Appeals from the United States Court of International Trade
in No. 1:13-cv-00270-JCG, Judge Jennifer Choe-Groves.
Marshak, Grunfeld, Desiderio, Lebowitz, Sil-verman &
Klestadt LLP, New York, NY, argued for
plaintiff-cross-appellant. Also represented by Edward B.
Ackerman; Kavita Mohan, Andrew Thomas Schutz, Washington, DC.
Michael D. Snyder, Commercial Litigation Branch, Civil
Division, United States Department of Justice, Washington,
DC, argued for defendant-appellant. Also represented by
Robert Edward Kirschman, Jr., Patricia M. McCarthy, Joseph H.
Hunt; Jessica DiPietro, Nanda Srikantaiah, Office of Chief
Counsel for Trade Enforcement and Compliance, United States
Department of Commerce, Washington, DC.
Moore, Reyna, and Stoll, Circuit Judges.
United States Department of Commerce appeals the United
States Court of International Trade's determination that
Commerce lacks authority to retroactively suspend liquidation
of helical spring lock washers entered on or after the
issuance date of an antidumping duty order. United Steel and
Fasteners, Inc., an importer of the helical spring lock
washers under investigation, cross-appeals the Court of
International Trade's affirmance of Commerce's
determination that its washers are within the scope of the
antidumping duty order. Because we conclude that
Commerce's retroactivity determination was improper and
substantial evidence supports Commerce's scope ruling, we
Assembly Components Division of Illinois Tool Works Inc.
("Shakeproof") is a U.S. domestic producer of lock
washers. In 1992, Shakeproof filed a petition (the
"Petition") for the imposition of antidumping
duties on imports of certain helical spring lock washers from
China. After examining the Petition, Commerce initiated an
antidumping investigation. Commerce determined that imports
of certain helical spring lock washers from China were being
sold at less than fair value, and on October 19, 1993, it
issued the antidumping duty order at issue in this appeal.
See Certain Helical Spring Lock Washers From the
People's Republic of China, 58 Fed. Reg. 53, 914
(Dep't of Commerce Oct. 19, 1993), as amended,
58 Fed. Reg. 61, 859 (Dep't of Commerce Nov. 23, 1993)
("ADD Order"). Commerce's ADD
Order describes the subject merchandise as follows:
[C]ertain helical spring lock washers (HSLWs) are circular
washers of carbon steel, of carbon alloy steel, or of
stainless steel, heat-treated or non heat-treated, plated or
non-plated, with ends that are off-line. HSLWs are designed
to: (1) Function as a spring to compensate for developed
looseness between the component parts of a fastened assembly;
(2) distribute the load over a larger area for screws or
bolts; and (3) provide a hardened bearing surface. The scope
does not include internal or external tooth washers, nor does
it include spring lock washers made of other metals, such as
copper. The lock washers subject to this investigation are
currently classifiable under subheading 7318.21.0000 of the
Harmonized Tariff Schedule of the United States (HTSUS).
ADD Order, 58 Fed. Reg. at 53, 914-15.
Steel and Fasteners, Inc., ("US&F") is a U.S.
importer of lock washers that meet the specifications of the
American Railway Engineering and Maintenance-of-Way
Association ("AREMA"). US&F imports the washers
under HTSUS subheading 7318.21.0090, without declaring them
subject to the ADD Order.
April 9, 2013, US&F requested an official scope ruling
from the United States Department of Commerce
("Commerce") pursuant to 19 C.F.R. §
351.225(c). In its request, US&F alleged that its washers
were not covered by the ADD Order. US&F
explained that United States Customs and Border Protection
("CBP") was "aware of the HTSUS clarification
being utilized by US&F," and that "[a]fter
reviewing US&F's response to a CBP Notice of Proposed
Action, CBP is allowing USF to continue making entry under
heading 7318.21.0090 with the understanding that this scope
determination was being readied and shortly
filed." J.A. 70.
8, 2013, without initiating a scope inquiry, Commerce issued
a final scope ruling that US&F's washers are within
the scope of the ADD Order based on the factors
listed in 19 C.F.R. § 351.225(k)(1). Commerce also
instructed CBP to suspend liquidation of "all
unliquidated entries of merchandise made on or after the
first day merchandise subject to the [ADD] Order was
suspended for antidumping purposes and collect cash deposits
on all such entries." J.A. 396. Liquidation was
suspended to October 19, 1993, the date the ADD
Order was issued and the first day CBP originally
suspended liquidation of merchandise subject to this order.
US&F appealed Commerce's scope ruling and its
instructions to retroactively suspend liquidation to the
United States Court of International Trade ("CIT").
United Steel & Fasteners, Inc. v. United States,
203 F.Supp.3d 1235, 1241 (Ct. Int'l Trade 2017).
affirmed Commerce's scope ruling and reversed and
remanded Commerce's retroactivity determination.
Id. at 1247-48. The CIT determined that Commerce
exceeded its regulatory authority by ordering retroactive
suspension of liquidation back to 1993 and ordered that
Commerce draft new suspension of liquidation instructions.
Id. at 1248, 1255. On remand, Commerce issued new
instructions to suspend liquidation on or after July 8, 2013,
the date when Commerce issued the final scope ruling