Slip Op. 25-147 UNITED STATES COURT OF INTERNATIONAL TRADE
SUPERIOR COMMERCIAL SOLUTIONS, LLC,
Plaintiff, Before: Jennifer Choe-Groves, Judge
v. Court No. 24-00052
UNITED STATES,
Defendant.
OPINION AND ORDER
[Sustaining U.S. Customs and Border Protection’s determination under the Enforce and Protect Act.]
Dated: November 26, 2025
Gregory Stephen Menegaz, Alexandra H. Salzman, Judith L. Holdsworth, and Vivien J. Wang, The Inter-Global Trade Law Group, PLLC, of Washington, D.C., for Plaintiff Superior Commercial Solutions, LLC.
Brett A. Shumate, Assistant Attorney General, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. With him on the brief was Brian M. Boynton, Principal Deputy Assistant Attorney General, and Patricia M. McCarthy, Director, Franklin E. White, Jr., Assistant Director, and Liridona Sinani, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C. Of counsel on the brief was Nicolas A. Morales, Attorney, Office of Chief Counsel, U.S. Customs and Border Protection, of Washington, D.C.
Choe-Groves, Judge: This case involves procedural due process challenges
to implementation of the Enforce and Protect Act (“EAPA”), alleged in a Court No. 24-00052 Page 2
Complaint filed by Plaintiff Superior Commercial Solutions, LLC (“Superior” or
“Plaintiff”), an importer of quartz slab countertops, against U.S. Customs and
Border Protection (“Customs”). Compl. ¶¶ 12, ECF No. 4. Plaintiff alleges that
Customs violated Plaintiff’s procedural due process rights when Customs failed to
initiate an investigation within the statutorily mandated 15 days, and when
Customs failed to notify Plaintiff about the EAPA investigation until the
imposition of interim measures. Id. ¶¶ 2327. Plaintiff also contends that
Customs’ evasion determination was not supported by substantial evidence and the
adverse inference determination was not in accordance with law. Id. ¶¶ 3952.
Customs determined that Superior evaded antidumping and countervailing
duty orders on quartz surface products imported from the People’s Republic of
China (“China”) into the United States by underevaluation and/or transshipment
through Vietnam. Notice of Determination as to Evasion (Aug. 31, 2023) (“2023
Determination” or “2023 Det.”), PR 56, CR 441; Final Administrative Review
Decision, EAPA Case No.7783 (Jan. 11, 2024) (“2024 Final Administrative
Review Determination” or “2024 Final Admin. Rev. Det.”), PR 68, CR 47; see
also Certain Quartz Surface Products From the People’s Republic of China
1 Citations to the administrative record reflect the Public Record (“PR”), and the Confidential Record (“CR”), ECF Nos. 30, 31. Court No. 24-00052 Page 3
(“Orders”), 84 Fed. Reg. 33,053 (Dep’t of Commerce July 11, 2019) (antidumping
and countervailing duty orders).
Before the Court is Plaintiff’s Rule 56.2 Motion for Judgment on the Agency
Record, in which Plaintiff requests that this Court order Customs to rescind the
enforcement measures imposed on quartz countertop products imported between
September 29, 2022 and January 26, 2023; remand this case to Customs with
instructions to make determinations on an entry-by-entry basis; remand this case to
Customs with instructions to prove intent or culpability under the EAPA; and
remand this case to Customs with instructions to reconsider its application of an
adverse inference. Pl.’s R. 56.2 Mem. Supp. Mot. J. Agency Record (“Pl.’s Br.”),
ECF Nos. 21, 22. The United States (“Defendant” or “Government”) opposed
Superior’s motion. Def.’s Resp. Opp’n Pl.’s Mot. J. Agency R. (“Def.’s Resp.”),
ECF Nos. 25, 26. Superior filed a reply brief to the Government’s opposition.
Pl.’s Reply Br., ECF Nos. 28, 29. The Court asked the Parties to submit further
briefing in response to questions provided by the Court. Order (Feb. 24, 2025),
ECF No. 33. Superior and the Government provided their written responses to the
Court’s Order. Def.’s Resp. Court’s Questions, ECF Nos. 35, 36; Pl.’s Resp. Court
Order, ECF No. 39; Def.’s Resp. Court’s Questions II, ECF No. 42; Pl.’s Resp.
