Vandewater International Inc. v. United States

United States Court of Appeals
for the Federal Circuit
______________________
VANDEWATER INTERNATIONAL INC.,
Plaintiff
SMITH-COOPER INTERNATIONAL, INC., SIGMA
CORPORATION,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
ISLAND INDUSTRIES,
Defendant
______________________
2023-1093, 2023-1141
______________________
Appeals from the United States Court of International
Trade in No. 1:18-cv-00199-LMG, Senior Judge Leo M.
Gordon.
______________________
Decided: March 6, 2025
______________________
CHRISTOPHER CURRAN, White & Case LLP, Washing-
ton, DC, argued for all plaintiffs-appellants. Plaintiff-ap-
pellant Sigma Corporation also represented by RON
K ENDLER , L UCIUS B. L AU, WALTER SPAK.
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VANDEWATER INTERNATIONAL INC. v. US 2
G REGORY SEAN M CCUE, Steptoe LLP, Washington, DC,
for plaintiff-appellant Smith-Cooper International, Inc.
Also represented by ZACHARY SIMMONS .
MEEN G EU O H , Commercial Litigation Branch, Civil Di-
vision, United States Department of Justice, Washington,
DC, argued for defendant-appellee. Also represented by
ANNE D ELMARE , B RIAN M. BOYNTON, P ATRICIA M.
MCCARTHY , L OREN MISHA P REHEIM ; J ARED M ICHAEL
CYNAMON, Office of the Chief Counsel for Trade Enforce-
ment and Compliance, United States Department of Com-
merce, Washington, DC.
______________________
Before D YK, MAYER , and REYNA, Circuit Judges.
Opinion for the court filed by Circuit Judge REYNA.
Dissenting opinion filed by Circuit Judge D YK.
REYNA, Circuit Judge.
Appellants, Smith-Cooper International, Inc. and
Sigma Corporation, appeal the final judgment of the U.S.
Court of International Trade, which affirmed the U.S. De-
partment of Commerce’s determination that steel branch
outlets imported by Vandewater International Inc. fall
within the scope of an antidumping duty order for “butt-
weld pipe fittings.” We affirm.
BACKGROUND
I. Scope Ruling Framework
U.S. trade statutes provide that an interested party
may petition the U.S. Department of Commerce (“Com-
merce”) and the U.S. International Trade Commission
(“ITC”) to initiate an antidumping duty investigation. 19
U.S.C. §§ 1673, 1673a(b). Generally, when an antidump-
ing duty investigation results in a final affirmative deter-
mination of dumping by Commerce and material injury or
threat of material injury by the ITC, Commerce will issue
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VANDEWATER INTERNATIONAL INC. v. US 3
an antidumping duty order imposing antidumping duties
on U.S. imports of the merchandise that was subject to the
investigation. Id. §§ 1673, 1673d(c)(2). When Commerce
issues an antidumping duty order, it defines the scope of
the order and “includes a description of the subject mer-
chandise, in such detail as [Commerce] deems necessary.”
Id. § 1673e(a)(2). Commerce drafts the scope in general
terms because it concerns the overall “class or kind” of mer-
chandise subject to the order. Meridian Prods. LLC v.
United States, 851 F.3d 1375, 1379 (Fed. Cir. 2017).
Key to this appeal, an interested party may request
that Commerce issue a “scope ruling” on whether a partic-
ular product is outside of or within the scope of an existing
antidumping duty order. See 19 C.F.R. § 351.225(a)
(2020).1 The implications are obvious: Imported products
that are within the scope of a duty order are subject to an-
tidumping duties upon importation. Id. § 351.225(l)(2),
(l)(3). Conversely, products that are not within the scope
of a duty order are not subject to antidumping duties upon
importation. See id. § 351.225(l)(4). A scope ruling, there-
fore, is intended to clarify whether a particular product
falls within or outside of the scope of the order. Id. §
351.225(a).
To determine if a product is within the scope of an or-
der, Commerce follows a multi-part regulatory framework.
See id. § 351.225. First, Commerce determines whether
the language of the order itself unambiguously answers the
scope question. See Meridian Prods., 851 F.3d at 1381.
1 Unless otherwise noted, this opinion will cite to the
2020 version of this regulation for the remainder of this
opinion. The 2020 version applied during the proceedings
below. Commerce has since revised this regulation. See
Regulations to Improve Administration and Enforcement
of Antidumping and Countervailing Duty Laws, 86 Fed.
Reg. 52,300 (Dep’t of Commerce Sept. 20, 2021).
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This step is sometimes referred to as the “(k)(0)” inquiry
because it precedes the analyses under sections (k)(1) and
(k)(2) of Commerce’s regulation. See id.
Second, if the scope order language does not unambig-
uously answer the scope question, then Commerce pro-
ceeds to what is known as the “(k)(1) analysis.” 19 C.F.R.
§ 351.225(k)(1). At this step, Commerce looks to the inter-
pretive sources enumerated in 19 C.F.R. § 351.225(k)(1) to
determine whether the product falls within the scope of the
order. Id.; Meridian Prods., 851 F.3d at 1382. These
sources are the petition leading to Commerce’s antidump-
ing duty investigation, the investigation itself, prior scope
determinations, and determinations by the ITC. 19 C.F.R.
§ 351.225(k)(1). If the information contained in the (k)(1)
sources dispositively answers the question of whether the
product at issue is within or outside of the scope of the or-
der, then Commerce issues a final scope ruling on the mat-
ter. Id. § 351.225(h).
However, if Commerce finds the (k)(1) sources are non-
dispositive, it will proceed to a third step: It will consider
the five additional criteria set forth in 19 C.F.R.
§ 351.225(k)(2). See Meridian Prods., 851 F.3d at 1382.
The “(k)(2) criteria” are: (i) the physical characteristics of
the product; (ii) the expectations of the ultimate purchas-
ers; (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. Id. (citing
19 C.F.R. § 351.225(k)(2)). The (k)(2) criteria help to “de-
termine whether a product is sufficiently similar as mer-
chandise unambiguously within the scope of an order as to
conclude the two are merchandise of the same class or
kind.” Wirth Ltd. v. United States, 5 F. Supp. 2d 968, 981
(Ct. Int’l Trade 1998), aff’d, 185 F.3d 882 (Fed. Cir. 1999).
