CIT Clarifies Scope Referral Requirement in EAPA Cases

Jun. 2, 2025
By: Austin J. Eighan

The U.S. Court of International Trade (CIT) confirmed that U.S. Customs and Border Protection (CBP) may independently determine whether goods fall within the scope of antidumping and countervailing duty (AD/CVD) orders in Enforce and Protect Act (EAPA) investigations without requiring a scope referral to the U.S. Department of Commerce.

Vanguard Trading Company LLC (“Vanguard”) challenged CBP’s determination that the importer evaded the AD/CVD Orders on Chinese quartz surface products, arguing: (1) the alleged misclassifications serving as the basis for the evasion finding were a matter of good-faith disagreement on the Orders’ scope, not deception; and (2) CBP was required to either make a covered merchandise referral or stay the EAPA investigation pending the results of Commerce’s scope inquiry, which Vanguard initiated to clarify whether its merchandise was within the Orders’ scope.

Vanguard reasoned its merchandise was accurately described as “artificial marble and/or artificial stone,” rather than a quartz surface product subject to the AD/CVD Orders. To verify the claim, CBP requested further information from Vanguard and its suppliers. However, CBP determined that none of the parties responded “to the best of their abilities.” The agency then applied adverse inferences to the responses’ missing details, as permitted under 19 U.S.C. § 1517(c)(3), finding that the merchandise was indeed within the Orders’ scope. CBP also determined that by improperly identifying the goods as regular consumption entries (“type 01”) instead of AD/CVD entries (“type 03”) and failing to note the relevant AD/CVD case numbers on the entry summary documentation, Vanguard evaded the Orders.

Since the scope of AD/CVD orders are ultimately determined by Commerce, not CBP, Vanguard relied on 19 C.F.R. § 165.16(a) to request CBP make a covered merchandise referral or stay the EAPA investigation until the importer could file a scope ruling request. CBP refused, stating that the regulation only requires the agency to turn to Commerce when “CBP cannot determine whether the merchandise described in an allegation is properly within the scope of an antidumping or countervailing duty order.”

Ultimately, the Court upheld CBP’s determination as Vanguard’s description of the merchandise was not only material and false, the case numbers’ omission and entry type misclassification met the statutory standard for evasion. The Court also ruled that when CBP concludes that merchandise is covered by an AD/CVD order, the agency may proceed with an evasion case without waiting for Commerce’s separate analysis.

If your company has concerns about the scope of AD/CVD orders or how to navigate an EAPA investigation, please reach out to one of our attorneys at Barnes, Richardson & Colburn.