Questions, ECF No. 43. For the reasons set forth below, the Court sustains Court No. 24-00052 Page 4
Customs’ final administrative review evasion determination, notwithstanding
several concerns about procedural due process violations that are discussed below.
BACKGROUND
In 2019, the U.S. Department of Commerce (“Commerce”) issued
antidumping and countervailing duty orders on quartz surface products from
China. Orders, 84 Fed. Reg. at 33,053. The Orders instruct Customs to assess
“antidumping duties equal to the amount by which the normal value of the
merchandise exceeds the export price or constructed export price of the subject
merchandise, for all relevant entries of quartz surface products from China” and to
assess “countervailing duties on all relevant entries of quartz surface products from
China.” Id. at 33,053, 33,055.
Cambria Company LLC (“Cambria”), a domestic producer of quartz surface
products, submitted an allegation to Customs on September 8, 2022, alleging that
Superior was evading the Orders. Request for an Investigation under the Enforce
and Protect Act of Superior Commercial Solutions LLC (Sept. 8, 2022) (“Cambria
Req. Invest.”) at 59, PR 1, CR 4; 2024 Final Admin. Rev. Det. at 2. Cambria
alleged that two Chinese companies were exporting quartz surface products to
Kales Quartz Co., Ltd. (“Kales”) in Vietnam, and then Kales was exporting the
quartz to Superior in the United States. Cambria Req. Invest. at 59; 2024 Final
Admin. Rev. Det. at 2. Customs acknowledged receipt of Cambria’s allegation Court No. 24-00052 Page 5
one month later, on October 6, 2022. Official Receipt Email (Oct. 6, 2022), PR 3;
2024 Final Admin. Rev. Det. at 2. Fifteen business days after Customs’
acknowledgment of receipt, Customs initiated an EAPA investigation after
determining that Cambria’s allegation reasonably alleged that Superior had evaded
the Orders. 2024 Final Admin. Rev. Det. at 2.
Customs informed Superior of its investigation for the first time on January
26, 2023. Notice of Initiation of Investigation and Interim Measures External
Email (Jan. 26, 2023), PR 10. Along with this notice, Customs informed Superior
that it had determined that a reasonable suspicion of evasion existed and that
Customs had decided to initiate interim measures. Id. Customs imposed interim
measures on February 2, 2023. Notice of Initiation of Investigation and Interim
Measures (Feb. 2, 2023) (“Notice of Investigation and Interim Measures”) at 1, PR
11, CR 10; 2024 Final Admin. Rev. Det. at 4.
After giving notice of the investigation and interim measures, Customs
issued Requests for Information to Superior, as well as three other Vietnamese
exporters and one Chinese exporter: Kales, Engga Company Limited (“Engga”),
Strry Manufacturing Company Limited (“Strry”), and Xiamen Stone Display.
2024 Final Admin. Rev. Det. at 5. Xiamen Stone Display did not respond; Kales,
Engga, and Strry all responded to the requests for information; and Kales and
Engga submitted a joint response based on their affiliated status. Id. Customs Court No. 24-00052 Page 6
noted that Kales and Engga “are actually the same company” and often referred to
the companies as “Kales/Engga.” Id. at 5 n.19.
In their responses, the companies explained that Strry purchased the raw
materials used to produce its quartz slabs in Vietnam and then provided its slabs to
Kales/Engga for further processing in Vietnam. Id. at 5. Kales/Engga purchased
semifinished quartz slabs and then sold the subject merchandise. Id. Customs
stated that it intended to verify this process and conduct on-site inspections of each
company’s facilities in Vietnam. Id. Initially, the Vietnamese companies agreed
to the inspections, but they later withdrew their consent. Id. at 56.
After receiving comments from both Cambria and Superior,2 Customs’
Trade Remedy & Law Enforcement Directorate issued a notice of determination,
asserting that substantial evidence existed to support a determination that Superior
imported quartz slab products from China into the United States “by
undervaluation and/or transshipment through Vietnam.” 2023 Det. at 1; 2024 Final
Admin. Rev. Det. at 6. Customs’ Trade Remedy & Law Enforcement Directorate
also determined that Kales/Engga and Strry failed to cooperate to the best of their
ability in the investigation and provided submissions that included “material false
statements, fraudulent documentation, the omission of material facts,” and
unverified information. 2023 Det. at 38.