Commerce has discretion in how to balance the (k)(2) crite-
ria. Meridian Prods., 851 F.3d at 1382.
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II. ADD Order and Related Proceedings
On July 6, 1992, Commerce issued an antidumping
duty order on certain steel “butt-weld pipe fittings” from
China. Antidumping Duty Order and Amendment to the
Final Determination of Sales at Less Than Fair Value; Cer-
tain Carbon Steel Butt-Weld Pipe Fittings From the Peo-
ple’s Republic of China, 57 Fed. Reg. 29702 (Dep’t of
Commerce Jul. 6, 1992) (“ADD Order”). At issue in this
appeal is the language “butt-weld pipe fittings” contained
in the following portion of the ADD Order:
The products covered by this order are carbon steel
butt-weld pipe fittings, having an inside diame-
ter of less than 14 inches, imported in either fin-
ished or unfinished form. These formed or forged
pipe fittings are used to join sections in piping sys-
tems where conditions require permanent, welded
connections, as distinguished from fittings based
on other fastening methods (e.g., threaded,
grooved, or bolted fittings).
Id., 57 Fed. Reg. at 29703 (emphasis added).
In 2009, Commerce issued a scope ruling concerning
the ADD Order at the request of King Supply Co. (“King
Supply Scope Ruling”). J.A. 873. King Supply argued that
its pipe fittings were not “butt-weld pipe fittings” within
the scope of the ADD Order because they were not used to
join sections of piping. J.A. 873–74. Commerce disagreed
with King Supply, noting that the language of the ADD Or-
der did not limit pipe fittings to those that only joined pip-
ing sections, i.e., that this description was not an “end-use
exclusion.”2 J.A. 877. Rather, Commerce noted that this
2 An end-use exclusion refers to language in an anti-
dumping duty order that “generally limit[s] the scope of
[the order] based on the ultimate usage of the imported
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was a description of a possible end-use. Id. Commerce
then determined King’s pipe fittings were “butt-weld pipe
fittings.” J.A. 875. We affirmed Commerce’s interpretation
of the ADD Order. King Supply Co., LLC v. United States,
674 F.3d 1343, 1345 (Fed. Cir. 2012).
In 2016, the ITC issued a “sunset review”3 of the ADD
Order, describing the subject merchandise as follows:
Butt weld pipe fittings are used to connect pipe sec-
tions where conditions require permanent, welded
connections. The beveled edges of butt‐weld pipe
fittings distinguish them from other types of pipe
fittings, such as threaded, grooved, or bolted fit-
tings, which rely on different types of fastening
methods. When placed against the end of a beveled
pipe or another fitting, the beveled edges of a butt‐
weld pipe fitting form a shallow channel that ac-
commodates the “bead” of the weld that fastens the
two adjoining pieces.
J.A. 622, “2016 Sunset Review.” The ITC also noted in the
sunset review the following common shapes of butt-weld
pipe fittings:
Carbon steel butt‐weld pipe fittings come in several
basic shapes, the most common of which are el-
bows, tees, reducers, and caps (figure I‐1). Elbows
merchandise.” King Supply Co., LLC v. United States, 674
F.3d 1343, 1345 n.1 (Fed. Cir. 2012).
3 The ITC and “administering authorit[ies]” conduct
periodic evaluations of antidumping and countervailing
duty orders to determine whether the orders should remain
in place. See 19 U.S.C. § 1675(c); see also Saha Thai Steel
Pipe Pub. Co. Ltd. v. United States, 101 F.4th 1310, 1320
(Fed. Cir. 2024). These evaluations are called “sunset re-
views.” Saha Thai, 101 F.4th at 1320.
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are two‐outlet fittings usually having a 45‐degree
or 90‐degree bend, tees are T‐shaped fittings hav-
ing three outlets, and reducers are two‐outlet fit-
tings that connect pipes of two different diameters.
Caps are used to seal the end of a pipe. There are
further variations within each class of fitting based
on differences in the size of one or more of the out-
lets (for example, there are reducing elbows and re-
ducing tees).
J.A. 652.
III. Proceedings before Commerce and the CIT
A. Commerce’s Scope Ruling
On May 17, 2018, Vandewater International Inc.
(“Vandewater”), a U.S. importer, requested a scope ruling
from Commerce, arguing that its steel branch outlets were
not “butt-weld pipe fittings” subject to the ADD Order.4
J.A. 167. As Vandewater’s scope ruling request explained,
its steel branch outlets have one side that is contoured,
which allows that end of the steel branch outlet to set on
(or through) the pipe “like a saddle.” J.A. 169. The other
end of the outlet, called the branch or outlet side, is formed
with a threaded or grooved end and is intended to connect
to something else, such as a sprinkler. Id. Below is a pic-
ture of a threaded steel branch outlet that was imported by
Vandewater:
4 Although a party to the proceedings below, Vande-
water is not a party to this appeal, having declared bank-
ruptcy. See Sigma Opening Br. 19 (citing Voluntary Pet.
for Non-Individuals Filing for Bankruptcy at 1, No. 21-
14098 (Bankr. S.D. Fla. ECF Apr. 28, 2021)).
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J.A. 170.
In contrast to its steel branch outlet, Vandewater ar-
gued in its scope ruling request that the two ends of a “butt-
weld pipe fitting” are not contoured but rather beveled, as
displayed in the image below.
J.A. 179.
According to Vandewater,
[b]evels are needed on each end of the butt-weld
pipe fitting itself and the part to which the butt-
weld pipe fitting is to be welded, so that when the
butt-weld pipe fitting and the adjoining part are
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VANDEWATER INTERNATIONAL INC. v. US 9
“butted” together, the bevels form a gap to fill with
welding material.
J.A. 178 (emphasis in original).
