on picks and mattocks was proper and legally supported, and that

Commerce’s Redetermination was contrary to its . . . regulatory duties[] and legal precedent.”

Id. at 10. Ames argues that Commerce, pursuant to its regulations, should have considered prior

scope rulings in which Commerce interpreted the HFHT Orders in the context of other hand

tools. According to Ames, these prior scope rulings support a conclusion that the scope

physical properties as it is heated only to increase malleability for the forging process. See
Redetermination at 4.
Court Number 03-00732 Page 7

language in the HFHT Orders does not confine the scope of the investigations to hand tools

produced by a forging operation.

The various arguments offered by defendant-intervenor fall short in attempting to explain

how Commerce’s construction of the scope language in the HFHT Orders is not in accordance

with law. Nor do these arguments establish that the determination to exclude cast picks from the

scope of the Pick/Mattock Order, which resulted from application of that construction to the

facts as found by Commerce, is unsupported by substantial evidence on the record.

In addressing the issue of whether the Pick/Mattock Order includes cast picks, the

Redetermination begins its analysis by interpreting the scope language in the HFHT Orders.

The HFHT Orders define the scope of the antidumping investigation for the four classes of

subject hand tools as follows:

The products covered by these investigations are HFHTs comprising the
following class or kinds of merchandise: (1) Hammers and sledges with heads
over 1.5 kg. (3.33 pounds) (“hammers/sledges”); (2) bars over 18 inches in
length, track tools and wedges (“bars/wedges”); (3) picks and mattocks
(“picks/mattocks”); and (4) axes, adzes and similar hewing tools (“axes/adzes”).

HFHTs include heads for drilling hammers, sledges, axes, mauls, picks and
mattocks, which may or may not be painted, which may or may not be finished, or
which may or may not be imported with handles; assorted bar products and track
tools including wrecking bars, digging bars and tampers; and steel woodsplitting
wedges. HFHTs are manufactured through a hot forge operation in which steel
is sheared to required length, heated to forging temperature and formed to final
shape on forging equipment using dies specific to the desired product shape and
size. Depending on the product, finishing operations may include shot blasting,
grinding, polishing and painting, and the insertion of handles for handled
products. . . . Specifically excluded from these investigations are hammers and
sledges with heads 1.5 kg. (3.33 pounds) in weight and under, hoes and rakes, and
bars 18 inches in length and under.

HFHT Orders, 56 Fed. Reg. at 6,622-23 (emphasis added).
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As directed by the Court of Appeals in Duferco, Commerce must consult the final scope

language as the primary source in making a scope ruling because “Commerce’s final

determination reflects the decision that has been made as to which merchandise is within the

final scope of the investigation and is subject to the order.” Duferco, 296 F.3d at 1,096. In

Duferco, the Court of Appeals, drawing from its previous precedents, expressed the fundamental

principle that “[s]cope 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.” Id. at 1,089. The Court explained that resort to sources of information

other than the final scope language, such as the petition and determinations made during the

investigation, “may provide valuable guidance as to the interpretation of the final order. But

they cannot substitute for language in the order itself.” Id. at 1,097. The Court of Appeals also

established a general rule “grant[ing] significant deference to Commerce’s own interpretation of

[scope] orders.” See id. at 1,094-95 (citing Ericsson GE Mobile Commc’ns, Inc. v. United

States, 60 F.3d 778, 782 (Fed. Cir. 1995)).

The scope language at issue in this case, in both of the pertinent paragraphs quoted

above, consistently identifies the merchandise subject to investigation as “forged” hand tools.

The scope language refers repeatedly to “HFHTs.” See HFHT Orders, 56 Fed. Reg. at 6,622-23.

