CIT Not Permitted to End Proceeding Without Certainty, Electronics Importer Argues

Court of International Trade can't issue a decision in a denied protest challenge based on a finding that can't determine the proper origin, Cyber Power Systems argued in a March 30 motion for reconsideration to CIT. Cyber Power asked the court for a partial retrial or rehearing of its Feb 27 ruling, in which CIT found that Cyber Power didn’t prove a substantial transformation occurred for four models of its uninterruptable power supplies and one model of its surge voltage protector (see 2302270064) (Cyber Power Systems v. U.S., CIT # 20-00124).

Cyber Power said the court improperly attributed "evidentiary weight" to the presumption of correctness by CBP. The court's statement that it was “unable to determine whether the devices were substantially transformed in the Philippines" is not sufficient to rule that the items were not transformed, the company argued. The court never made a finding that the products were substantially transformed in China, Cyber Power said: "it merely claimed an inability to make a correct finding as to the goods’ origin in the Philippines."

The presumption of correctness given to CBP's protest determinations is "merely a device for allocating to plaintiff the initial burden of proof on contested factual issues that arise from the protested decision," Cyber Power said. The burden of proof shifted to the government after Cyber Power presented its case that the five products at issue were produced in the Philippines and that the government did not produce evidence that the products were instead of Chinese origin, Cyber Power said. The court's decision to rule in favor of the government despite the court's inability to determine origin incorrectly assumed CBP was correct, Cyber Power said.

Because the court is effectively mandated to use its power to ensure it has all available information in order to arrive at the correct conclusion, it must take appropriate action to obtain that information, Cyber Power said. The retrial or rehearing would allow the court to address "unanswered questions," particularly from Cyber Power witness Ti-Ching "Tim" Huang, who was deposed by Cyber Power but not questioned by the court, Cyber Power said.