When compared side-by-side, Vandewater argued that
its steel branch outlet cannot be welded to a “butt-weld pipe
fitting,” as displayed in the image below:
J.A. 180.
On August 24, 2018, as part of Vandewater’s scope pro-
ceeding, Commerce placed on the record the petition in the
underlying antidumping investigation that gave rise to the
ADD Order, and the 2016 Sunset Review. J.A. 3111.
Around this time, appellants Smith-Cooper Interna-
tional, Inc. (“SCI”) and Sigma Corporation (“Sigma”), U.S.
importers, requested scope rulings from Commerce that its
products were not “butt-weld pipe fittings” under the ADD
Order.
On September 10, 2018, Commerce issued its scope rul-
ing in response to Vandewater’s scope ruling request. Fi-
nal Scope Ruling on Vandewater International Inc.’s Steel
Branch Outlets (Dep’t of Commerce Sept. 10, 2018) (“Scope
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Ruling”), J.A. 131–42. Commerce determined that under a
“plain reading” of the ADD Order, Vandewater’s steel
branch outlets were “butt-weld pipe fittings.” J.A. 139.
Commerce also noted that the petition, the 2016 Sunset Re-
view, and the King Scope Ruling, all (k)(1) materials, sup-
ported its conclusion that Vandewater’s steel branch
outlets were “butt-weld pipe fittings” under the ADD Or-
der. J.A. 139–41. Commerce then issued instructions to
U.S. Customs and Border Protection (“CBP”) to suspend
liquidation of entries of Vandewater’s steel branch outlets
to ensure proper enforcement of the ADD Order and accu-
rate assessment of duties. J.A. 4292–94.
Commerce separately issued scope rulings for SCI and
Sigma, finding that the ADD Order covered their products
as well. Final Scope Ruling on Sigma Corporation’s Fire-
Protection Weld Outlets (Dep’t of Commerce Dec. 11, 2018),
J.A. 3711–27; Final Scope Ruling on Smith-Cooper Inter-
national’s Cooplet Weld Outlets (Dep’t of Commerce Dec.
20, 2018), J.A. 4081–98. These scope rulings are not at is-
sue in this appeal.5
B. Vandewater’s Appeal to the CIT
Vandewater, Sigma, and SCI each appealed their re-
spective Commerce’s scope rulings to the U.S. Court of In-
ternational Trade (“CIT”), which separately docketed each
appeal. The parties then moved to consolidate their cases,
principally arguing that all three appeals involved the
same (k)(0) inquiry: whether the scope term “butt-weld
pipe fittings” unambiguously excluded their products
based on industry usage of the term “butt-weld.” See J.A.
4111–12, J.A. 4099–4108.
5 Because these two scope rulings are not on appeal
in this case, the dissent’s focus on Commerce’s analysis in
these two scope rulings is misplaced. See Dissent at 2.
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The CIT notified the parties via a letter that consolida-
tion of the cases seemed unworkable but that it nonethe-
less was considering an “efficient dispositional path” for
the three appeals. J.A. 4111–12. The CIT also noted its
confusion as to the parties’ interest in framing the appeal
around the threshold (k)(0) issue. J.A. 4112. The CIT
noted that the parties’ initial position on the (k)(0) inquiry:
indicate[d] that this [was] less a “legal” issue focus-
ing on the scope language in a vacuum than it was
a substantial evidence issue dependent on the ad-
ministrative record (because the term “butt-weld”
is not specifically defined in the scope and one must
reference something beyond the scope to know
what the term means).
Id. The CIT noted that it believed the actual issue was
whether Commerce’s (k)(1) analysis was supported by sub-
stantial evidence and if not, whether a remand was needed
to conduct a full (k)(2) analysis. J.A. 4113. The CIT also
cautioned that:
to be perfectly candid, when the court reads the
phrase “normal industry usage” for a scope term
such as “butt-weld”, it cannot help thinking that
this must, in some way, implicate the (k)(2) factors.
The court wonders how one would identify a clear
“industry usage” for the phrase “butt-weld”—one
that excludes Plaintiffs’ products—without analyz-
ing the (k)(2) factors.
Id.
The CIT then formally denied the motions to consoli-
date and ordered briefing in each of the three appeals on
the (k)(0) inquiry, i.e., whether the scope term “butt-weld
pipe fitting” has an unambiguous meaning excluding each
plaintiff’s products from the ADD Order. J.A. 4123,
J.A. 4125, J.A. 4115. The CIT noted that this was a legal
issue it would review de novo. J.A. 4115.
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C. CIT’s (k)(0) Decision
On June 3, 2020, the CIT issued the same memoran-
dum and order in all three docketed appeals concerning the
(k)(0) issue. J.A. 143–48, “CIT’s (k)(0) Decision.” The CIT
rejected the parties’ argument that the scope term “butt-
weld pipe fitting” has one clear, unambiguous meaning
given industry usage of this term.6 J.A. 147. First, the
CIT noted that one of the parties, SCI, referred to branch
outlets as a “threaded butt-welded outlet,” a “grooved butt-
welded outlet,” and “butt-weld outlets,” which weakened
the parties’ claim that uniform trade usage of “butt-weld”
excludes steel branch outlets. Id. Second, the CIT noted
that under a separate scope ruling, i.e., the “Sprink Scope
Ruling,” steel branch outlets like those at issue had been
included since 1992 under a similar antidumping duty or-
der covering butt-weld pipe fittings from Taiwan. Id. (cit-
ing Carbon Steel Butt-Weld Pipe Fittings from Taiwan,
(Dep’t of Commerce Mar. 25, 1992) (final scope ruling on
Sprink, Inc. exclusion request)). According to the CIT, this
also undercut the parties’ argument that uniform industry
usage of “butt-weld” excludes steel branch outlets. Id.
After issuing its (k)(0) Decision, the CIT then stayed
SCI’s and Sigma’s appeals and proceeded with Vande-
water’s appeal. The CIT then considered the next question,
whether Commerce correctly determined in its Scope Rul-
ing that the (k)(1) sources dispositively included Vande-
water’s steel branch outlets within the scope of the ADD
Order. See Vandewater Int’l, Inc. v. United States, 476 F.
