Importer Tells CAFC AD Order on Artist Canvas Should Be Void for Vagueness
The Commerce Department's antidumping duty order on artist canvas from China is "void-for-vagueness and unconstitutional," importer Printing Textiles, doing business as Berger Textiles, told the U.S. Court of Appeals for the Federal Circuit in its opening brief. The company argued that Commerce's "impermissibly unlawful" scope ruling including its canvas banner matisse within the scope of the order "denied Berger adequate notice," adding that the agency "failed to address due process concerns of vague language in the scope of the order" (Printing Textiles v. United States, Fed. Cir. # 25-1213).
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The Court of International Trade previously sustained the scope ruling, finding that Commerce's interpretation of one sentence of the order's scope that is ambiguous "was not per se unreasonable" (see 2410090022).
The AD order covers artist canvases, generally described as "tightly woven prepared painting and/or printing services." Looking at the scope language, the trade court said the following sentence is ambiguous: "Priming/coating includes the application of a solution, designed to promote the adherence of artist materials, such as paint or ink, to the fabric."
The court said the word "includes" is ambiguous as to whether "priming/coating" must be designed to promote the adherence of artist materials for a canvas to be included in the order. CIT added that this sentence, when read n light of the whole scope language, isn't enough to render the entire scope "unconstitutionally vague."
On appeal, Berger invoked the "void-for-vagueness doctrine," which says a law that regulates conduct is "arbitrary if it does not provide the public with 'a reasonable opportunity to know what is prohibited,' and 'provide explicit standards for those who apply them.'"
The company said it's "one thing to expect regulated parties to conform their conduct to an agency's interpretations once the agency announces them; it is quite another to require regulated parties to divine the agency's interpretations in advance or else be held liable when the agency announces its interpretations for the first time in an enforcement proceeding and demands deference.”
The brief said that Commerce's interpretations of the order "raise serious due process concerns because such vague and open-ended language has caused absurd results in antidumping [duties] being imposed on importers without adequate notice." Vagueness concerns weren't resolved by the scope ruling procedure, the company claimed, adding that the agency's interpretation of the order went beyond the limits of a (k)(1) analysis and frustrated "fair/reasonable notice/warning," leading to an order that is "void-for-vagueness."