Magnet Petitioner Says Importer’s Goods Can Be Bent, Are Not ‘Functionally Inflexible'
A petitioner replied March 18 to opposition to its appeal of a Court of International Trade decision that an importer’s plastic shelf dividers weren't covered by antidumping and countervailing duty orders on raw flexible magnets from China (see 2309260049). It said that the plain text of the orders didn't exclude “functionally inflexible” magnets and that the dividers couldn't be “rigid” because they were “capable of being bent” (Magnum Magnetics Corp. v. U.S., Fed. Cir. # 24-1164).
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The petitioner, Magnum Magnetics, complained that the appellees’ briefs both called Fasteners for Retail’s magnets “rigid” and “also admit that the product is capable of being bent or twisted.” It also said that videos of the importer’s goods indicate they have “extreme flexion.” And “both Commerce and” the importer, Fasteners for Retail, recognize that the products are flexible and simply “retreat to the position that the products are ‘functionally inflexible’ because they are incapable of being bent without being marred.”
“There is nothing in the Orders, however, defining the scope in terms of how ultimate users of covered merchandise will use (or abuse) the merchandise,” Magnum said.
The importer asked how much flexibility is "necessary for a flexible magnet bonded to plastic or other material to be in scope" under Commrece’s criteria: “If a flexible magnet bonded to another material can be bent to a 90° angle without ‘breaking,’ would it be considered ‘functionally flexible’? What about a 45° angle?”
Magnum also argued again that, even if the magnets were rigid, the AD/CVD orders didn't exclude flexible magnets bonded to rigid materials (see 2401190070). Commerce’s determination wrongly relied on (k)(1) factors over the plain language of the scopes, it said.
“This Court long has emphasized the primacy of the text of antidumping and countervailing duty orders in scope proceedings,” it said.
In their response briefs to Magnum Magnetics’ appeals (see 2402290051), the U.S. and the importer failed "to address the actual text of the” scope orders, Magnum said.
Instead, the appellees’ briefs wrongly focused on the Commerce Department’s “supposed” discretion to consult k(1) sources at will, Magnum said, although neither appellee identified what terms in the orders Commerce used the k(1) sources to interpret.
The AD/CVD orders “expressly provide that flexible magnets remain subject to the Orders if bonded to any material of any composition,” Magnum said.
It said that a “flexible magnet” is a term of art. The orders define a magnet as such by “the presence of flexible binders” rather than “its relative flexion,” a “critical distinction” that the appellees ignored, it said.
“Simply put, there is no ‘functionally inflexible’ limitation in the scope language,” Magnum said.