The abbreviation “HFHTs,” as used throughout the HFHT Orders, refers to “heavy forged hand

tools.” Id. at 6,622. The scope language imparts further clarity to the point by stating

unambiguously that “HFHTs are manufactured through a hot forge operation in which steel is

sheared to required length, heated to forging temperature and formed to final shape on forging

equipment using dies specific to the desired product shape and size.” Id. Moreover, the scope
Court Number 03-00732 Page 9

language in the HFHT Orders makes no reference to any hand tool that is not identified as an

“HFHT,” i.e., as a “forged” hand tool, and does not refer to any production of a hand tool by

casting or by any manufacturing process that is distinct from a forging process.

Further, Commerce recognized in the Redetermination that construing the Pick/Mattock

Order to include cast picks would be an attempt to interpret that order “in a manner that

impermissibly modifies it.” Redermination at 5. Commerce is not permitted to “‘interpret’ an

antidumping order so as to change the scope of that order, nor can Commerce interpret an order

in a manner contrary to its terms.” Duferco, 296 F.3d at 1095 (quoting Eckstrom Indus., Inc. v.

United States, 254 F.3d 1068, 1072 (Fed. Cir. 2001)) (internal quotation marks omitted).

The court finds that Commerce’s construction of the scope language to include only

forged hand tools is consistent with the plain meaning of that language, interpreted as a whole.

Commerce’s decision to exclude from the scope of the Pick/Mattock Order the subject picks,

which are cast rather than forged, therefore is based on a sound and reasonable construction of

the scope language. In its findings of fact that the picks at issue are cast and that casting and

forging are different methods of production, the Redetermination is supported by substantial, and

undisputed, evidence. For these reasons, the court must sustain Commerce’s construction of the

scope language in the HFHT Orders and in particular Commerce’s conclusion, as stated in its

Redetermination, that the scope language in the HFHT Orders does not include, and may not

reasonably be interpreted to include, cast picks.

Defendant-intervenor’s arguments to the effect that the scope language in the HFHT

Orders is not limited to forged hand tools rely principally on the specific reference therein to

“tampers.” Ames refers to the term “tamper” as “a piece of steel sheet” attached to a “metal
Court Number 03-00732 Page 10

handle ring and support webbing” in its discussion of potential methods of production of

tampers.3 Comments of Defendant-Intervenor Ames True Temper upon Defendant United States’

Draft Redetermination Results Pursuant to Court Remand at 3 n.6 (July 16, 2004) (“Comments

of Defendant-Intervenor on Draft Redetermination”). Ames asserts that tampers are not

produced through a hot forge operation and that “[i]t is a well-known industry fact that tampers

are produced through . . . a casting method.” Id. at 3; see Comments of Defendant-Intervenor on

Final Redetermination at 3-4. Ames proceeds to argue from these assertions that Commerce

should have regarded the scope language as “ambiguous” on the issue of production method.

See Comments of Defendant-Intervenor on Draft Redetermination at 3-6; Comments of

Defendant-Intervenor on Final Redetermination at 3-7.

Ames’ various arguments with respect to tampers are unpersuasive. In a misguided

attempt to introduce ambiguity, the construction that Ames would impart to the scope language

would render that language internally inconsistent and self-contradictory. In the

Redetermination, Commerce reasonably construed the plain meaning of the scope language to

include only hand tools that are forged. In challenging that construction, defendent-intervenor

offers an unsupported factual assertion that tampers are not produced by forging and its further

assertion, irrelevant to the question of whether forged tampers exist, that its own tampers are

produced by casting. Based on these flawed assertions, Ames would have this court reject

Commerce’s internally consistent construction of the scope language in favor of an

3
In a prior proceeding, Ames defined “tampers” similarly: “tampers are essentially
square plates with reinforcing ribs set at a 90-degree angle to the plate, which converge at the
center. The center consists of a hole wherein a handle can be inserted.” Letter from Wiley Rein
& Fielding LLP for Defendant-Intervenor Ames True Temper, to Import Administration, U.S.
Department of Commerce at 7 (Aug. 25, 2003) (Redetermination, Admin. R. Doc. No. 1).
Court Number 03-00732 Page 11

unreasonable, internally inconsistent construction that includes cast hand tools. This the court

cannot do.