Supp. 3d 1357, 1359 (Ct. Int’l Trade 2020) (“Remand Deci-
sion”).
6 The parties interchangeably refer to “industry us-
age” and “trade usage” in this appeal. We do so as well.
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D. CIT’s Remand Decision
On October 16, 2020, the CIT determined that Com-
merce’s Scope Ruling was unsupported by substantial evi-
dence and remanded the matter back to Commerce to
conduct a full scope inquiry and evaluate the (k)(2) factors.
Id. The CIT explained that conflicting evidence in the rec-
ord precluded a finding that the (k)(1) sources were dispos-
itive. Id. at 1361–62. The CIT noted that on the one hand,
the Sprink Scope Ruling “would seem to be dispositive”
that Vandewater’s steel branch outlets fall within the scope
of the ADD Order. Id. at 1361. The Sprink Scope Ruling
included steel branch outlets virtually identical to Vande-
water’s within the scope of a companion antidumping duty
order on butt-weld pipe fittings from Taiwan. Id. The CIT
then noted that, on the other hand, other (k)(1) factors “do
not really tell the court anything about the inclusion of
steel branch outlets within the scope of the [ADD Order].”
Id. at 1362 (discussing the petition language, the language
from the 2016 Sunset Review, and the King Scope Ruling,
a separate scope ruling under the ADD Order).
E. Commerce’s Remand Results
On October 30, 2020, Commerce initiated the scope in-
quiry and reopened the record to provide interested parties
an opportunity to submit comments and new information
relevant to the (k)(2) criteria. J.A. 22. In over 100 pages,
Commerce analyzed the (k)(2) criteria, including interested
parties’ submitted comments. J.A. 21–124. On July 22,
2021, Commerce found that, based on the (k)(2) criteria,
Vandewater’s steel branch outlets fall within the scope of
the ADD Order (“Remand Results”). J.A. 124.
As the CIT predicted, evidence of industry usage came
into play during the (k)(2) analysis. See J.A. 110–11,
J.A. 113–15. For example, for the (k)(2) criteria concerning
the expectations of ultimate purchasers, Sigma, as an in-
terested party to Commerce’s remand proceedings, argued
that different industry standards apply to steel branch
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VANDEWATER INTERNATIONAL INC. v. US 14
outlets than to “butt-weld pipe fittings,” which impacts con-
sumer expectations. J.A. 110. Commerce rejected this ar-
gument, noting that because the scope of the ADD Order is
not coextensive with any industry standard, an importer’s
characterization of applicable industry standards is “with-
out merit.” Id.
Commerce then determined that it was unnecessary to
change its previous instructions to CBP, and that if the CIT
affirms its Remand Results, CBP should continue any sus-
pension of liquidation of entries of steel branch outlets im-
ported by Vandewater. J.A. 116, J.A. 123. Vandewater
appealed Commerce’s Remand Results to the CIT.
F. CIT’s Final Decision
SCI and Sigma moved to intervene in Vandewater’s ap-
peal to the CIT. In August 2021, the CIT granted SCI’s and
Sigma’s motions. See, e.g., J.A. 4264. On September 8,
2022, the CIT sustained Commerce’s determination that
Vandewater’s products fall within the scope of the ADD Or-
der based on the (k)(2) criteria. Vandewater Int’l Inc. v.
United States, 589 F. Supp. 3d 1324, 1328 (Ct. Int’l Trade
2022) (“Final Decision”). The CIT also determined that SCI
forfeited as untimely a challenge to Commerce’s decision to
not alter its suspension instructions to CBP. Id. at
1342–43. The CIT entered judgment accordingly. Id. at
1343.
SCI and Sigma appeal the final decision.7 We have ju-
risdiction under 28 U.S.C. § 1295(a)(5).
7 As previously noted, Vandewater is not a party to
this appeal.
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D ISCUSSION
I
This court reviews CIT rulings 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) (citation omitted). With respect to scope rulings,
the question of whether a scope term is unambiguous is a
question of law that we review de novo. Whirlpool Corp. v.
United States, 890 F.3d 1302, 1308 (Fed. Cir. 2018); Merid-
ian Prods., 851 F.3d at 1382. The question of whether the
product at issue meets the unambiguous scope terms is a
question of fact that we review for substantial evidence.
Whirlpool, 890 F.3d at 1308; Meridian, 851 F.3d at 1382.
Substantial evidence means “such relevant evidence [that]
a reasonable mind may accept as adequate to support a
conclusion.” Eckstrom Indus., Inc. v. United States, 254
F.3d 1068, 1071 (Fed. Cir. 2001) (citation omitted).
II
Appellants raise three issues on appeal. First, appel-
lants challenge the (k)(0) analysis in Commerce’s Scope
Ruling and the CIT’s (k)(0) Decision. See Sigma Opening
Br. 24; SCI Opening Br. 16. Second, appellants challenge
the CIT’s Remand Decision, arguing that both Commerce
and the CIT should have concluded that the (k)(1) factors
dispositively exclude Vandewater’s steel branch outlets
from the scope of the ADD Order. See SCI Opening Br. 28.8
As such, appellants argue that Commerce should not have
reached the (k)(2) criteria. Id. Finally, only appellant SCI
challenges Commerce’s suspension of liquidation instruc-
tions. SCI Opening Br. 43. We address each point in turn.
8 Sigma joins and adopts SCI’s arguments concern-
ing Commerce’s (k)(1) analysis. Sigma Opening Br. 39. For
this reason, we cite only to SCI’s briefing for this issue.
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A
Appellants first challenge the (k)(0) analysis by Com-
merce and the CIT. See Sigma Opening Br. 24; SCI Open-
ing Br. 16. They argue that, considering industry usage,
the scope term “butt-weld pipe fittings” in the ADD Order
unambiguously excludes Vandewater’s steel branch out-
lets. See Sigma Opening Br. 24; SCI Opening Br. 16. We
disagree.
