CBP Says Importer Did Not Evade Diamond Sawblades AD/CVD on Remand at CIT, Notes Disagreement
Importer Diamond Tools Technology did not make a "material and false statement" and so did not evade the antidumping and countervailing duty orders on diamond sawblades from China via Thailand, CBP said in remand results filed under protest with the Court of International Trade. CBP said it made its finding to bring the proceeding in line with the trade court's remand order, which said that DTT's "failure to declare" its pre-Dec. 1, 2017, imports as subject to the AD order was not a material and false statement under the Enforce and Protect Act (Diamond Tools Tech. v. Unied States, CIT # 20-00060).
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The trade court previously held that the pre-Dec. 1, 2017, entries were consistent with the Commerce Department's past interpretation of the AD order's scope, which was articulated in a 2006 issues and decision memorandum (see 2212190049). This memo said that Commerce finds a diamond sawblade's country of origin to be the place where the segments and cores are attached to create finished diamond sawblades. CIT said there was no doubt as to the meaning of the scope at this time.
CBP acquiesed on remand, finding under protest that "DTT did not make false statements, and thus its actions do not constitute evasion under EAPA." The importer's sawblades were assembled in Thailand, where the company joined Chinese-origin cores and Chinese-origin segments.
The scope changed when Commerce issued a scope ruling during the EAPA investigation, which said that DTT's sawblades made using Chinese cores and segments but assembled in Thailand were subject to the orders but that the sawblades using Thai cores and segments were not. The trade court said that the entries made before Dec. 1, 2017, weren't evading the AD order since the company was "acting under the country of origin methodology effective at the time of the entry."
CBP, however, "respectfully disagrees with the Court's interpretation" of the 2006 memo, declaring that the document "is of little importance" in this case. "Commerce is clear that, in 2006, it conducted a substantial transformation analysis to determine the country of origin of diamond sawblades, which, as Commerce pointed out, is different from the analysis required to determine whether the product is circumventing the AD Order," the brief said. The question in 2006 was different from the one in 2019, which was whether the importer's merchandise was covered by means of circumvention, CBP said.
The EAPA statute "does not require CBP to analyze or consider an importer's state of mind to determine whether false statements were made," CBP added. "Imposing such a requirement on CBP is inconsistent with the plain language of the definition of 'evasion' as provided in the statute, the investigation procedure outlined in EAPA, and the Congressional intent outlined in the legislative history of EAPA."