The court observes that common definitions of the term “tamper,” as used in the context

of hand tools, are far broader than Ames suggests. The word “tamper” is used to refer to “a

tamping-bar; an instrument or machine used for tamping.” 17 The Oxford English Dictionary

602 (2d ed. 1989); see also Academic Press Dictionary of Science and Technology 2,166 (1992)

(defining “tamper” as “any of various hand-operated or power-driven machines used to tamp

materials”). The term “tamper,” as applied to hand tools, is not limited to the particular type of

tool identified by Ames, which consists of a square plate that is allegedly cast in a design that

accommodates the addition of a separate handle. Notably, the scope language places “tamper” in

the context of an example of either a “bar product” or a “track tool.” HFHT Orders, 56 Fed.

Reg. at 6,622 (“HFHTs include . . . assorted bar products and track tools including wrecking

bars, digging bars and tampers.”); see also Heavy Forged Handtools From the People’s Republic

of China, USITC Pub. No. 2357, Inv. No. 731-TA-457 (Final), at A-3 (Feb. 1991), available at

1991 ITC LEXIS 78, at *96-*97. The tampers that constitute bar products, i.e., “tamping bars,”

have integral handles and bear little or no resemblance to the cast square-plate tamper that Ames

identifies.4 Various tampers described by technical sources as “track tools” used in the railroad

4
See, e.g., Forest Serv., U.S. Dep’t of Agric., Handtools for Trail Work: 2005 Edition 22
(Feb. 2005) (“A digging and tamping bar is about the same length as a crowbar, but much
lighter. It is designed with a chisel tip for loosening dirt or rocks and a flattened end for tamping.
These bars are not prying tools. Bars are approximately 70 inches long with a 2-inch-wide
tamping end.”).
Court Number 03-00732 Page 12

industry also differ physically from the “square plate” cast tool described by Ames.5 The court

cannot look favorably upon a construction of the scope language that requires an impermissibly

narrow interpretation of the term “tamper” and a disregard of the context in which that term is

used.

The arguments Ames advances before this court rely not only on a self-contradictory

construction of the scope language but also on an assertion of fact that is unsupported by

evidence on the record. Ames cites to no record evidence to support its assertion that tampers

are not produced by a forging operation. Ames argues that it is “a well-known industry fact” that

tampers are produced by casting. Ames also cites to “the longstanding experience of both

Chinese respondents and Ames to produce tampers using a method other than hot forging” and

the claim that “as noted by two of the Chinese exporters in the 12th administrative review of the

underlying antidumping order, the companies sold only cast tampers to the United States.”

Comments of Defendant-Intervenor on Draft Redetermination at 3-4; see Comments of

Defendant-Intervenor on Final Redetermination at 3. Defendant-intervenor’s unsupported

assertions fail to convince the court that Commerce should have found, based on substantial

evidence on the record, that forged tampers did not exist during the period of investigation or

that they do not exist now.

5
See, e.g., Railway Age’s Comprehensive Railroad Dictionary 243 (2nd ed. 2002)
(defining “tamping bar” as “[a] steel bar with a blade on each end used to drive ballast beneath
the ties”); Construction Glossary: An Encyclopedic Reference and Manual 78 (2nd ed. 1993)
(defining, in the context of railroad work, “tamping bar” as a “[s]teel bar with a blade on each
end, used to drive ballast beneath the ties”); Academic Press Dictionary of Science and
Technology 2,166 (1992) (defining “tamping pick” as “a wide, flat-headed pick used to drive
ballast under railroad ties”).
Court Number 03-00732 Page 13

With respect to the Department’s regulations, Ames relies on 19 C.F.R. § 351.225(k)(1),

which requires generally that “in considering whether a particular product is included within the

scope of an order or a suspended investigation, [Commerce] will take into account the . . .

