CBP Failed to Properly Analyze Record on Remand in Steel Grating EAPA Case, Importers Tell CIT
CBP did not do what it told the Court of International Trade it was going to do on remand in an Enforce and Protect Act case, plaintiffs Ikadan System USA and Weihai Gaosai Metal Product Co. argued in Nov. 4 comments on CBP's remand. The agency told the court it would consider the Commerce Department's scope ruling, which found that Ikadan and Gaosai's imports are within the scope of the relevant antidumping and countervailing duty orders, and clarify its decision to ensure the court is given a thorough analysis of the relevant law and evidence. Instead, CBP failed to address any of the plaintiffs' arguments on remand, the brief said (Ikadan System USA v. United States, CIT #21-00592).
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In the EAPA case, CBP found Ikadan and Gaosai guilty of evading the AD/CVD orders on steel grating from China by transshipping their grates through South Korea and also misclassifying the entries. Both Ikadan and Gaosai filed scope requests with the Commerce Department on the AD/CVD orders to clear things up, with Ikadan's concerning ductile cast iron flooring for pig farrowing crates and Gaosai's request dealing with pig farrowing crates and farrowing flooring systems.
In its scope ruling, Commerce looked at three different products: "(1) a farrowing floor system that is partly made of a galvanized steel tribar truss floor and partly made of a ductile cast-iron floor; (2) a pig farrowing crate with the farrowing floor system described in item (1); and (3) a pig farrowing crate without flooring." Commerce found that the tribar truss floors are subject to the orders "despite their inclusion with other farrowing crate and/or flooring system components."
CBP then asked for a voluntary remand to add the scope ruling to the record. The agency then relied on the ruling to back its determination that the tribar flooring part of the farrowing crates and flooring systems is within the scope of the orders (see 2210030076). In their reply, the plaintiffs argued that CBP did not comply with the remand order since it failed to give a relevant analysis of the scope ruling, CBP wrongly argued that its role is just ministerial in an EAPA proceeding, and that their challenge to the "covered merchandise" part of the EAPA ruling is not barred by the ability to review Commerce's scope ruling.
In its remand results, CBP said that it only plays a ministerial role in enforcing Commerce's AD/CVD-related decisions. The plaintiffs found this suspicious since CBP "vociferously asserted in its Administrative Review Determination that it did not need to consult Commerce at all in determining whether the Plaintiffs' products were covered merchandise." There is nothing in the law that requires CBP to follow Commerce's decision in an EAPA case, Ikadan and Gaosai said.
"Put simply, CBP is attempting to have it both ways -- independent enough under the EAPA statute to be able to make its own scope determinations without Commerce’s aid, yet hiding behind Commerce by insisting that it performs only a 'ministerial' role, such that it is not required to defend its scope determinations when it relies on a scope determination by Commerce in a separate proceeding," the brief said.
CBP further declined to address the plaintiff's arguments over whether their goods are covered by the AD/CVD orders in the remand period since it was not the right venue to challenge the scope ruling. The plaintiffs, though, said that CBP is wrong since they are challenging the evasion determination "and all of the consequences therefrom."