Monosodium Glutamate From the People's Republic of China, and the Republic of Indonesia: Initiation of Antidumping Duty Investigations

AGENCY:

Enforcement and Compliance, formerly Import Administration, International Trade Administration, Department of Commerce.

DATES:

Effective Date: October 31, 2013.

FOR FURTHER INFORMATION CONTACT:

Jun Jack Zhao (the People's Republic of China (PRC)) or Gene Calvert (the Republic of Indonesia (Indonesia)) at (202) 482-1396 or (202) 482-3586, respectively, AD/CVD Operations, Office VII, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230.

SUPPLEMENTARY INFORMATION:

The Petitions

On September 16, 2013, the Department of Commerce (the Department) received antidumping duty (AD) petitions concerning imports of monosodium glutamate (MSG) from the PRC and Indonesia filed in proper form on behalf of Ajinomoto North America Inc. (Petitioner). Petitioner is a domestic producer of MSG. On September 20, 2013, the Department requested additional information and clarification of certain areas of the petitions. Petitioner filed responses to these requests on September 24, 2013, and September 26, 2013.

In accordance with section 732(b) of the Tariff Act of 1930, as amended (the Act), Petitioner alleges that imports of MSG from Indonesia and the PRC are being, or are likely to be, sold in the United States at less than fair value within the meaning of section 731 of the Act, and that such imports are materially injuring, or threatening material injury to, an industry in the United States. Also, consistent with section 732(b)(1) of the Act, the petitions are accompanied by information reasonably available to Petitioner in support of its allegations.

The Department finds that Petitioner filed these petitions on behalf of the domestic industry because Petitioner is an interested party as defined in section 771(9)(C) of the Act. The Department also finds that Petitioner has demonstrated sufficient industry support with respect to the initiation of the AD investigations that Petitioner is requesting.

Periods of Investigation

Because the petitions were filed on September 16, 2013, the period of investigation (POI) for the PRC investigation is January 1, 2013, through June 30, 2013. The POI for the Indonesia investigation is July 1, 2012, through June 30, 2013.

Scope of the Investigations

The product covered by these investigations is MSG from Indonesia and the PRC.

Comments on the Scope of the Investigations

During our review of the petitions, we discussed the scope with Petitioner to ensure that it is an accurate reflection of the product for which the domestic industry is seeking relief. Moreover, as discussed in the preamble to the regulations, we are setting aside a period for interested parties to raise issues regarding product coverage. The Department encourages all interested parties to submit such comments by November 12, 2013, 5:00 p.m. Eastern Time, which is 20 calendar days from the signature date of this notice. In addition, all comments and submissions to the Department must be filed electronically using Enforcement and Compliance's electronic service system (IA ACCESS). An electronically filed document must be received successfully in its entirety by the Department's electronic records system, IA ACCESS, by the time and date noted above. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the deadline noted above. All comments must be filed on the records of both the PRC and Indonesia AD investigations, as well as the concurrent PRC and Indonesia countervailing duty (CVD) investigations.

The period for scope comments is intended to provide the Department with ample opportunity to consider all comments and to consult with parties prior to the issuance of the preliminary determinations.

Comments on the Product Characteristics for Antidumping Duty Questionnaires

The Department requests comments from interested parties regarding the appropriate physical characteristics of MSG to be reported in response to the Department's AD questionnaires. This information will be used to identify the key physical characteristics of the subject merchandise in order to report accurately the relevant factors of production and costs, as well as to develop appropriate product-comparison criteria.

Interested parties may provide any information or comments they feel are relevant to the development of an accurate list of physical characteristics. Specifically, they may provide comments as to which characteristics are appropriate to use as: (1) General product characteristics and (2) product-comparison criteria. We note that it is not always appropriate to use all product characteristics as product-comparison criteria. We base product-comparison criteria on meaningful commercial differences among products. In other words, while there may be some physical product characteristics utilized by manufacturers to describe MSG, it may be that only a select few product characteristics take into account commercially meaningful physical characteristics. In addition, interested parties may comment on the order in which the physical characteristics should be used in matching products. Generally, the Department attempts to list the most important physical characteristics first and the least important characteristics last.