As previously noted, we review de novo whether “the
unambiguous terms of a scope control the inquiry, or
whether some ambiguity exists” in a scope order. Meridian
Prods., 851 F.3d at 1382. The relevant scope terms are “un-
ambiguous” if they have “a single clearly defined or stated
meaning.” Id. at 1381 n.7. It is a “low threshold” for show-
ing that Commerce justifiably found an ambiguity.
Novosteel SA v. U.S., Bethlehem Steel Corp., 284 F.3d 1261,
1272 (Fed. Cir. 2002).
Here, the ADD Order does not define or provide context
for the adjective “butt-weld” when referring to “butt-weld
pipe fittings.” ADD Order, 57 Fed. Reg. at 29703. How-
ever, appellants argue that there is a “well-defined and
consistently used term ‘butt-weld’ within the industry”
that excludes Vandewater’s steel branch outlets. SCI
Opening Br. 18; see also Sigma Opening Br. 22.
An antidumping duty order may have significant im-
pact in the marketplace, particularly in the industry sec-
tor(s) relevant to the product(s) investigated. Hence,
“antidumping orders should not be interpreted in a vacuum
devoid of any consideration of the way the language of the
order is used in the relevant industry.” ArcelorMittal
Stainless Belgium N.V. v. United States, 694 F.3d 82, 88
(Fed. Cir. 2012). Context, including an “industry custom,”
such as industry standards or usage, can be helpful in in-
terpreting language in a scope order. See id. This is be-
cause the primary purpose of an antidumping duty order is
to provide notice to foreign exporters of what merchandise
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VANDEWATER INTERNATIONAL INC. v. US 17
is subject to duties. Id. Thus, the terms of an order should
be consistent, when possible, with industry usage. Id.
However, when there is evidence of different industry
customs, in other words, when there is no evidence of a
“single clearly defined or stated” industry custom, such
conflicting evidence cannot establish that a scope term has
unambiguous meaning based on an alleged “well-defined
and consistently” used industry custom. See Meridian
Prods., 851 F.3d at 1382. Additionally, conflicting evidence
of industry custom is not an invitation for Commerce, or a
reviewing tribunal, to find as a matter of fact which indus-
try custom governs at the (k)(0) stage. See ArcelorMittal,
694 F.3d at 88 n.8. The (k)(0) inquiry is an exercise of legal
interpretation. Worldwide Door Components, Inc. v.
United States, 119 F.4th 959, 968 (Fed. Cir. 2024) (“The
plain meaning of an antidumping . . . duty order . . . is a
question of law reviewed de novo.”); Meridian Prods., 851
F.3d at 1382. Commerce, and even less the CIT or this
court, should not turn that analysis into a factual inquiry
about industry customs, which is more appropriately re-
served for the (k)(1) or (k)(2) evaluations.9 ArcelorMittal,
694 F.3d at 88 n.8. (noting that “consideration of industry
jargon” during a (k)(0) analysis “is not the same as conduct-
ing a full-fledge analysis of the factors embodied” in a (k)(2)
analysis). For if the CIT or this court could decide factual
issues at the threshold (k)(0) inquiry, Commerce’s primacy
in scope rulings, which are “highly fact-intensive and case-
specific,” is inappropriately minimized. King Supply, 674
9 As the dissent notes, Commerce recognized the im-
portance of considering industry usage during scope rul-
ings at the (k)(1) inquiry, not at the threshold (k)(0)
inquiry. See Dissent at 3 n.1. Commerce recently amended
its regulations to allow for consideration of “industry us-
age” as a (k)(1) material. 19 C.F.R. § 351.225(k)(1)(ii)
(2024).
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VANDEWATER INTERNATIONAL INC. v. US 18
F.3d at 1345; see also Whirlpool, 890 F.3d at 1308 (noting
that the “meaning and scope of the Orders are issues par-
ticularly within Commerce’s expertise and special compe-
tence”). Moreover, the (k)(0) inquiry could effectively
subsume the (k)(1) and (k)(2) analyses, disrupting the cur-
rent design of the scope inquiry. See 19 C.F.R. § 351.225
(2024). Such an outcome would frustrate, if not impede,
the purpose and intent of the U.S. trade statutes.
Here, contrary to appellants’ position, there is conflict-
ing evidence of industry custom concerning “butt-weld pipe
fittings.” According to appellants, it is industry custom
that a butt-weld pipe fitting be produced according to two
industry standards, American Society for Testing and Ma-
terials (“ASTM”) A234-82a and American National Stand-
ards Institute (“ANSI”) B16.9. Sigma Opening Br. 34–36;
SCI Opening Br. 41–43. According to appellants, because
Vandewater’s steel branch outlets do not conform to these
standards, these products cannot be considered “butt-weld
pipe fittings.” Sigma Opening Br. 34–36; SCI Opening Br.
41–43.
Appellee United States argues that the industry does
refer to steel branch outlets, like Vandewater’s, as “butt-
weld” products. See, e.g., Appellee Br. 36–37. First, as
appellee notes, SCI referred to steel branch outlets as
“threaded butt welded outlet,” a “grooved butt welded out-
let,” and “butt weld outlets.” Id. at 11, 44–45. Additionally,
appellee points to the 1992 Sprink Scope Ruling, where
Commerce concluded that virtually identical steel branch
outlets to Vandewater’s were “butt-weld pipe fittings,” al-
beit under a different scope order. Id. at 8, 45–46. And as
the CIT noted in its (k)(0) Decision, the 1992 Sprink Scope
Ruling would make “it hard for a reasonable mind to be
persuaded that branch outlets could never be classified as
butt-weld fittings because there is one, and only one,
widely- and well-known ‘trade usage’ of the term ‘butt-weld
fittings’ that excludes [Vandewater’s] branch outlets.”
J.A. 147.
