EAPA Petitioner Backs CBP's Right to Make Scope Finding Over Steel Grating at CIT
The Court of International Trade should uphold CBP's finding that importers Ikadan System USA and Weihai Gaosai Metal Product Co. evaded the antidumping and countervailing duty orders on steel grating from China, defendant-intervenor Hog Slat argued in a Jan. 20 reply brief at CIT. The trade court must reject the plaintiff's arguments that their tribar flooring imports are not under the scope of the orders since CBP's covered merchandise finding "reflected the typical analysis undertaken by Commerce with respect to questions of scope which, although not required of CBP, demonstrates the analytical reasonableness of CBP's approach," the brief said (Ikadan System USA v. United States, CIT #21-00592).
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In the EAPA case, CBP found Ikadan and Gaosai guilty of evading the AD/CVD orders on steel grating from China by transshipping their grates through South Korea and misclassifying the entries. Both Ikadan and Gaosai filed scope requests with the Commerce Department on the merchandise, with Ikadan's concerning ductile cast iron flooring for pig farrowing crates and Gaosai's dealing with pig farrowing crates and farrowing flooring systems.
In its scope ruling, Commerce looked at three different products: "(1) a farrowing floor system that is partly made of a galvanized steel tribar truss floor and partly made of a ductile cast-iron floor; (2) a pig farrowing crate with the farrowing floor system described in item (1); and (3) a pig farrowing crate without flooring." Commerce found that the tribar truss floors are subject to the orders "despite their inclusion with other farrowing crate and / or flooring system components." CBP relied on this finding to back its determination the tribar flooring part of the farrowing crates and flooring systems is within the scope of the orders.
The plaintiffs largely went after CBP's finding in the EAPA case that the goods are covered by AD/CVD, arguing that CBP is not authorized under the EAPA statute to find whether a good is covered by the orders and that the scope finding itself was lawful (see 2211070041). Defending CBP's position, Hog Slat said in reply that these "arguments must be rejected." The plaintiffs claim that since there is no specific provision instructing CBP how to interpret the orders' scope in EAPA cases, CBP is not allowed at all to make covered merchandise findings. "This interpretation of the EAPA statute must fail," the brief said.
"With respect to determinations concerning covered merchandise, the EAPA statute provides CBP with two different avenues -- either CBP can itself reach a determination concerning whether the product(s) at issue are covered merchandise or CBP can refer the question to Commerce. ... Accordingly, the EAPA statute provides CBP with express authority to make covered merchandise determinations and to defer to Commerce where it is 'unable' to make such determinations. The only limitation on CBP’s covered merchandise determinations (since they are integral to a finding of evasion) is that they must be based on substantial evidence."