Quiedan Company v. United States, Rebar Trade Action Coalition

United States Court of Appeals
for the Federal Circuit
______________________
QUIEDAN COMPANY,
Plaintiff-Appellant
v.
UNITED STATES, REBAR TRADE ACTION
COALITION,
Defendants-Appellees
______________________
2018-1962
______________________
Appeal from the United States Court of International
Trade in No. 1:16-cv-00275-JCG, Judge Jennifer Choe-
Groves.
______________________
Decided: July 2, 2019
______________________
K AVITA MOHAN, Grunfeld, Desiderio, Lebowitz, Silver-
man & Klestadt LLP, Washington, DC, argued for plaintiff-
appellant. Also represented by J ORDAN CHARLES K AHN,
ANDREW T HOMAS SCHUTZ; N ED H. MARSHAK, New York,
NY.
T ARA K. H OGAN, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washing-
ton, DC, argued for defendant-appellee United States. Also
represented by MARGARET J ANTZEN, J OSEPH H. HUNT ,
J EANNE D AVIDSON, L OREN MISHA P REHEIM ; CHRISTOPHER

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QUIEDAN COMPANY v. UNITED STATES 2
HYNER, BRENDAN SASLOW, United States Department of
Commerce, Washington, DC.
J OHN R. SHANE, Wiley Rein, LLP, Washington, DC, ar-
gued for defendant-appellee Rebar Trade Action Coalition.
Also represented by ALAN H. P RICE , J EFFREY O WEN F RANK,
MAUREEN E. T HORSON.
______________________
Before REYNA, WALLACH , and T ARANTO, Circuit Judges.
T ARANTO, Circuit Judge.
Quiedan Company is an importer of agricultural stakes
produced in the People’s Republic of China. It imports the
stakes for use in training grape vines and other plants.
Each stake is made of steel concrete reinforcing bar (rebar)
by cutting rebar to a length of four to five feet followed by
sharpening one end to a point to ease driving the stake into
the ground. The United States Department of Commerce
concluded that Quiedan’s stakes are clearly within the
scope of an antidumping duty order covering rebar from
China. We see no substantive or procedural error in that
ruling or in Commerce’s continuation of a suspension of liq-
uidation for Quiedan’s stakes. Because the Court of Inter-
national Trade drew the same conclusions, we affirm.
I
On May 6, 2016, Quiedan applied to Commerce, under
19 C.F.R. § 351.225, for a ruling on the scope of an anti-
dumping duty order that covers rebar products from
China—an order first issued in 2001 based on the required
determinations by Commerce and the International Trade
Commission. See Steel Concrete Reinforcing Bars from Bel-
arus, Indonesia, Latvia, Moldova, People’s Republic of
China, Poland, Republic of Korea and Ukraine, 66 Fed.
Reg. 46,777 (Sept. 7, 2001) (Rebar Order); see also Steel
Concrete Reinforcing Bars from Belarus, Indonesia, Latvia,
Moldova, People’s Republic of China, Poland and Ukraine:

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QUIEDAN COMPANY v. UNITED STATES 3
Continuation of Antidumping Duty Orders, 72 Fed. Reg.
44,830 (Aug. 9, 2007) (Continuation). Under the antidump-
ing duty order (ADD Order), i.e., the Rebar Order as modi-
fied by the 2007 Continuation, the “product covered is all
steel concrete reinforcing bars (rebar) sold in straight
lengths,” but “[s]pecifically excluded are plain rounds (i.e.,
non-deformed or smooth bars) and rebar that has been fur-
ther processed through bending or coating.” Rebar Order,
66 Fed. Reg. at 46,777; see also Continuation, 72 Fed. Reg.
at 46,831. In its application for a scope ruling, Quiedan
asked Commerce to determine that its stakes are outside
the scope of that definition because, it contended, they are
not straight, are further processed through bending, or are
so-called merchant bar. The Rebar Trade Action Coalition
(RTAC), the sole filer of the petition that led to issuance of
the ADD Order, opposed Quiedan’s position.
Commerce rejected Quiedan’s position. Commerce con-
sidered whether the merchandise is within the ADD Or-
der’s scope by examining Quiedan’s application for the
scope ruling and the factors specified in subsection (k)(1)—
“[t]he descriptions of the merchandise contained in the pe-
tition, the initial investigation, and the determinations of
the Secretary (including prior scope determinations) and
the Commission.” 19 C.F.R. § 351.225(k)(1). Where anal-
ysis based on those considerations answers the scope ques-
tion, Commerce is to issue “a final ruling” as to scope. 19
C.F.R. § 351.225(d). In this case, Commerce determined
that the (k)(1) analysis makes clear that Quiedan’s stakes
are “within the plain language of the” ADD Order and “not
subject to any exclusion.” J.A. 145. Commerce therefore
issued a scope ruling so stating. J.A. 139–46.
It is undisputed that Customs and Border Protection
(CBP) had already been suspending liquidation—the final
calculation of duties owed, 19 C.F.R. § 159.1—of entries of
Quiedan’s stakes, which were facially subject to the ADD
Order here. See Am. Power Pull Corp. v. United States, 121
F. Supp. 3d 1296, 1300–01 (Ct. Int’l Trade 2015)