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VANDEWATER INTERNATIONAL INC. v. US 19
Given this record of disputed industry custom, we hold
that the term “butt-weld pipe fittings” in the ADD Order is
ambiguous. Consideration of disputed industry usage is
better suited in this case for the (k)(2) analysis. And that
is what happened here. On remand to Commerce, the par-
ties submitted evidence of industry usage in connection
with various (k)(2) factors, such as consumers’ expecta-
tions. See J.A. 110. Commerce, the factfinder in scope pro-
ceedings, reviewed and weighed this evidence, and
determined that such evidence showed that Vandewater’s
steel branch outlets were “butt-weld pipe fittings” subject
to the ADD Order. J.A. 124. Tellingly, appellants do not
challenge Commerce’s (k)(2) analysis as unsupported by
substantial evidence.
B
Given that “butt-weld pipe fittings” is ambiguous, we
proceed to the (k)(1) analysis, the second issue on appeal.
Appellants argue that Commerce’s determination in its
Scope Ruling that the (k)(1) sources dispositively show that
Vandewater’s steel branch outlets are “butt-weld pipe fit-
tings” is unsupported by substantial evidence. See, e.g.,
SCI Opening Br. 30–31, 35; SCI Reply Br. 16–17. Appel-
lants also argue that, in its Remand Decision, the CIT like-
wise erred in concluding that the (k)(1) sources were not
dispositive. SCI Opening Br. 28; SCI Reply Br. 16–17. Ac-
cording to appellants, the (k)(1) sources dispositively show
that Vandewater’s steel branch outlets are not “butt-weld
pipe fittings.” SCI Opening Br. 12, 28. Thus, appellants
argue, neither Commerce nor the CIT should have reached
the (k)(2) factors. See SCI Reply Br. 16–17. We disagree.
When the (k)(1) factors are not “dispositive,” Commerce
must, in issuing its scope ruling, “further consider” the
(k)(2) criteria set forth in section 351.225(k)(2). See 19
C.F.R. § 351.225(k)(2). As previously noted, the (k)(1) fac-
tors are the description of the merchandise contained in the
antidumping petition, the initial investigation by
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VANDEWATER INTERNATIONAL INC. v. US 20
Commerce and the ITC, and the determinations of Com-
merce and the ITC. Id. § 351.225(k)(1). “Dispositive”
means having “the quality or function of directing, control-
ling, or disposing of something.” Sango Int’l, L.P. v. United
States, 484 F.3d 1371, 1379 (Fed. Cir. 2007) (citing Oxford
English Dictionary (2d ed. 1989)). Thus, to be “dispositive,”
the (k)(1) factors “must be ‘controlling’ of the scope inquiry
in the sense that they definitively answer the scope ques-
tion.” Id.
In its Scope Ruling, Commerce found that the (k)(1)
sources definitively showed that Vandewater’s steel branch
outlets are “butt-weld pipe fittings” within the scope of the
ADD Order. J.A. 141. As explained below, we agree with
the CIT that this finding is not supported by substantial
evidence. Rather, substantial evidence supports a finding
that the (k)(1) sources are non-dispositive as to this issue.
Some (k)(1) sources could indicate that Vandewater’s
branch steel outlets are not “butt-weld pipe fittings.” For
example, the petition and the 2016 Sunset Review note
that a “butt-weld pipe fitting” should have three character-
istics, which are missing from Vandewater’s steel branch
outlets. They are (1) two (or all) edges of a “butt-weld pipe
fitting” having beveled edges, (2) a fitting that connects to
the end of a pipe, and (3) the receiving pipe having beveled
edges. J.A. 712 (the petition); J.A. 622 (2016 Sunset Re-
view). As to this last point, appellants argue that the bev-
eled edges of the fitting and the receiving pipe create the
type of channel necessary for butt-welding. SCI Opening
Br. 29.
On the other hand, other (k)(1) sources could indicate
that Vandewater’s steel branch outlets are “butt-weld pipe
fittings.” For example, despite its list of three characteris-
tics of a butt-weld pipe fitting, the petition contains “Ex-
amples of Carbon Steel Butt-Weld Fittings,” such as
“saddles,” that do not meet all three previously listed char-
acteristics in the petition. See J.A. 707, J.A. 756. This
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VANDEWATER INTERNATIONAL INC. v. US 21
indicates that such characteristics may be merely exem-
plary, rather than necessary characteristics of a “butt-weld
pipe fitting.” Notably, Vandewater compared its steel
branch outlets to a “saddle” in its scope ruling request. J.A.
23, J.A. 169.
Additionally, in the King Supply Scope Ruling, Com-
merce clarified that the same ADD Order at issue here does
not limit “butt-weld pipe fittings” to those placed at the end
of a pipe, i.e., the second characteristic. J.A. 135. Vande-
water’s steel branch outlets are not placed at the end of the
pipe but rather are welded to openings on the side of a pipe.
J.A. 177–81.
Finally, in the 1992 Sprink Scope Ruling, Commerce
determined that products virtually identical to Vande-
water’s steel branch outlets were “butt-weld pipe fittings”
under a separate antidumping duty order for butt-weld
pipe fittings from Taiwan. And though the antidumping
duty order was different than the one at issue here, as the
CIT noted, the Sprink Scope Ruling is nonetheless evidence
that “[f]or over 25 years . . . Commerce has treated steel
branch outlets as butt-weld fittings.” Vandewater, 476 F.
Supp. 3d at 1361.
Thus, given that the (k)(1) sources are equivocal, sub-
stantial evidence cannot support Commerce’s Scope Ruling
that the (k)(1) sources dispositively show that Vande-
water’s steel branch outlets are “butt-weld pipe fittings.”
For this same reason, substantial evidence cannot support
appellants’ position that the (k)(1) sources dispositively
show that Vandewater’s steel branch outlets are not “butt-
weld pipe fittings.” Rather, we agree with the CIT’s Re-
mand Decision. Here, substantial evidence leads to only
one conclusion: the (k)(1) sources are non-dispositive. For
this reason, we affirm the CIT’s Remand Decision for Com-
merce to consider the (k)(2) sources.
Notably, because appellants do not challenge Com-
merce’s (k)(2) analysis in its Remand Results or the CIT’s
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VANDEWATER INTERNATIONAL INC. v. US 22
decision sustaining Commerce’s (k)(2) determination, we
affirm the CIT’s Final Decision that Vandewater’s steel
branch outlets are within the scope of the ADD Order.
