CBP Used 'Unrelated' Lab Tests to Reach Evasion Determination, Importer Says
An importer on June 20 accused CBP of placing “wholly unrelated” lab tests on the record to support an evasion decision and illegally refusing to consider the scope ruling that importer sought from the Commerce Department. As a result, it said, the CBP’s final determination was unlawful (Vanguard Trading Co. v. U.S., CIT # 23-00253).
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In its motion for judgment, importer Vanguard Trading Co. again said CBP wrongly found its mineral-based countertops from China to be covered by an antidumping duty order on Chinese quartz countertops. Vanguard, found by CBP to be circumventing the order, filed its complaint in the matter in December (see 2312050025).
The agency shouldn’t even have initiated its circumvention investigation, Vanguard said. It said the Enforce and Protect Act “was never intended to be used to investigate and punish importers with a legitimate dispute as to classification and who otherwise provided full and complete information.”
This was a factual question that, as “expressly” stated by statute, should have gone to Commerce first, Vanguard said.
Investigation respondents aren't required to request CBP seek advice from Commerce, but Vanguard did so multiple times throughout the proceeding, it said. Eventually, it requested a scope ruling from the department, but CBP still refused to put any information on the record about the ruling “beyond permitting a bare allegation that a scope ruling request had been filed,” it said.
The EAPA, Vanguard said, specifically states that “If the Commissioner [of CBP] receives an [evasion] allegation under paragraph (2) and is unable to determine whether the merchandise at issue is covered merchandise, the Commissioner shall … refer the matter to the administering authorityy to determine whether the merchandise is covered merchandise.”
“As clearly stated, CBP is required to seek this advice where, as here, there is a legitimate dispute as to scope,” the importer said.
CBP determined that the countertops were in scope after conducting two lab tests, Vanguard said. But CBP only placed on the record two lab tests that were “inapplicable and also directly contradictory” to its final determination of evasion, it said. It noted it hadn’t been able to see the flawed confidential version of the lab tests until it had already applied to the Court of International Trade, as the Royal Brush decision (see 2307270038) hadn’t yet been released and “the public versions appeared to be applicable and germane to the analysis.”
Both tests name another company, not Vanguard, as an importer of their samples, and neither correctly identify Vanguard’s manufacturer, the importer said. It noted that one of them also gets the sample’s country of origin wrong.
Vanguard said its own test shows that it is not primarily made of quartz, as the agency claims. In response, “CBP falls back on … the initial description of the goods in Vanguard’s patent,” it said.
“However, the patent is, in fact, a theoretical discussion of the material,” it said, “and between the issuance of the patent, which does not have fixed material specifications, and the production of the goods, the formulation could have changed to ensure that the goods were outside of the scope of the order.”
It said it believes Commerce wouln’t have found its goods fall within the scope of the relevant order.
Notably, the department did release a scope ruling for Vanguard in January in which it sided with CBP; it found, based on a patent description, that the importer’s recycled mineral countertops were covered by both an AD order and a countervailing duty order on quartz countertops from China (see 2401310076). The importer filed its complaint in December. Vanguard’s motion for judgment didn’t clarify whether this scope ruling was the one it sought in relation to the present matter.