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QUIEDAN COMPANY v. UNITED STATES 4
(describing process of cash deposits and suspension of en-
tries under an antidumping duty order pending adminis-
trative review under 19 U.S.C. § 1675). After Commerce
issued its scope ruling confirming coverage of the stakes by
the ADD Order, it instructed CBP to continue such suspen-
sion, including for entries made before the scope ruling was
issued. J.A. 191; see 19 C.F.R. § 351.225(l) (providing for
continuation of suspension of liquidations during and after
scope rulings).
Quiedan challenged the scope ruling in the Court of In-
ternational Trade under 19 U.S.C. § 1516a(a)(2)(B)(vi)
(2012) and 28 U.S.C. § 1581(c) (2012), adding an invocation
of 28 U.S.C. § 1581(i) (2012) to challenge Commerce’s in-
structions regarding suspension of liquidation. The Court
of International Trade rejected Quiedan’s challenges and
affirmed Commerce’s scope ruling and instructions.
Quiedan Co. v. United States, 294 F. Supp. 3d 1345 (Ct.
Int’l Trade 2018). Quiedan timely appealed. We have ju-
risdiction under 28 U.S.C. §§ 1295(a)(5), 2107, and 2645(c).
II
We review the Commerce decisions at issue de novo,
using the same standard of review applied by the Court of
International Trade, see Diamond Sawblades Mfrs. Coal.
v. United States, 866 F.3d 1304, 1310 (Fed. Cir. 2017),
while giving “great weight” to the informed view of the
Court of International Trade, Nan Ya Plastics Corp., Ltd.
v. United States, 810 F.3d 1333, 1341 (Fed. Cir. 2015). In
reviewing the scope ruling, we ask if the decision is “unsup-
ported by substantial evidence on the record[] or otherwise
not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i);
see Diamond Sawblades, 866 F.3d at 1310; Dupont Teijin
Films USA, LP v. United States, 407 F.3d 1211, 1215 (Fed.
Cir. 2005). In reviewing the continued-suspension instruc-
tions challenged in the Court of International Trade under
28 U.S.C. § 1581(i), we apply the standard of review of 5
U.S.C. § 706, which, as relevant here, directs us to ask if

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QUIEDAN COMPANY v. UNITED STATES 5
Commerce’s action was “arbitrary, capricious, an abuse of
discretion, or otherwise not in accordance with law.” See
28 U.S.C. § 2640(e). Applying those standards here, we af-
firm.
A
There is no dispute that Quiedan’s stakes are made
from rebar by cutting a long bar to a desired length and
sharpening the result to a point at one end through stamp-
ing, followed by removal of burrs from the point. Quiedan
makes essentially three substantive arguments that Com-
merce nonetheless erred in ruling that the stakes are
within the ADD Order. We reject all three arguments.
First: Quiedan argues that, because of the point at one
end, the products are not “sold in straight lengths,” as re-
quired by the Rebar Order, 66 Fed. Reg. at 46,777. Com-
merce correctly rejected that argument. As a matter of
common sense in context, the stakes have a “straight
length” notwithstanding the point at one end, just as a pen-
cil has a straight length even when sharpened by whittling.
Commerce explained that “[f]rom the tip of the point to
the center of the butt end, Quiedan’s rebar continuously”
extends “in the same direction,” and “the bar is objectively
straight from end to end.” J.A. 144. Commerce took a prac-
tical view suited to the context, explaining that the pres-
ence of a point “technically composed of multiple angles[]
does not change the fundamental character of the bar as
being straight throughout its length.” Id. (footnote citing
pictures of merchandise). The presence of some angles on
the stakes by itself is not disqualifying: indeed, rebar, even
when not cut to the lengths of Quiedan’s stakes, has a
roughened surface, necessarily having angles at a visible
scale. Although not necessary to Commerce’s conclusion,
the point at one end of a Quiedan stake (even if not per-
fectly conical) retains the basic structural feature of prac-
tical symmetry about a linear axis running entirely
through the stake along its “length.” See J.A. 26