descriptions of the merchandise contained in the petition, the initial investigation, and the

determinations of [Commerce] (including prior scope determinations) and the [U.S. International

Trade Commission].” 19 C.F.R. § 351.225(k)(1) (2004). Regarding the petition, Ames points to

the “Scope of the Investigation” section, which states that the like product consists of “all

imports from the PRC currently classified under” specified tariff provisions, which tariff

provisions are set forth in the scope language in the HFHT Order, with exceptions only for hoes

and rakes and for bars eighteen inches and under. Antidumping Petition of Woodings-Verona

Tool Works, Inc., for Heavy Forged Hand Tools, With or Without Handles, From the People’s

Republic of China at 11 (Apr. 4, 1990) (Tianjin Scope Ruling Request, Ex. 4). With respect to

the investigation by the U.S. International Trade Commission, Ames cites a statement in its final

determination that “[t]he method used most often in the production of the subject products is

forging.” Heavy Forged Handtools From the People’s Republic of China, USITC Pub. No.

2357, Inv. No. 731-TA-457 (Final), at A-4 (Feb. 1991), available at 1991 ITC LEXIS 78, at *97

(emphasis added).

In its arguments addressing § 351.225(k)(1), Ames fails to recognize that Commerce,

before “taking into account” information from the various sources identified therein, first must

conclude that the language of the order pertaining to scope is “subject to interpretation” on the

issue presented by the merchandise under consideration. See Duferco, 296 F.3d at 1097 (“Thus,

a predicate for the interpretive process is language in the order that is subject to interpretation.”).
Court Number 03-00732 Page 14

For the reasons discussed above, Commerce correctly interpreted the scope language in the

HFHT Orders as unambiguous on the issue of excluding cast tools. That language, therefore, is

not “subject to interpretation” on the issue of whether cast picks are included within the scope of

the Pick/Mattock Order.

Commerce appeared to acknowledge, even in the original scope ruling, that the scope

language in the HFHT Orders is not ambiguous and limits the scope to hand tools produced

through forging. See Tianjin Scope Ruling at 10. In the original scope ruling, Commerce quoted

the language in the HFHT Orders stating that “HFHTs are manufactured through a hot forge

operation in which steel is sheared to required length, heated to forging temperature and formed

to final shape on forging equipment using dies specific to the desired product shape and size.”

Id. (internal quotation marks omitted). The Department observed in the Tianjin Scope Ruling

that “[r]ead alone, this language seems to indicate that forging is the only possible manufacturing

process for HFHTs.” Id. The Tianjin Scope Ruling then proceeded to reach the opposite

conclusion on the question of cast hand tools by resorting to the information from the various

sources identified in § 351.225(k)(1). See id. at 10-12. Again, as the Court of Appeals

emphasized in Duferco, the petition and the investigation “may provide valuable guidance” but

“cannot substitute for language in the order itself.” Duferco, 296 F.3d at 1,097.

Defendant-intervenor’s argument based on past Commerce scope rulings interpreting the

HFHT Orders, for which Ames cites specifically to past rulings addressing a pry bar, a Pulaski

tool,6 and a skinning axe, is also unconvincing. See Comments of Defendant-Intervenor on Final

6
A “Pulaski tool” is a tool with the “ability to cut and to dig” and has “one part of the
head shaped like an axe for cutting and the other part shaped like a hoe or mattocks (sic) for
digging.” Memorandum from Thomas Futtner, Acting Director, Office 4, Import Administration,
Court Number 03-00732 Page 15

Redetermination at 11; see also Memorandum from Thomas F. Futtner, Acting Director,

Office 4, Import Administration, to Holly A. Kuga, Acting Deputy Assistant Secretary, Import

Administration at 6-12 (Mar. 8, 2001) (“Pry Bar Scope Ruling”) (Redetermination, Admin. R.

