CBP Cannot Use Trade Patterns as Evasion Evidence, Importer Tells Trade Court
CBP cannot rely on country trade patterns as specific evidence for evasion of antidumping and countervailing duties in Enforce and Protect Act proceedings, importer Skyview Cabinets USA argued in a Nov. 29 reply brief at the Court of International Trade. CBP also erred by relying on statements from a corporate investigator, paid for by the alleger in the EAPA case, that are "inconsistent with the record." While Masterbrand tries to "downplay" facts presented by Skyview by using words such as "discrepancies, deficiencies, inconsistencies, and omissions," CBP never investigated any of these perceived discrepancies as required by law, Skyview said (Skyview Cabinet USA v. United States, CIT #22-00080).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The case involves CBP's findings in its EAPA investigation on Skyview and three other companies wherein the agency found that Skyview evaded the AD/CVD orders on wooden cabinets and vanities from China by way of transshipment through Malaysia. The allegers in the case pointed to "aggregate, coincidental trade data" between these two countries as evidence. Skyview responded that "[s]imply put, the aggregate data does not specifically link ... wooden cabinets and vanities" from China to Malaysia to Skyview.
The allegers also relied on a Masterbrand's corporate investigator, who made major statements "without seemingly setting foot inside" Malaysian manufacturer Rowenda Kitchen's production facility, Skyview said. The investigator also tried to invalidate the evidence on the record. "Both respondents attempt to downplay / minimize facts presented by Skyview to claim unreliable / uncredible / make irrelevant facts with such language as using discrepancies, deficiencies, inconsistencies, and omissions," the brief said. "However, while it is true that Skyview 'connected the dots' concerning production records, CBP failed to investigate any perceived discrepancies, deficiencies, inconsistencies, and omissions as required by law ... . Moreover, any perceived discrepancies, deficiencies, inconsistencies, and omissions were not fatal."
Skyview also has argued that CBP illegally made a country of origin finding without conferring with the Commerce Department. In its reply, Masterbrand had said the claim is baseless and misconstrues the statute (see 2210050042). The statute, 19 U.S.C. 1517(b)(4)(A), says that "If the Commissioner receives an [EAPA] allegation ... and is unable to determine whether the merchandise at issue is covered merchandise, the Commissioner shall -- (i) refer the matter to [Commerce] to determine whether the merchandise is covered merchandise ... ." Masterbrand said that since CBP was able to find that the merchandise at issue was covered by the orders, no referral was needed.
Skyview argued in its brief that there were conflicting facts on the record and that "production records and the like to meet evidence requirements are not defined by the statute." Given this, "the second instance should have been appealed to Commerce," the importer said. "Instead, CBP stated that 'no production records' and 'provided no production records to substantiate such claim,' an inquiry that fits squarely within 19 U.S.C. § 1517(b)(4)(A)."