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QUIEDAN COMPANY v. UNITED STATES 6
(photograph). The view of the stake along its length as a
whole is the perspective appropriate to the terminology,
“straight lengths.” In the context of the product and the
ADD Order’s language, Quiedan’s stakes must be deemed,
at the relevant scale and considered along the “length,” as
“‘without a bend, angle, or curve.’” Id. (quoting Diction-
ary.com definition). The stakes thus clearly have a
“straight length.”
Before Commerce, Quiedan suggested that its stakes,
even if they have a “straight length,” might be excluded as
having been “processed through bending.” See id. Quiedan
does not seem to make any argument in this court that the
“processed through bending” exclusion applies if the “sold
in straight lengths” requirement is met. See Oral Argu-
ment at 5:58–6:15 (“Q: How are they bent? A: Because
they’re no longer straight.”). Regardless, Quiedan has pro-
vided no basis for a conclusion that the stamping-and-burr-
removal process could fairly be described as a process of
“bending.”
Second: Quiedan argues that the stakes are excluded
from the ADD Order because they are “merchant bar.”
That term does not appear in the ADD Order, but the In-
ternational Trade Commission used it, evidently to refer to
something different from “rebar” and hence outside the
ADD Order, when in 2013 it explained the results of its
Second Sunset Review of the Order. See Steel Concrete Re-
inforcing Bar from Belarus, China, Indonesia, Latvia, Mol-
dova, Poland, and Ukraine, Inv. Nos. 731-TA-873, 731-TA-
874, 731-TA-875, USITC Pub. 4409, at I-25 (July 1, 2013)
(conducted pursuant to 19 U.S.C. § 1675(c)); J.A. 117. We
conclude that Commerce correctly rejected Quiedan’s argu-
ment that the stakes at issue are “merchant bar.” J.A. 145.
The Commission said that “[m]erchant bar products
include bars with round, square, flat, angled, and chan-
neled cross sections, and are used by fabricators and man-
ufacturers to produce a variety of products, including steel

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QUIEDAN COMPANY v. UNITED STATES 7
floor and roof joists, safety walkways, ornamental furni-
ture, stair railings, and farm equipment.” J.A. 117. Com-
merce determined that Quiedan’s stakes are not “merchant
bar,” because “there is no record evidence that demon-
strates sharpening a piece of deformed rebar to a point
transforms it into merchant bar.” J.A. 145. Commerce
“disagree[d] that the slight change in appearance of the re-
bar that has been stamped to a point and deburred changes
the character of the deformed rebar to such a degree that
it becomes merchant bar.” Id.
Quiedan makes no effort in this appeal to demonstrate
that there was any record evidence that merchant bar can
result from starting with rebar and simply cutting it and
sharpening an end to a deburred point. To the contrary,
the Second Sunset Review, which is the sole basis for
Quiedan’s argument, nowhere suggests that merchant bar
can result from rebar in those ways. It says only that mer-
chant bar can be produced using the same equipment that
some manufacturers use to make rebar. See USITC Pub.
4409, at I-25.
Quiedan observes that, early in the scope ruling here,
Commerce said that “the description of the merchandise
under consideration also comports with” a description
found in the Second Sunset Review, citing and quoting that
Review’s description of merchant bar. J.A. 143 & n.31.
Quiedan’s observation about the scope ruling is correct, but
it does not undermine Commerce’s ruling. What Com-
merce said was a mistake, and Commerce did not repeat it
or rely on it later in its analysis, including in the explana-
tion of why Quiedan’s stakes are not merchant bar. We
agree with the Court of International Trade that the minor
error in Commerce’s footnote did not influence the decision
and does not justify a remand. See Quiedan, 294 F. Supp.
3d at 1355 n.5.
Third: Quiedan argues that “rebar” is defined in some
way by what it is used for. Specifically, Quiedan suggests

