Importer Agrees With CBP 'No Evasion' Remand Results but Not With Its Reasoning

A CBP remand determination that importer Diamond Tools Technology didn't evade antidumping and countervailing duty orders on diamond sawblades from China is correct, although the agency continues to err in its underlying explanations, the company said in its April 17 remand comments at the Court of International Trade. CBP admitted under protest that Diamond Tools didn't make a "material and false statement" in its March remand results (see 2303200072) but the importer argued that CBP still misinterprets the Enforce and Protect Act statute and misunderstands its authority (Diamond Tools Technology v. United States, CIT # 20-00060).

CBP misconstrued the EAPA statute to be one of strict liability and its interpretation was "inconsistent with the plain meaning of 'evasion,'" Diamond Tools said. The court correctly ruled that the statute relies on more than incorrect statements, but requires the intent of evasion by an importer, hence the exception for clerical errors, the importer argued. None of CBP's arguments in its second redetermination address the court's finding that CBP must establish some level of culpability in an evasion finding.

The culpability requirement isn't "unduly burdensome" as CBP claimed. Diamond Tools argued that the "adequate notice" standard for informing importers of potentially covered merchandise is well established and not difficult to implement for CBP. The culpability requirement won't prevent CBP from taking "swift action" because CBP has the authority to impose interim measures. Those measures are not hindered by the "false statement or material omission" requirements for an evasion finding, Diamond Tools argued.

The Diamond Sawblades Manufacturers' Coalition said that it agreed with CBP’s reasoning, in its own remand comments, filed the same day. The agency "should have adopted the reasoning that it present[ed] under objection," DSMC said. The redetermination of no evasion was due to a misunderstanding of the remand order and an EAPA violation indeed occurred via false statements by Diamond Tools, DSMC said.

CBP believed incorrectly that its finding of no false statements and its negative evasion determination "were strictly required by the Second CIT Remand Order," despite established case law, DSMC said. CIT cannot require or direct agencies to reach any specific conclusion but "CBP indicated that it acted under the belief that it was required to reach certain conclusions pursuant to its reading of the Second CIT Remand Order," DSMC said.