Doc. No. 1, Ex. 7); Memorandum from Thomas Futtner, Acting Director, Office 4, Import

Administration, to Holly A. Kuga, Acting Deputy Assistant Secretary, Group II, Import

Administration at 5-7 (Mar. 8, 2001) (including “Pulaski tools” within the scope of the order)

(Tianjin Scope Ruling Request, Ex. 2); Memorandum from Thomas F. Futtner, Acting Office

Director, AD/CVD Enforcement, Group II, Office 4, to Holly A. Kuga, Acting Deputy Assistant

Secretary for Import Administration at 3-6 (Mar. 9, 2001) (including skinning axes within the

scope of the order) (Pl.’s Mot. for J. on the Agency R., Ex. 7). A prior scope ruling on a

particular product, even if falling within the ambit of the “prior scope determinations” identified

in § 351.225(k)(1) as sources to be consulted by Commerce, is not designated by that regulation

as controlling or precedential in a scope ruling on a different product. Moreover, under the

principles recognized by the Court of Appeals in Duferco, Commerce may not disregard the

effect of scope language that does not include, and cannot reasonably be interpreted to include,

the product under consideration in the scope proceeding. It makes no difference that Commerce,

in prior scope determinations on different products, might be shown to have disregarded the

effect of that same scope language.

Defendant-intervenor makes an additional argument to support a request that this court

remand this matter to Commerce for reopening of the record and for the soliciting of information

to Holly A. Kuga, Acting Deputy Assistant Secretary, Group II, Import Administration at 1
(Mar. 8, 2001) (internal quotation marks and citation omitted) (Tianjin Scope Ruling Request,
Ex. 2).
Court Number 03-00732 Page 16

on how tampers are produced, the use of production methods other than hot forging in

manufacturing hand tools, and the steps leading up to the issuance of the HFHT Orders. Ames

argues that the court should order such a remand because Commerce placed on the

administrative record, without notice to the parties, two documents from the proceeding resulting

in the Pry Bar Scope Ruling. Commerce cited one of these documents in the Redermination to

point out that Ames, in that previous proceeding, had submitted through counsel a letter

acknowledging that tampers are produced by casting, welding or forging. See Letter from Wiley

Rein & Fielding LLP for Defendant-Intervenor Ames True Temper, to Import Administration,

U.S. Department of Commerce at 7 (Aug. 25, 2003) (“Tampers are generally cast, but can be

welded or forged.”) (Redetermination, Admin. R. Doc. No. 1).

The court finds no merit in defendant-intervenor’s argument concerning the two

documents that Commerce added to the record. This argument is directed, at least in part, to an

opportunity to place on the record new information to rebut the statement Ames previously made

concerning forging of tampers. However, the court does not discern in Commerce’s

supplementing the record with the two documents at issue a justification for an additional

remand. Commerce based the Redetermination on its correct conclusion of law that the scope

language unambiguously excludes cast hand tools such as the picks at issue in this proceeding.

The scope language itself, rather than the earlier statement by Ames to the effect that tampers

could be forged as well as cast, was identified in the Redetermination as the basis

for that conclusion of law. Therefore, if there was error in the failure of Commerce to notify the

parties of the inclusion of the two additional documents and to provide the parties an opportunity
Court Number 03-00732 Page 17

to submit additional information, it was harmless error and not an adequate basis upon which this

court may order another remand.

IV. CONCLUSION

Commerce employed a reasonable construction of the scope language in the HFHT

Orders in determining that the Pick/Mattock Order excludes the cast picks at issue in the

Redetermination. The findings of fact necessary to support the Redetermination, the principal

ones of which defendant-intervenor does not challenge in this proceeding, are supported by

substantial evidence on the record. Commerce’s Redetermination is therefore affirmed, and

judgment will be entered accordingly.

/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge

Dated: September 22, 2005
New York, New York