CBP Wants Another Look at ADD/CVD Evasion Decision Over MAC Bricks

CBP wants the Court of International Trade to grant its voluntary remand request to reconsider its final determination in an antidumping and countervailing duty evasion case. The U.S. said the remand would allow CBP to consider the issues raised by plaintiff Fedmet Resources, including scope-related and due process arguments. Fedmet signed off on the remand request while the defendant-intervenor Magnesia Carbon Bricks Fair Trade Committee didn't directly oppose it.

CBP said on remand it would be allowed to review the administrative record and provide public versions of certain confidential documents discussed in Fedmet's briefs, potentially alleviating one of the plaintiff's due process concerns by also giving it a chance to provide rebuttal information (Fedmet Resources Corp. v. United States, CIT #21-00248).

Fedmet is challenging CBP's determination from an Enforce and Protect Act investigation into whether its magnesia alumina carbon bricks (MACB) evaded AD/CV duties on magnesia carbon brick (MCB) from China. According to Fedmet, the allegations of evasion stem from a Commerce Department scope ruling requested in July 2009 wherein, despite evidence from the original petition that MACBs were expressly meant to be excluded from the orders, Commerce still found MACB in scope. This U.S. Court of Appeals for the Federal Circuit, which relied on the evidence from the petition, reversed this ruling. Fedmet then faced an evasion allegation from the Magnesia Carbon Brick Fair Trade Committee, which said that Fedmet evaded the ADD/CVD orders on MCB by misclassifying its imports as MACB.

CBP took up the investigation after conducting lab tests of Fedmet's bricks from its Ohio warehouse. According to Fedmet's original complaint, the company "received no notice of either the EAPA allegation or the initiation of an investigation for another three months" (see 2105240042). Fedmet also took issue with how CBP came to the determination that its MACBs were actually MCBs (see 2111240060).

The customs agency now wants a shot at taking another look at these issues. "In particular, remand would allow CBP to consider Fedmet’s arguments related to the scope of the AD/CVD orders at issue and the chemical composition of its products, and to consider Fedmet’s due process arguments to the extent those arguments are not obviated by the remand," the brief said.

"Remand will allow CBP to provide the parties with an opportunity to provide rebuttal evidence and comment on any information not previously provided. The remand proceeding will also allow CBP to review its evasion determination in light of any new information that the parties may place on the record in response to the public versions of confidential documents."

While not directly opposing the bid for voluntary remand, the Magnesia Carbon Bricks Fair Trade Committee wants any new information placed on the record during the remand to be subject to the terms of the protective order issued in the case and requests that all filings entered during the remand with confidential information be served on authorized counsel for the private litigants subject to the protective order. CBP objected to these terms since the protective order "cannot govern the agency’s administrative proceedings conducted on remand."