CBP Did Not Need to Refer to Commerce for COO Finding, EAPA Petitioner Argues

CBP did not violate the law by refusing to make a referral to the Commerce Department on a question of country of origin since CBP was "fully able to determine" that the wooden cabinets and vanities at issue in an Enforce and Protect Act investigation were covered by the relevant orders, petitioner Masterbrand Cabinets argued in an Oct. 4 reply brief at the Court of International Trade (Skyview Cabinet USA v. United States, CIT #22-00080).

The case involves CBP's findings in its EAPA investigation on Skyview and three other companies where the agency found that Skyview evaded the antidumping and countervailing duty orders on wooden cabinets and vanities from China. In the case at CIT, Skyview argued that CBP improperly made a COO finding "without conferring with Commerce." In its reply, Masterbrand said that the claim is "baseless and misconstrues the statute."

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.

"It was abundantly clear from the record that the merchandise under investigation was WCV of a type that fit the physical description of subject merchandise in the AD/CVD orders on Wooden Cabinets and Vanities," the brief said. "[Skyview] argues not that CBP was unable to determine whether the products ... [at] issue were WCV, but that CBP was unable to determine whether the products were of Chinese origin or Malaysian origin."

Elsewhere in the brief, Masterbrand said that CBP did not illegally rely on "disallowed hearsay" as Skyview claims in making its evasion finding. The importer said CBP improperly relied on an affidavit and business confidential statements made by a corporate investigator which amount to hearsay. In its reply, Masterbrand said that the U.S. Court of Appeals for the Federal Circuit has explicitly ruled that hearsay evidence can be used in administrative proceedings even without corroboration if, "to a reasonable mind, the circumstances are such as to lend it credence."

"Skyview's claim that the foreign investigator report submitted by MasterBrand is 'certainly disallowed hearsay and should [be] removed from the Administrative Record and not be considered by CBP' is baseless," the petitioner said. "Skyview has no legitimate claim that the report, accompanied by a sworn affidavit, was not relevant or reliable. CBP reasonably found the report probative and properly relied on it, in part, in making its final determination of evasion."