Fedmet Opposes Stay Request in EAPA Evasion Case

A CBP stay request in a lawsuit challenging an Enforce and Protect Act evasion determination while the agency seeks a covered merchandise referral from Commerce amounts to a delay tactic to extend enforcement in a losing action, Fedmet said in a May 18 motion asking the Court of International Trade to deny the stay (Fedmet Resources Corporation v. United States, CIT #21-00248).

"The purpose of [the referral] provision is to assist CBP in making a lawful determination of whether evasion has occurred, not to provide CBP with an avenue for extending the enforcement of an affirmative evasion determination that it finds itself unable to defend on appeal," Fedmet said.

The case concerns Fedmet Resources's challenge of a 2020 EAPA determination, in which CBP found that Fedmet had evaded the antidumping duty and countervailing duty orders on magnesia alumina carbon bricks from China. On April 27, CBP requested a stay to seek a covered merchandise referral from Commerce because it says that it is unable to determine whether the bricks it tested are covered merchandise (see 2204270072).

Fedmet argues that staying the case would be prejudicial and that the CBP stay "amounts to a request for an extension of between 200 and 350 days of the current due date ... on top of the 120 days already provided by the Court in its remand order" (see 2201060035).

Because CBP’s Trade Remedy Law Enforcement Directorate imposed interim measures on May 6, 2020, Fedmet has been "effectively barred from importing MAC bricks into the U.S.," Fedmet's motion said. The combined AD/CVD cash deposit rate on subject MCBs is over 260%, which makes it "commercially impossible for Fedmet to import MAC bricks from China into the U.S." while the EAPA proceeding and the appeal are pending. Fedmet says that it has already been "effectively barred from importing the merchandise at issue in this action for more than two years ... which has caused and continues to cause, significant damage to Fedmet’s business."