Importer Takes CBP to CIT for Not Referring Scope Question to Commerce in EAPA Case

CBP's failure to seek clarification from the Commerce Department on whether importer Vanguard Trading Co.'s surface products were subject to the antidumping duty order on quartz surface products from China as part of an AD evasion case was "arbitrary and capricious," Vanguard told the Court of International Trade in a Dec. 4 complaint (Vanguard Trading Co. v. United States, CIT # 23-00253).

Vanguard said its imports of mineral-based surface products are not traditional quartz slabs but a "unique mineral-based slab not subject to the order." CBP's regulations require the agency to seek clarification and suspend its Enforce and Protect Act evasion case "in such circumstances." CBP did not do this but instead "took upon itself Commerce's duty to determine whether a unique product falls within the scope of the order."

The five-count complaint also alleged CBP relied on confidential information, including tests from Customs' labs, in finding Vanguard evaded the AD order but failed to disclose this information to the importer. This conduct violates the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. U.S., in which the court said CBP violated an importer's due process rights by not providing it access to confidential information in an EAPA proceeding (see 2307270038).

Vanguard also objected to CBP's decision to start the investigation based on an "insufficient" allegation. The complaint said the facts "show that the matter in question is not a case of evasion or circumvention, but rather is a fully disclosed and open dispute as to the classification and scope of an antidumping and countervailing duty order." An EAPA decision "in the absence of even a colorable allegation [of] evasion or circumvention, is not permitted under the statute."