Magnesia Alumina Carbon Brick Importer Sues CBP Over Lack of Notice in EAPA Process
CBP's failure to alert Fedmet Resources of an Enforce and Protect Act investigation or to publish public summaries in the proceeding violated the company's constitutional due process rights, Fedmet said in a May 21 complaint in the Court of International Trade.
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Fedmet challenges CBP's determination from an EAPA investigation into whether its magnesia alumina carbon bricks evaded antidumping and countervailing duties on magnesia carbon bricks (MCBs) 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 MAC bricks were expressly meant to be excluded from the orders, Commerce still found MAC bricks in scope. This ruling was reversed by the U.S. Court of Appeals for the Federal Circuit, which relied on the evidence from the petition. Fedmet then faced an evasion allegation from the Magnesia Carbon Bricks Fair Trade Committee, which said that Fedmet evaded the AD/CVD orders on MCBs by misclassifying its imports as MAC bricks.
CBP took up the investigation after conducting lab tests of Fedmet's bricks from its Ohio warehouse. According to the complaint, "Fedmet received no notice of either the EAPA allegation or the initiation of an investigation for another three months." Fedmet also took issue with how CBP came to the determination that its MAC bricks were actually MCBs. "[CBP's] notice of initiation referenced chemical analysis of samples of Fedmet’s MAC bricks performed by CBP, but did not disclose to Fedmet the results of that analysis, the nature of the testing performed, or provide copies [of] the underlying laboratory report," the complaint said.
Fedmet attempted to correct CBP's understanding of its product through voluntary submissions, saying that by employing the testing methodology used by the industry, the agency would find its MAC bricks are distinct from MCBs. The importer said CBP should have conferred with Commerce to "clarify the terms of Commerce’s scope ruling on Fedmet’s Bastion MAC bricks or seek guidance on the relevance of the brand name used by Fedmet in marketing MAC bricks to U.S. customers in determining whether merchandise was within the scope of the Orders."