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Quiedan Co. v. United States, Rebar Trade Action Coalition

United States Court of Appeals, Federal Circuit

July 2, 2019

QUIEDAN COMPANY, Plaintiff-Appellant
v.
UNITED STATES, REBAR TRADE ACTION COALITION, Defendants-Appellees

          Appeal from the United States Court of International Trade in No. 1:16-cv-00275-JCG, Judge Jennifer Choe-Groves.

          Kavita Mohan, Grunfeld, Desiderio, Lebowitz, Silver-man & Klestadt LLP, Washington, DC, argued for plaintiff-appellant. Also represented by Jordan Charles Kahn, Andrew Thomas Schutz; Ned H. Marshak, New York, NY.

          Tara K. Hogan, Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by Margaret Jantzen, Joseph H. Hunt, Jeanne Davidson, Loren Misha Preheim; Christopher Hyner, Brendan Saslow, United States Department of Commerce, Washington, DC.

          John R. Shane, Wiley Rein, LLP, Washington, DC, argued for defendant-appellee Rebar Trade Action Coalition. Also represented by Alan H. Price, Jeffrey Owen Frank, Maureen E. Thorson.

          Before Reyna, Wallach, and Taranto, Circuit Judges.

          TARANTO, 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 liquidation for Quiedan's stakes. Because the Court of International 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 antidumping 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 Belarus, 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: Continuation of Antidumping Duty Orders, 72 Fed. Reg. 44, 830 (Aug. 9, 2007) (Continuation). Under the antidumping duty order (ADD Order), i.e., the Rebar Order as modified 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 further 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 considered whether the merchandise is within the ADD Order'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 petition, 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 analysis based on those considerations answers the scope question, 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) (describing process of cash deposits and suspension of entries under an antidumping duty order pending administrative 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 suspension, 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 International 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 instructions 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 jurisdiction 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 "unsupported 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 instructions 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 ...


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