CSBW Fittings Importer Blasts EAPA Due Process Violations in Motion for Judgment
CBP deprived Norca Industrial Company of its due process rights and engaged in "unlawful speculation" when finding that Norca evaded antidumping duties, the company said in its motion for judgment at the Court of International Trade. Another in a long line of importers to challenge the constitutionality of the Enforce and Protect Act process, Norca argued that CBP failed to grant it proper access to the record evidence during the investigation and based its determination on allegations of document discrepancies that the agency never gave the importer a chance to explain (Norca Industrial Company, LLC et al. v. U.S., CIT #21-00192).
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Allied Group, a competing importer, according to Norca, first lodged a complaint with CBP that Norca was evading the antidumping duty order on certain carbon steel butt-weld pipe fittings from China through transshipments in Vietnam, even though Allied was previously found to have evaded the order themselves. Norca countered that its CSBW fittings were legitimately made in Vietnam. Nevertheless, CBP conducted its investigation and held that the duties were being evaded.
Throughout the process, Norca was denied the right to view the confidential information on the record, it said. "Norca’s counsel only now had the opportunity to view the confidential version of the administrative record, thus depriving Norca of the opportunity to rebut the allegations against Norca and the evidence on which CBP based its determination," the motion said.
CBP also based its finding on adverse inferences -- a position that can only be taken should the respondents fail to cooperate, Norca argued. In particular, the agency said that adverse inferences could be used due to document discrepancies. "Both [other respondent] BW Fittings’ and Norca’s cooperation with CBP during the investigation confirm that both parties would have clarified any points on which CBP had questions," the importer said. "Rather than seeking clarification, as it had done elsewhere, CBP instead drew unsupported adverse assumptions about BW Fittings’ and Norca’s responses without giving BW Fittings and Norca a chance to address."
One such inconsistency that CBP relied on for its finding stemmed from sales contracts between BW Fittings and Norca, which held fine print permitting transshipments "To Be Allowed." However, CBP never asked for any clarification nor backed up that this finding precipitated transshipments, Norca said. "The provision merely addresses permissible routing of Vietnamese origin finished CSBW fittings from BW Fittings to Norca; namely, Norca accepts that the container of finished CSBW fittings from BW Fittings may ship directly from the Vietnam port of loading to the port of discharge or indirectly from the port of loading to the port of discharge via a transshipment port," the motion said. "There is nothing nefarious about such a standard shipping line term being present in a sales contract involving container shipment via ocean transit."
CBP also drew an adverse inference against the two respondents since the agency found inconsistencies between equipment purchase documents, which called into question all submissions by BW Fittings, CBP said. Norca dubbed this move "particularly egregious" since CBP asked BW Fittings to provide clarifying information but did not tell BW Fittings that it identified these inconsistencies. "Norca reiterates that due process and CBP’s regulations mandated that Norca and BW Fittings be apprised of deficiencies and issues CBP identifies and provided an opportunity to remedy or explain," the motion said. "CBP did neither and the regulations now prohibit Norca from providing explanations from BW Fittings during this administrative review, thereby compounding the due process violation."