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QUIEDAN COMPANY v. UNITED STATES 8
that the intended use of a sharpened length of rebar as an
agricultural stake, rather than as support for concrete,
makes the stakes not rebar. We reject this argument.
We have recognized a strong presumption that use con-
ditions must be clear before a Commerce order can properly
be construed as making the scope of covered merchandise
turn on how an item is used (or intended to be used), rather
than what it is. See King Supply Co. v. United States, 674
F.3d 1343, 1349 (Fed. Cir. 2012). There is no basis for de-
parting from that approach here. Quiedan supplies no def-
inition of “rebar” that goes beyond indicating how it is
generally used. Such a definition is not enough to exclude
a relatively unusual intended or actual use of the same
physical product.
Commerce so stated when, in this case, it summarized
its 2012 ruling that “the usage of rebar . . . was immaterial
to the scope” of the ADD Order. J.A. 141; J.A. 140–41 (sum-
marizing “Antidumping Duty Order on Steel Concrete Re-
inforcing Bars from the People’s Republic of China; Final
Scope Ruling: Steel Pins,” dated January 19, 2012). But
Commerce noted that “Quiedan’s request does not assert
that the end use or length of its training stakes be taken
into consideration.” J.A. 145; see J.A. 29–30 (Quiedan’s
Scope Ruling Request) (“Quiedan is not arguing that the
mere size or use of its Training Stakes takes them outside
the scope of the Rebar Order. Rather, for the reasons set
out below, Quiedan is seeking a scope ruling from [Com-
merce] confirming that the Training Stakes are excluded
and/or outside the scope of the [ADD Order] due to their
physical properties and fabrication.”). For that reason,
Commerce properly found it unnecessary to rely on its 2012
ruling in this matter.
We have considered Quiedan’s remaining arguments
and find them unpersuasive. Quiedan’s arguments fail to
undermine Commerce’s conclusion that the stakes at issue
are clearly within the language of the ADD Order,

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QUIEDAN COMPANY v. UNITED STATES 9
considering the factors specified in § 351.225(k)(1). We
therefore reject Quiedan’s substantive challenges to Com-
merce’s scope ruling.
B
Quiedan has made two additional, related arguments:
(1) Commerce should have initiated a formal scope inquiry,
and (2) Commerce improperly instructed CBP to continue
suspending liquidation on the training stakes, including
for entries made before Commerce issued its final scope
ruling. Quiedan’s briefing seems to accept that neither ar-
gument has merit if, as we conclude in agreement with
Commerce and the Court of International Trade, there is
no genuine ambiguity about the coverage by the anti-
dumping duty order of the merchandise at issue. See Ap-
pellant Br. 35–36, 41–48; Reply Br. 22, 28. In fact, it is
clear that no formal inquiry is required where a (k)(1) anal-
ysis is dispositive. See 19 C.F.R. § 351.225(d); AMS As-
socs., Inc. v. United States, 737 F.3d 1338, 1344 (Fed. Cir.
2013). It is similarly clear that continued suspension of
liquidation is proper, at least where the scope ruling con-
firms a clear meaning. See 19 C.F.R. § 351.225(l); Sun-
preme Inc. v. United States, 924 F.3d 1198, 1212–15 (Fed.
Cir. 2019) (explaining that continuation of suspension is
proper if the underlying order is clear, but determining
that the order in the particular case was ambiguous by
Commerce’s own acknowledgment). Because we have de-
termined that the ADD Order is clear in covering
Quiedan’s stakes, we reject Quiedan’s arguments of error
regarding initiation of a formal scope inquiry and suspen-
sion of liquidation.
III
For the foregoing reasons, we affirm the judgment of
the Court of International Trade.
No costs.
AFFIRMED

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