2 Only Superior’s comments were provided in full on the record. Court No. 24-00052 Page 7
Based on these determinations, Customs’ Trade Remedy & Law
Enforcement Directorate applied an adverse inference against Kales/Engga and
Strry. Id. at 3739. Applying the adverse inference, Customs determined that all
of Superior’s quartz slab products that entered the United States from Kales/Engga
or Strry during the period of investigation were of Chinese origin. Id. at 3839.
However, Customs also noted that “enough evidence exist[ed] on the record to
determine that there is evasion without” the application of adverse inferences. Id.
at 39; see also id. at 2337 (discussing the totality of the evidence on the record).
Superior requested an administrative review of Customs’ Trade Remedy &
Law Enforcement Directorate’s determination, and Customs’ Office of Trade,
Regulations & Rulings Directorate affirmed the determination. EAPA Case No.
7783 – SCS Request for Administrative Review (Oct. 16, 2023) (“Superior
Request for Admin. Review”), PR 59, CR 46. Superior then appealed to this
Court. See Compl. Superior seeks review of Customs’ Trade Remedy & Law
Enforcement Directorate’s Notice of Initiation and Interim Measures, dated
February 2, 2023; Customs’ Trade Remedy & Law Enforcement Directorate’s
Final Determination of Evasion, dated August 31, 2023; and Customs’ Office of
Trade, Regulations and Rulings’ Final Administrative Review Determination,
dated January 11, 2024. Compl. ¶¶ 1, 10. Court No. 24-00052 Page 8
In Count One of its Complaint, Superior alleged that Customs violated its
“due process right to be heard and defend against allegations of evasion at a
meaningful time.” Id. ¶ 23. In Count Two, Superior alleged that Customs acted
contrary to the legislative intent of the EAPA when it withheld notice of its
investigation into Superior. Id. ¶¶ 26–27. In Count Three, Superior alleged that
Customs violated its due process right by not providing Superior with every
unredacted memorandum in full that Customs used when making its
determinations. Id. ¶¶ 28–30. In Count Four, Superior alleged that Customs acted
arbitrarily and capriciously when it failed to “provide [Superior] and the
Vietnamese entities each a partially-redacted business confidential version final
determination and final administrative review decision, consisting, at a minimum,
of each’s own business confidential information[.]” Id. ¶ 33. In Count Five,
Superior alleged that Customs acted arbitrarily and capriciously when it did not
provide email notice to the parties that it uploaded the June 2023 memorandum to
the EAPA online portal. Id. ¶¶ 3437. In Count Six, Superior alleged that
Customs acted arbitrarily and capriciously when it “misinterpreted a significant
amount of information on the record that demonstrate[d] a substantial portion of
[Superior’s] quartz countertop imports from the Vietnamese exporter Engga was
manufactured with only Vietnamese-origin slabs.” Id. ¶ 39. In Count Seven,
Superior alleged that Customs’ affirmative evasion “determination on a substantial Court No. 24-00052 Page 9
portion of [Superior’s] imports is contrary to record evidence.” Id. ¶ 43. In Count
Eight, Superior alleged that Customs acted arbitrarily and capriciously when it
applied an adverse inference that impacted Superior when Superior was a
cooperating party to the investigation. Id. ¶¶ 45–47. In Count Nine, Superior
alleged that Customs acted arbitrarily and capriciously when it determined that
Superior submitted false material statements or omissions. Id. ¶¶ 4849. Lastly, in
Count Ten, Superior alleged that Customs violated 19 U.S.C. § 1517(d)(1)(C)
when it failed to inform Commerce of its affirmative evasion determination or
request an applicable assessment rate from Commerce. Id. ¶¶ 5052.