In order to consider the suggestions of interested parties in developing and issuing the AD questionnaires, we must receive comments on product characteristics by November 12, 2013. Rebuttal comments must be received by November 18, 2013. All comments and submissions to the Department must be filed electronically using IA ACCESS, as referenced above.

Filing Requirements

All submissions to the Department must be filed electronically using IA ACCESS. An electronically filed document must be received successfully in its entirety by the time and date noted above. Documents excepted from the electronic submission requirements must be filed manually (i.e., in paper form) with Enforcement and Compliance's APO/Dockets Unit, Room 1870, U.S. Department of Commerce, 14th Street and Constitution Avenue NW., Washington, DC 20230, and stamped with the date and time of receipt by the deadline noted above.

Tolling of Deadlines

As explained in the memorandum from the Assistant Secretary for Enforcement and Compliance, the Department has exercised its discretion to toll deadlines for the duration of the closure of the Federal Government from October 1, through October 16, 2013. Therefore, all deadlines in this segment of the proceeding have been tolled by 16 days. The revised deadline for the initiation of these investigations is October 23, 2013.

Determination of Industry Support for the Petitions

Section 732(b)(1) of the Act requires that a petition be filed on behalf of the domestic industry. Section 732(c)(4)(A) of the Act provides that a petition meets this requirement if the domestic producers or workers who support the petition account for: (i) At least 25 percent of the total production of the domestic like product; and (ii) more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petition. Moreover, section 732(c)(4)(D) of the Act provides that, if the petition does not establish support of domestic producers or workers accounting for more than 50 percent of the total production of the domestic like product, the Department shall: (i) Poll the industry or rely on other information in order to determine if there is support for the petition, as required by subparagraph (A); or (ii) determine industry support using a statistically valid sampling method to poll the “industry.”

Section 771(4)(A) of the Act defines the “industry” as the producers as a whole of a domestic like product. Thus, to determine whether a petition has the requisite industry support, the statute directs the Department to look to producers and workers who produce the domestic like product. The International Trade Commission (ITC), which is responsible for determining whether “the domestic industry” has been injured, must also determine what constitutes a domestic like product in order to define the industry. While both the Department and the ITC must apply the same statutory definition regarding the domestic like product (see section 771(10) of the Act), they do so for different purposes and pursuant to a separate and distinct authority. In addition, the Department's determination is subject to limitations of time and information. Although this may result in different definitions of the like product, such differences do not render the decision of either agency contrary to law.

Section 771(10) of the Act defines the domestic like product as “a product which is like, or in the absence of like, most similar in characteristics and uses with, the article subject to an investigation under this title.” Thus, the reference point from which the domestic like product analysis begins is “the article subject to an investigation” (i.e., the class or kind of merchandise to be investigated, which normally will be the scope as defined in the petitions).

With regard to the domestic like product, Petitioner does not offer a definition of the domestic like product distinct from the scope of the investigations. Based on our analysis of the information submitted on the record, we have determined that MSG constitutes a single domestic like product and we have analyzed industry support in terms of that domestic like product.

In determining whether Petitioner has standing under section 732(c)(4)(A) of the Act, we considered the industry support data contained in the petitions with reference to the domestic like product as defined in the “Scope of the Investigations,” in Appendix I of this notice. To establish industry support, Petitioner provided its own production of the domestic like product in 2012. Petitioner states that there are no other known producers of MSG in the United States; therefore, the petitions are supported by 100 percent of the U.S. industry.

Our review of the data provided in the petitions and other information readily available to the Department indicates that Petitioner has established industry support. First, the petitions established support from domestic producers (or workers) accounting for more than 50 percent of the total production of the domestic like product and, as such, the Department is not required to take further action in order to evaluate industry support (e.g., polling). Second, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(i) of the Act because the domestic producers (or workers) who support the petitions account for at least 25 percent of the total production of the domestic like product. Finally, the domestic producers (or workers) have met the statutory criteria for industry support under section 732(c)(4)(A)(ii) of the Act because the domestic producers (or workers) who support the petitions account for more than 50 percent of the production of the domestic like product produced by that portion of the industry expressing support for, or opposition to, the petitions. Accordingly, the Department determines that the petitions were filed on behalf of the domestic industry within the meaning of section 732(b)(1) of the Act.