C
Lastly, appellant SCI argues that even if Vandewater’s
steel branch outlets fall within the scope of the ADD Order,
Commerce nonetheless erred in one additional respect in
its (k)(2) remand determination. SCI Opening Br. 43–44.
According to SCI, Commerce erred in noting that it would
apply suspension of liquidation and cash deposit require-
ments to Vandewater’s entries made prior to October 30,
2020, the date that Commerce’s (k)(2) inquiry on remand
was initiated. Id. at 44. SCI argues that Commerce may
only impose suspension of liquidation for and collect cash
deposits on entries made on or after October 30, 2020. Id.
SCI also argues that the CIT, in its Final Decision,
erred in not addressing the merits of this argument. Id. at
13. The CIT determined that SCI forfeited its suspension
of liquidation challenge by failing to raise this challenge
before Commerce during the remand. Vandewater, 589 F.
Supp. 3d at 1342. SCI argues that this Court should find
no forfeiture and determine that suspension of liquidation
and cash deposit requirements applies only to entries made
on or after October 30, 2020. SCI Opening Br. 13.
We need not reach the issue of forfeiture or the merits
because SCI’s suspension of liquidation challenge is moot.
See Teva Pharms. USA, Inc. v. Novartis Pharms. Corp., 482
F.3d 1330, 1337–38 (Fed. Cir. 2007) (noting that federal
courts decide only “actual controversies” and are not to
“give opinions upon moot questions or abstract proposi-
tions”). It is undisputed that Vandewater did not have any
unliquidated entries of steel branch outlets pre-dating
Commerce’s October 2020 initiation of the remand proceed-
ing. See Appellee Br. 72; SCI Reply Br. 30. Thus, any al-
leged instruction by Commerce to apply suspension of
liquidation and cash deposit requirements to Vandewater’s
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VANDEWATER INTERNATIONAL INC. v. US 23
entries made prior to October 30, 2020, is moot since there
were no unliquidated entries before that date.
SCI, however, argues that this issue remains live be-
cause Commerce’s allegedly erroneous suspension instruc-
tions could somehow apply to SCI’s products and have
some allegedly harmful consequences for SCI. SCI Reply
Br. 30 (“However, by explicitly engaging not only Vande-
water, but also SCI and SIGMA, about their entries in the
proceeding below, the CIT confirmed that it was consider-
ing the factual and legal disposition of all three companies’
entries.”).
Commerce’s suspension instructions at issue in this ap-
peal are addressed only to Vandewater’s products, not SCI’s
products. Additionally, SCI’s products are not subject to
this appeal. As an intervenor, SCI cannot enlarge the is-
sues before the court. See Vinson v. Washington Gas Light
Co., 321 U.S. 489, 498 (1944). Here, the issues on appeal
stem from Commerce’s scope ruling on Vandewater’s prod-
ucts, not SCI’s or Sigma’s. Their appeals of Commerce’s
scope determinations concerning their products and any
suspension of liquidation instructions remain stayed before
the CIT. Thus, SCI and Sigma may pursue related argu-
ments concerning their own entries in their respective pro-
ceedings before the CIT once the stay is lifted.
CONCLUSION
We have considered appellants’ remaining arguments
and find them unpersuasive. We affirm the CIT’s Final
Decision sustaining Commerce’s Remand Results that
Vandewater’s steel branch outlets are within the scope of
the ADD Order.
AFFIRMED
COSTS
Costs against SCI and Sigma.
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United States Court of Appeals
for the Federal Circuit
______________________
VANDEWATER INTERNATIONAL INC.,
Plaintiff
SMITH-COOPER INTERNATIONAL, INC., SIGMA
CORPORATION,
Plaintiffs-Appellants
v.
UNITED STATES,
Defendant-Appellee
ISLAND INDUSTRIES,
Defendant
______________________
2023-1093, 2023-1141
______________________
Appeals from the United States Court of International
Trade in No. 1:18-cv-00199-LMG, Senior Judge Leo M.
Gordon.
______________________
DYK, Circuit Judge, dissenting.
This case involves interpretation of an antidumping
duty order issued by the U.S. Department of Commerce
that covered “carbon steel butt-weld pipe fittings, having
an inside diameter of less than 14 inches.” Certain Carbon
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VANDEWATER INTERNATIONAL INC. v. US 2
Steel Butt-Weld Pipe Fittings from the People’s Republic of
China, 57 Fed. Reg. 29,702, 29,703 (July 6, 1992) (“Order”).
Appellants, three separate importers, sought scope rul-
ings, arguing that under the industry practice as specified
in the American National Standards Institute (“ANSI”)
standard B.16.9 (“Factory-Made Wrought Buttwelding Fit-
tings”), the term “butt-weld pipe fittings” did not include
their imported steel branch outlets. They urged that butt-
weld fittings necessarily have beveled ends, and the pipes,
fittings, and valves to which they attach must also be bev-
eled, so that the resulting gap may be filled with welding
material for connection. In contrast, appellants claimed
their pipe branch outlets lack beveled ends and are con-
nected to holes cut into the sides of pipes instead of being
affixed to a pipe’s end.
Commerce’s first scope ruling (the Vandewater ruling)
is the only ruling before us. In this ruling, Commerce did
not consider industry practice at all. See J.A. 137–41. The
other two rulings illuminate Commerce’s reasons for not
addressing industry practice. In those rulings, Commerce
declined to consider the ANSI standard because the Order
itself made no reference to industry practice:
[N]othing in the scope language or the (k)(1)
sources limits the scope . . . to merchandise con-
forming to [ANSI] B.16.9 standards. In fact, the
scope of the order makes no mention of industry
standards. We recognize that the petition refer-
ences [ANSI] B.16.9 standards in a footnote, how-
ever, this does not limit the scope language to
include solely merchandise produced or manufac-
tured to ANSI (or ASME) B.16.9 standards.