JURISDICTION AND STANDARD OF REVIEW
The U.S. Court of International Trade (“CIT”) has jurisdiction pursuant to
19 U.S.C. § 1517(g)(1) and 28 U.S.C. § 1581(c). 19 U.S.C. § 1517(g)(2) directs
the Court to examine “whether the Commissioner fully complied with all
procedures under subsection (c) and (f)” and “whether any determination, finding,
or conclusion is arbitrary, capricious, an abuse of discretion, or otherwise not in
accordance with law.” 19 U.S.C. § 1517(g)(2)). The U.S. Court of Appeals for the
Federal Circuit (“CAFC”) has explained:
Courts have found an agency’s decision to be arbitrary and capricious when the agency “entirely failed to consider an important aspect of the problem, offered an explanation for its decision that runs counter to the evidence before the agency, or [the decision] is so implausible that it Court No. 24-00052 Page 10
could not be ascribed to a difference in view or the product of agency expertise.
Ala. Aircraft Indus., Inc. v. United States, 586 F.3d 1372, 1375 (Fed. Cir. 2009)
(quoting Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S.
29, 43 (1983)).
DISCUSSION
I. Due Process Right to be Heard at a Meaningful Time (Count I)
A. Waiver
In its opening brief, Superior argues that Customs acted “contrary to law
when it failed to initiate the EAPA investigation 15 business days after it received
Cambria’s September 8, 2022 allegation . . . .” Pl.’s Br. at 16.
The Government avers that Superior waived its challenge to the timeliness
of Customs’ investigation because Superior failed to raise this claim in the
administrative proceeding below and failed to raise this claim in its Complaint
filed with this Court. Def.’s Resp. at 11.
Superior argues that the Court should not find this issue waived simply
because Superior “failed to specifically cite 19 U.S.C. § 1517(b)(1)-(2) in its
agency-level brief[.]” Pl.’s Reply Br. at 5.
The issue raised in Superior’s opening brief was not adequately pled in the
Complaint or in Superior’s filings in the administrative proceeding below. See
Compl. ¶¶ 2225. EAPA Case No. 7783 – SCS Written Argument (June 26, Court No. 24-00052 Page 11
2023), PR 52, CR 41; EAPA Case No. 7783 – SCS Response to the Written
Arguments Filed by Alleger (July 11, 2023), PR 54, CR 42; Superior Request for
Admin. Review.
“[T]he Court of International Trade shall, where appropriate, require the
exhaustion of administrative remedies.” 28 U.S.C. § 2637(d). Exhaustion of
administrative remedies establishes “that no one is entitled to judicial relief for a
supposed or threatened injury until the prescribed administrative remedy has been
exhausted.” Consol. Bearings Co. v. United States, 348 F.3d 997, 1003 (Fed. Cir.
2003) (internal quotation marks and citation omitted). Generally, administrative
exhaustion requires a party to present all its arguments in the administrative
proceeding before raising those issues in court. See Dorbest Ltd. v. United States,
604 F.3d 1363, 1375 (Fed. Cir. 2010); 19 C.F.R. §§ 351.309(c)–351.309(d).
There are several exceptions, however, to the administrative exhaustion
requirement. Consol. Bearings Co., 348 F.3d at 1003. CIT has not required
exhaustion pursuant to 28 U.S.C. § 2637(d) under four circumstances: when “(1)
plaintiff’s argument involves a pure question of law; (2) there is a lack of timely
access to the confidential record; (3) a judicial decision rendered subsequent to the
administrative determination materially affected the issue; or (4) raising the issue
at the administrative level would have been futile.” Ninestar Corp. v. United
States, 48 CIT __, 687 F. Supp. 3d 1308, 1326 (2024) (quoting Gerber Food Court No. 24-00052 Page 12
(Yunnan) Co. v. United States, 33 CIT 186, 193, 601 F. Supp. 2d 1370, 1377
(2009)). The pure question of law exception may apply when a party raises an
issue “that can be addressed without further factual development or further agency
exercise of discretion.” Itochu Bldg. Prods. v. United States, 733 F.3d 1140, 1146
(Fed. Cir. 2013).
Superior avers that the pure legal issue exception applies in this instance.
Pl.’s Reply Br. at 5. Superior explains that its “challenge concerns only the
interpretation of the statutory language and does not require the application of any
special expertise by [Customs] or the development of additional factual record.”