The Department finds that Petitioner filed the petitions on behalf of the domestic industry because it is an interested party as defined in section 771(9)(C) of the Act and it has demonstrated sufficient industry support with respect to the AD investigations that it is requesting the Department initiate.

Allegations and Evidence of Material Injury and Causation

Petitioner alleges that the U.S. industry producing the domestic like product is being materially injured, or is threatened with material injury, by reason of the imports of the subject merchandise sold at less than normal value (NV). In addition, Petitioner alleges that subject imports exceed the negligibility threshold provided for under section 771(24)(A) of the Act. Petitioner contends that the industry's injured condition is illustrated by reduced market share; underselling and price depression or suppression; lost sales and revenues; and decline in financial performance. We have assessed the allegations and supporting evidence regarding material injury, threat of material injury, and causation, and we have determined that these allegations are properly supported by adequate evidence and meet the statutory requirements for initiation.

Allegations of Sales at Less Than Fair Value

The following is a description of the allegations of sales at less than fair value upon which the Department has based its decision to initiate investigations of imports of MSG from Indonesia and the PRC. The sources of data for the deductions and adjustments relating to U.S. price and NV are discussed in greater detail in the Indonesia AD Initiation Checklist and the PRC AD Initiation Checklist.

Export Price

Indonesia

For Indonesia, Petitioner calculated an EP based on monthly AUVs for the POI for U.S. imports of MSG for consumption from Indonesia under HTSUS subheading 2922.42.1000 (the subheading relevant to MSG) using the ITC's Dataweb. Petitioner also calculated a POI weighted-average AUV. From these AUVs, Petitioner deducted an amount for foreign brokerage and handling charges in Indonesia, and foreign inland freight from the manufacturing plant to the port of exportation.

PRC

Petitioner calculated an export price (EP) based on monthly average unit values (AUVs) for the POI for U.S. imports of MSG for consumption from the PRC under Harmonized Tariff Schedule of the United States (HTSUS) subheading 2922.42.1000 (the subheading relevant to MSG) using the ITC's Dataweb. Petitioner also calculated a POI weighted-average AUV. In addition, using detailed information regarding the month, district of unlading, and district of entry, Petitioner was able to estimate certain dumping margins for individual transactions between a Chinese exporter of MSG and a U.S. importer of MSG by matching ship manifest data to the official import statistics. Petitioner used official import statistics to calculate the U.S. price for two such individual transactions. Petitioner deducted an amount for foreign brokerage and handling charges in the PRC, and foreign inland freight from the manufacturing plant to the port of exportation from the AUVs and the import prices for the individual import transactions.

Normal Value

Indonesia

Petitioner based NV on constructed value (CV), as neither a home market nor a third-country price was reasonably available. Pursuant to section 773(e) of the Act, CV consists of the cost of manufacturing (COM); SG&A expenses; financial expenses; packing expenses; and profit. Petitioner owns and operates two MSG production facilities in Indonesia, PT Ajinomoto Indonesia (AJIND) and PT Ajinex International (AJINEX) which, according to Petitioner, are similar to Indonesian MSG producer CJ Indonesia's production facilities in terms of production capacity, production equipment, and production inputs. Petitioner calculated COM and packing expenses based on the actual cost data of the Petitioner's MSG producers in Indonesia.

To determine SG&A and profit rates, Petitioner relied on the average rates calculated based on the financial statements for AJIND for the year ended March 31, 2013 and the financial statements for AJINEX for the year ended March 31, 2012, because the March 31, 2013 financial statements for AJINEX were not available to Petitioner at the time of the filing of the petition.

To calculate the financial expense rate, Petitioner relied on the financial statements of CJ Indonesia's parent company, CJ Cheil Jedang Corporation, for the fiscal year ending December 31, 2011.

PRC

Petitioner claims that the PRC is a non-market economy (NME) country, and that this designation remains in effect as of the date of this petition. The presumption of NME status for the PRC has not been revoked by the Department and, therefore, in accordance with section 771(18)(C)(i) of the Act, remains in effect for purposes of the initiation of this investigation. Accordingly, the NV of the product for the investigation is appropriately based on factors of production valued in a surrogate market-economy country in accordance with section 773(c) of the Act. In the course of this investigation, all parties, including the public, will have the opportunity to provide relevant information related to the issues of the PRC's NME status and granting of separate rates to individual exporters.

Petitioner contends that Indonesia is the appropriate surrogate country for the PRC because: (1) It is at a level of economic development comparable to that of the PRC, (2) it is a significant producer of comparable merchandise relative to the MSG that is the subject of the petition, and (3) the data available from Indonesia for valuing factors of production are available and reliable. Based on the information provided by Petitioner, we conclude that it is appropriate to use Indonesia as a surrogate country for initiation purposes. After initiation of this investigation, interested parties will have the opportunity to submit comments regarding surrogate country selection and, pursuant to 19 CFR 351.301(c)(3)(i), will be provided an opportunity to submit publicly available information to value factors of production (FOPs) within 40 days before the scheduled date of the preliminary determination.

Petitioner calculated NV using the Department's NME methodology as required by 19 CFR 351.202(b)(7)(i)(C) and 19 CFR 351.408. In calculating NV, Petitioner based the quantity of each of the inputs used to manufacture the subject merchandise on its own consumption experience, which, Petitioner contends is, to the best of its knowledge, similar to the consumption of PRC producers.

Petitioner valued the factors of production using reasonably available, public surrogate country data, specifically, Indonesian import data from the Global Trade Atlas (GTA) for the period December 2012—May 2013, the most recent six-month period for which data were available. Petitioners excluded all import values from countries previously determined by the Department to maintain broadly available, non-industry-specific export subsidies and from countries previously determined by the Department to be NME countries. In addition, in accordance with the Department's practice, the average import values exclude imports that were labeled as originating from an unidentified country. In addition, Petitioner made currency conversions, where applicable, based on the POI-average Indonesian Rupiah/U.S. dollar exchange rates. The Department determines that the surrogate values used by Petitioner are reasonably available and, thus, are acceptable for purposes of initiation.

Petitioner valued direct material costs using Indonesia import data from the GTA. Petitioner applied certain conversion factors to align the units of measure with its own factors of production.

Petitioner calculated the labor expense rate using 2010 data for Indonesia from Chapter 5B of the International Labor Organization's (ILO's) wage data because wage data from Chapter 6 was not available for Indonesia.

Petitioner based the factor values for electricity and steam on the industry rates set forth in the 2012 Handbook of Energy and Economic Statistics of Indonesia, published by the Indonesian Ministry of Energy and Mineral Resources. Petitioner calculated the factor value for water based on Indonesian water rates.

Petitioner calculated financial ratios (i.e., factory overhead expenses, selling, general, and administrative (SG&A) expenses, and profit) based on the most recent audited financial statements of PT Budi Acid Jaya, an Indonesian manufacturer of citric acid (a product that Petitioner claims is comparable to MSG), and majority owner of PT Ve Wong Indonesia, an Indonesian producer of MSG.

For packing inputs, Petitioner claims that the majority of MSG imported to the United States from the PRC is packaged in 50-pound bags. Petitioner obtained Indonesian import data from the GTA to derive the surrogate values for these bags.

Fair Value Comparisons

Based on the data provided by Petitioner, there is reason to believe that imports of MSG from Indonesia and the PRC are being, or are likely to be, sold in the United States at less than fair value. Based on comparisons of EP to CV in accordance with section 773(a)(4) of the Act, Petitioner calculated the estimated dumping margins, based on POI weighted-average AUVs, to be 72.59 percent with respect to imports of MSG from the PRC, and 55.25 percent with respect to imports of MSG from Indonesia. For the individual transactions between a PRC exporter and a U.S. importer, Petitioner calculated margins between 103.76 and 204.69 percent.

Initiation of AD Investigations

Based on our examination of the petitions on MSG from Indonesia and the PRC, the Department finds that the petitions meet the requirements of section 732 of the Act. Therefore, we are initiating AD investigations to determine whether imports of MSG from Indonesia and the PRC are being, or likely to be, sold in the United States at less than fair value. In accordance with section 733(b)(1)(A) of the Act and 19 CFR 351.205(b)(1), unless postponed, we will issue our preliminary determinations no later than 140 days after the publication date of this initiation notice.

Respondent Selection

Indonesia

The Department intends to select respondents based on U.S. Customs and Border Protection (CBP) data for U.S. imports during the POI (i.e., July 1, 2012, through June 30, 2013, for Indonesia) under the following HTSUS numbers: 2922.42.10.00, 2922.42.50.00, 2103.90.72.00, 2103.90.74.00, 2103.90.78.00, 2103.90.80.00, and 2103.90.90.91. We intend to release the CBP data under Administrative Protective Order (APO) to all parties with access to information protected by APO within five days of the publication of the initiation of these investigations. Interested parties may submit comments regarding the CBP data and respondent selection within five calendar days of the publication of the initiation of these investigations. Comments on respondent selection must be filed electronically using IA ACCESS in accordance with the filing requirements, referenced above. We intend to make our decision regarding respondent selection within 20 days of the publication of this notice.

PRC

With respect to the PRC, in accordance with our standard practice for respondent selection for NME countries, we intend to issue quantity and value questionnaires to each potential respondent, and will base respondent selection on the responses received. In addition, the Department will post the quantity and value questionnaire along with the filing instructions on the Enforcement and Compliance Web site ( http://www.trade.gov/enforcement/news.asp ). Exporters and producers of MSG from the PRC that do not receive quantity and value questionnaires via mail may still submit a quantity and value response, and can obtain a copy from the Enforcement and Compliance Web site. The quantity and value questionnaire must be submitted by all PRC exporters/producers by no later than November 12, 2013. All quantity and value questionnaires must be filed electronically using IA ACCESS.

Separate Rates

In order to obtain separate rate status in an NME investigation, exporters and producers must submit a separate rate application. The specific requirements for submitting the separate rate application in the PRC investigation are outlined in detail in the application itself, which will be available on the Department's Web site at http://www.trade.gov/enforcement/news.asp on the date of publication of this initiation notice in the Federal Register. The separate rate application will be due 60 days after the publication of this initiation notice. For exporters and producers who submit a separate rate status application and have been selected as mandatory respondents, these exporters and producers will no longer be eligible for consideration for separate rate status unless they respond to all parts of the Department's AD questionnaire as mandatory respondents. The Department requires that PRC respondents submit a response to the separate rate application by the deadline referenced above in order to receive consideration for separate rate status.

Use of Combination Rates

The Department will calculate combination rates for certain respondents that are eligible for a separate rate in an NME investigation. The Separate Rates and Combination Rates Bulletin states:

{w}hile continuing the practice of assigning separate rates only to exporters, all separate rates that the Department will now assign in its NME investigations will be specific to those producers that supplied the exporter during the period of investigation. Note, however, that one rate is calculated for the exporter and all of the producers which supplied subject merchandise to it during the period of investigation. This practice applies both to mandatory respondents receiving an individually calculated separate rate as well as the pool of non-investigated firms receiving the weighted-average of the individually calculated rates. This practice is referred to as the application of “combination rates” because such rates apply to specific combinations of exporters and one or more producers. The cash-deposit rate assigned to an exporter will apply only to merchandise both exported by the firm in question and produced by a firm that supplied the exporter during the period of investigation.

Distribution of Copies of the Petitions

In accordance with section 732(b)(3)(A) of the Act, and 19 CFR 351.202(f), copies of the public version of the petitions have been provided to the Governments of Indonesia and the PRC via IA ACCESS. Because of the particularly large number of producers/exporters identified in the petitions, the Department considers the service of the public versions of the petitions to the foreign producers/exporters to be satisfied by the provision of the public versions of the petitions to the Governments of Indonesia and the PRC, consistent with 19 CFR 351.203(c)(2).

ITC Notification

We have notified the ITC of our initiation, as required by section 732(d) of the Act.

Preliminary Determinations by the ITC

The ITC will preliminarily determine, within 45 days after the date on which the Petitions were filed, whether there is a reasonable indication that imports of MSG from Indonesia and the PRC are materially injuring, or threatening material injury to, a U.S. industry. A negative ITC determination for any country will result in the termination of the investigation with respect to that country; otherwise, these investigations will proceed according to statutory and regulatory time limits.

Submission of Factual Information

On April 10, 2013, the Department published Definition of Factual Information and Time Limits for Submission of Factual Information: Final Rule, 78 FR 21246 (April 10, 2013), which modified two regulations related to AD and CVD proceedings: (1) The definition of factual information (19 CFR 351.102(b)(21)), and (2) the time limits for the submission of factual information (19 CFR 351.301). The final rule identifies five categories of factual information in 19 CFR 351.102(b)(21), which are summarized as follows: (i) Evidence submitted in response to questionnaires; (ii) evidence submitted in support of allegations; (iii) publicly available information to value factors under 19 CFR 351.408(c) or to measure the adequacy of remuneration under 19 CFR 351.511(a)(2); (iv) evidence placed on the record by the Department; and (v) evidence other than factual information described in (i)-(iv). The final rule requires any party, when submitting factual information, to specify under which subsection of 19 CFR 351.102(b)(21) the information is being submitted and, if the information is submitted to rebut, clarify, or correct factual information already on the record, to provide an explanation identifying the information already on the record that the factual information seeks to rebut, clarify, or correct. The final rule also modified 19 CFR 351.301 so that, rather than providing general time limits, there are specific time limits based on the type of factual information being submitted. These modifications are effective for all proceeding segments initiated on or after May 10, 2013, and thus are applicable to these investigations. Please review the final rule, available at http://enforcement.trade.gov/frn/2013/1304frn/2013-08227.txt,, prior to submitting factual information for these investigations.

Extension of Time Limits

On September 20, 2013, the Department published Extension of Time Limits, Final Rule, 78 FR 57790 (September 20, 2013), which modified one regulation related to AD and CVD proceedings regarding the extension of time limits for submissions in such proceedings (19 CFR 351.302(c)). These modifications are effective for all proceeding segments initiated on or after October 21, 2013, and thus are applicable to this investigation. Please review the final rule, available at http://www.gpo.gov/fdsys/pkg/FR-2013-09-20/html/2013-22853.htm prior to requesting an extension.

Certification Requirements

Any party submitting factual information in an AD or CVD proceeding must certify to the accuracy and completeness of that information. Parties are hereby reminded that revised certification requirements are in effect for company/government officials as well as their representatives in all AD or CVD investigations or proceedings initiated on or after August 16, 2013, including these investigations. The formats for the revised certifications are provided at the end of the Final Rule. The Department intends to reject factual submissions if the submitting party does not comply with the revised certification requirements.

Notification to Interested Parties

Interested parties must submit applications for disclosure under APO in accordance with 19 CFR 351.305. On January 22, 2008, the Department published Antidumping and Countervailing Duty Proceedings: Documents Submission Procedures; APO Procedures, 73 FR 3634 (January 22, 2008). Parties wishing to participate in these investigations should ensure that they meet the requirements of these procedures (e.g., the filing of letters of appearance as discussed at 19 CFR 351.103(d)).

This notice is issued and published pursuant to section 777(i) of the Act.

Appendix I—Scope of the Investigations

The scope of these investigations covers monosodium glutamate (“MSG”), whether or not blended or in solution with other products. Specifically, MSG that has been blended or is in solution with other product(s) is included in this scope when the resulting mix contains 15% or more of MSG by dry weight. Products with which MSG may be blended include, but are not limited to, salts, sugars, starches, maltodextrins, and various seasonings. Further, MSG is included in these investigations regardless of physical form (including, but not limited to, substrates, solutions, dry powders of any particle size, or unfinished forms such as MSG slurry), end-use application, or packaging.

MSG has a molecular formula of C₅ H₈ NO₄ Na, a Chemical Abstract Service (“CAS”) registry number of 6106-04-3, and a Unique Ingredient Identifier (“UNII”) number of W81N5U6R6U.

Merchandise covered by the scope of these investigations is currently classified in the Harmonized Tariff Schedule (“HTS”) of the United States at subheading 2922.42.10.00. Merchandise subject to the investigations may also enter under HTS subheadings 2922.42.50.00, 2103.90.72.00, 2103.90.74.00, 2103.90.78.00, 2103.90.80.00, and 2103.90.90.91. The tariff classifications, CAS registry number, and UNII number are provided for convenience and customs purposes; however, the written description of the scope is dispositive.