J.A. 3724–25 (Sigma Ruling) (footnote omitted); J.A. 4094
(SCI Ruling) (same).
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VANDEWATER INTERNATIONAL INC. v. US 3
The majority affirms on the ground that the term “butt-
weld pipe fittings” in the Order was ambiguous because in-
dustry practice, in the majority’s view, was not uniform. I
respectfully dissent because Commerce clearly erred in re-
fusing to consider industry practice, and we cannot affirm
on a theory never addressed by Commerce that requires
factual determinations.
I
Commerce makes scope rulings to determine whether
certain imported merchandise is covered by an antidump-
ing duty order. 19 C.F.R. § 351.225(a) (2018).1 If an order
uses a term with an industry-accepted meaning, that
meaning governs. See ArcelorMittal Stainless Belgium
N.V. v. United States, 694 F.3d 82, 88 (Fed. Cir. 2012); see
also Meridian Prods., LLC v. United States, 851 F.3d 1375,
1381 (Fed. Cir. 2017).
When interpreting the order’s plain meaning in the in-
dustry, Commerce at the so-called (k)(0) step must consider
“the way the language of the order is used in the relevant
industry.” ArcelorMittal, 694 F.3d at 88. That inquiry—
distinct from full consideration of the (k)(2) factors—asks
only “whether the [disputed term] has an industry-ac-
cepted meaning.” Id. at 88 n.8. Commerce’s analysis must
stop after assessing the plain meaning of the order “when
read in light of industry practice.” Id. at 89 (emphasis
added).
1 Commerce recently amended the regulation setting
the procedures to be followed in scope rulings. The new
amendment recognizes the importance of trade usage, at
least at the (k)(1) step. See 19 U.S.C. § 351.225(k)(1)(ii)
(2024). We have no occasion here to discuss whether the
new amendment is consistent with the statute.
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VANDEWATER INTERNATIONAL INC. v. US 4
Thus, industry standards play a critical role in inter-
preting antidumping duty orders, both in cases where an
importer relies on industry standards, and where Com-
merce also does so. See, e.g., Saha Thai Steel Pipe Pub. Co.
v. United States, 101 F.4th 1310, 1327 (Fed. Cir. 2024). In
the context of other issues, we have similarly approved
Commerce’s resort to industry standards to administer the
antidumping laws. See, e.g., Risen Energy Co. v. United
States, 122 F.4th 1348, 1354 (Fed. Cir. 2024) (affirming
Commerce’s use of industry standards in determining nor-
mal value).
Contrary to Commerce’s conclusion, industry practice
is relevant to the plain-language inquiry regardless of
whether an order specifically incorporates the industry
practice. For example, in ArcelorMittal, we reversed Com-
merce’s scope determination for failing to apply the rele-
vant industry practice, even though the order there made
no reference to industry practice. 694 F.3d at 86, 90–91.
Similarly, in OMG, Inc. v. United States, 972 F.3d 1358
(Fed. Cir. 2020), we approved the use of dictionary defini-
tions of a disputed term by the U.S. Court of International
Trade to aid in its determination that Commerce correctly
found the plain meaning of an order to unambiguously
cover the subject merchandise. See id. at 1365–66. The
use of such definitional sources to discern the meaning of
plain language, even when the text at issue makes no ref-
erence to those sources, is an important part of the inter-
pretive process. See, e.g., Pesquera Mares Australes Ltda.
v. United States, 266 F.3d 1372, 1382 (Fed. Cir. 2001); NSK
Ltd. v. United States, 115 F.3d 965, 974 (Fed. Cir. 1997).
Commerce’s approach here was contrary to these cases.
II
The majority fails to address this obvious error in Com-
merce’s approach. Instead, the majority concludes that in-
dustry practice is irrelevant for a different reason, namely
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VANDEWATER INTERNATIONAL INC. v. US 5
that the term “butt-weld pipe fittings” is ambiguous be-
cause the record contains “conflicting evidence of industry
custom concerning ‘butt-weld pipe fittings.’” Majority Op.
18.2
The majority makes this determination in the first in-
stance even though Commerce made no finding as to ambi-
guity. It is not our role to determine whether industry
practices are uniform. Whether the industry uniformly
uses the term “butt-weld pipe fittings” according to the
ANSI standard presents a question of fact that Commerce,
the entity entrusted with “primacy in scope rulings,” id. at
2 The “conflicting evidence” on which the majority
rests its ambiguity conclusion appears to be no more than
an allegation by Island Industries (“Island”), an opponent
of Vandewater’s scope request, that one of the importers
here, SCI, referred to certain of its products as “threaded
butt-welded outlet[s],” “grooved butt-welded outlet[s],” and
“butt-weld outlet[s]” in certain of its import documents.
Majority Op. 18. The majority also finds persuasive Com-
merce’s 1992 Sprink Scope Ruling, which concluded that
products similar to appellants’ steel branch outlets fell
within the scope of a different antidumping duty order that
used the term “butt-weld type fittings.” Id. Whether this
suffices to establish a conflict in the trade’s use of the term
“butt-weld pipe fittings” is far from clear. Appellants argue
that the record is devoid of evidence corroborating Island’s
allegation that SCI used the term “butt-weld” to describe
its products. See SCI Opening Br. 20. The majority also
elides the fact that the 1992 Sprink Scope Ruling should
have little bearing here because the antidumping duty or-
der in that prior ruling concerned a different term (i.e.,
“butt-weld type fittings”). Determining the existence of
conflicting evidence for how the industry understands a
particular term is a matter for Commerce, not this court,
to decide in the first instance.
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VANDEWATER INTERNATIONAL INC. v. US 6
17, is obligated to resolve in the first instance. But Com-
merce never addressed whether there was such a conflict.
Commerce did not consider the significance of the proposed
industry usage at all.
I would vacate and remand to Commerce to address
whether industry standards resolve the scope of the anti-
dumping duty order as a matter of plain meaning in the
relevant industry at the so-called (k)(0) step, and to ad-
dress whether appellants’ merchandise fits within that in-
dustry-standard definition. I respectfully dissent.
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