Commerce Illegally Expanded Scope of Artist Canvas Order, Importer Says

The Commerce Department has been illegally expanding the reach of an antidumping duty order on artist canvas from China over years of scope rulings for different parties, a textile company argued in a Feb. 26 motion for judgment filed with the Court of International Trade (Printing Textiles d/b/a/ Berger Textiles v. U.S., CIT # 23-00192).

Commerce failed to consider the intent of petitioners who had originally proposed the language of the scope order when it found importer Printing Textiles’ canvas banner matisse from China was subject to the order (see 2309180030) while ignoring the order’s requirement that a subject product be “primed/coated” to promote “the adherence of artistic materials” to its surface, Printing Textiles said.

The history and scope of the AD order, including statements by the order’s petitioner, describe canvases as being able to have two different types of coats: a “bottom coat” that specifically “promotes adherence of artistic materials” and a “top coat” that is only “ink-receptive,” it said.

Its own canvases are coated on one side, Printing Textiles admitted. But it said that coating was not the bottom coat described by the order because it has “hydrophobic sealing and fireproof agents” and it “does not promote the adherence of artistic materials”; the latter point was even confirmed by two experts it hired, the importer said.

But over the course of several scope rulings, the importer said Commerce has begun to expand the scope by describing its bottom coat requirement -- the coating added to a canvas to “promote adherence of artistic materials” -- using phrases that describe top coats or other coats, such as “be receptive to application of paint or other materials,” “allow for acceptance of artistic materials,” “aid application of graphical media” and even “[convert] a fabric into a canvas … [by] giving it the stiffness properties of a canvas.”

“In its efforts to avoid a nullity in the language of the Order, Commerce has instead unlawfully created totally new physical characteristic requirements in which every conceivable coated fabric is within the scope of the Order which has created absurd results,” it said.

The department even acknowledged that it had ruled differently in a similar, earlier case, as it found then that a coating intended to provide for heat or water resistance rather than ”promote adherence” of artistry did not make a product subject to the order, Printing Textiles said.

But Commerce said that the International Trade Commission and prior scope rulings “have not interpreted ‘adherence’ so narrowly,” citing ITC’s definition of artists’ canvas in which “the focus is notably on preparing the fabric ‘to accept’ paints or inks and on creating ‘a surface for the graphic presentation of painted or printed images.” “To accept” was broader than “to promote,” the importer said.

This went against Commerce’s own requirement to rely solely on the language of the scope ruling itself, Printing Textiles said.

“Commerce unlawfully relied on a single sentence in the U.S. International Trade Commission’s ('ITC') final publication in the Views of the Commission section to justify its scope creep,” it said.

Printing Textiles also said the order itself is “void for vagueness and unconstitutional,” although it made no arguments on that point.