Id. The Court agrees because the issue of the 15-day requirement is a pure legal
issue of statutory interpretation. The Court will consider Superior’s argument
under the pure question of law exception.
B. Timeliness of Customs’ Initiation of EAPA Investigation
19 U.S.C. § 1517(b)(1) states:
Not later than 15 business days after receiving an allegation described in paragraph (2) or a referral described in paragraph (3), the Commissioner shall initiate an investigation if the Commissioner determines that the information provided in the allegation or the referral, as the case may be, reasonably suggests that covered merchandise has been entered into the customs territory of the United States through evasion.
19 U.S.C. § 1517(b)(1) (emphasis added). Court No. 24-00052 Page 13
Superior explains that in April 2021, Customs announced that EAPA
allegations should be filed online through its designated portal. Pl.’s Br. at 17.
Because Cambria submitted its allegation through the online portal, Superior avers
that Customs received it instantly. Id. Superior maintains that the date of receipt
in this case should be September 8, 2022, the day Cambria uploaded its allegation
in the online portal, and Customs was required to initiate its investigation no later
than September 29, 2022, 15 business days thereafter. Id. at 16. Superior avers
that Congress was clear and unambiguous when drafting 19 U.S.C. § 1517(b) and
“did not afford [Customs] the discretion to create an extra step involving an
undefined amount of time to consider whether the allegation is proper.” Id. at 17.
Post-Loper Bright, Superior asserts that this Court owes no deference to Customs
in deciding how to implement 19 U.S.C. § 1517(b). Id. at 18; see Loper Bright
Enters. v. Raimondo, 603 U.S. 369 (2024).
Customs’ regulation defines “date of receipt” as “the date on which CBP
provides an acknowledgment of receipt of an allegation containing all the
information and certifications required[.]” 19 C.F.R. § 165.12. Superior avers that
this regulation gives Customs “unchecked time” to circumvent its statutory
responsibility. Pl.’s Br. at 19. The Court agrees.
The statute states:
Not later than 15 business days after receiving an allegation described in paragraph (2) or a referral described in paragraph (3), the Court No. 24-00052 Page 14
Commissioner shall initiate an investigation if the Commissioner determines that the information provided in the allegation or the referral, as the case may be, reasonably suggests that covered merchandise has been entered into the customs territory of the United States through evasion.
19 U.S.C. § 1517(b)(1) (emphasis added). The statute hinges the deadline on a
determination made by the Commissioner, which, pragmatically, cannot happen
instantaneously, but according to the statute, must happen within 15 days.
Customs’ regulation defines “date of receipt” as the date when Customs confirms
that the allegation contains “all the information and certifications required[.]” 19
C.F.R. § 165.12. It is important to note that the only information required to file an
evasion allegation is:
(1) Name of the interested party making the allegation and identification of the agent filing on its behalf, if any, and the email address for communication and service purposes; (2) An explanation as to how the interested party qualifies as an interested party pursuant to § 165.1; (3) Name and address of importer against whom the allegation is brought; (4) Description of the covered merchandise; (5) Applicable AD/CVD orders; and (6) Information reasonably available to the interested party to support its allegation that the importer with respect to whom the allegation is filed is engaged in evasion.
19 C.F.R. § 165.11(b).
The Government contends that Superior’s argument that Customs’
investigation was untimely should not prevail because the deadline set forth in 19
U.S.C. § 1517(b)(1) is not mandatory. Def.’s Resp. at 1317. The Government
asserts that because there is no “hammer” provision or consequence for not Court No. 24-00052 Page 15
meeting the 15-day deadline, “shall” is optional rather than mandatory. Id. at 14
(relying on Diamond Tools Tech. LLC v. United States, 45 CIT __, __, 545 F.
Supp. 3d 1324, 133335 (2021)).
This Court disagrees because “shall” means “shall,” and “shall” is a
mandatory statutory obligation. The U.S. Supreme Court has stated repeatedly that
“[t]he first sign that the statute imposed an obligation is its mandatory language:
‘shall.’” Maine Cmty. Health Options v. United States, 590 U.S. 296, 310 (2020).
“Unlike the word ‘may,’ which implies discretion, the word ‘shall’ usually
connotes a requirement.” Kingdomware Techs., