AD Petitioner Blasts Commerce's 'Made-Up Exclusions' Over Raw Flexible Magnets
The Commerce Department uses "made-up 'exclusions'" from the scope of certain antidumping and countervailing duty orders that, even if they were "otherwise permitted, which they are not," fail to find support in the authorities the agency relies on, AD petitioner Magnum Magnetics argued in a Feb. 6 motion for judgment at the Court of International Trade. The petitioner railed against Commerce's refusal to perform a (k)(3) analysis of the scope even though it relied on a single evidential element from a (k)(3) analysis in its (k)(1) analysis (Magnum Magnetics Corp. v. United States, CIT # 22-00254).
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The case concerns a Commerce scope ruling that excluded magnetic shelf dividers imported by Fasteners for Retail, doing business as Siffron, from the scope of the antidumping and countervailing duty orders on raw flexible magnets from China. After initially finding the shelf dividers fall within the scope of the orders, Commerce reversed its decision after looking to past scope rulings and the International Trade Commission report from the injury investigation to identify "silent exclusions."
The agency found that bonding raw flexible magnets with an adhesive to a plastic blade makes the plastic shelf dividers inflexible to the extent that the divider cannot be manipulated without damaging the product. The ITC said flexible magnets are permanent magnets that can be molded into any shape without losing their magnetic properties. Commerce then found the ITC's description implies that when an item with an otherwise flexible magnet cannot be manipulated without it breaking, the item can no longer be found to be "flexible." The agency equated the "detrimental effects to the appearance of Siffron’s plastic blade that result from extreme flexing of the magnetic shelf divider with the ITC’s observation that, generally, subject flexible magnets can be manipulated without losing their 'magnetic properties,'" excluding the dividers from the orders.
In its motion, Magnum Magnetics said Commerce ignored the plain language of the orders' scope, under which the agency originally found that Siffron's products are subject to the orders. "Commerce does not have license to disregard the text of the Orders or use (k)(1) factors to contradict the unambiguous language of the Orders," the brief said. "Indeed, resort to (k)(1) materials is appropriate only as interpretative guides to ambiguous language. Commerce identified no ambiguity in the language in the Orders. Nor could it. The Orders expressly cover raw flexible magnets bonded to plastic and exclude only printed magnets."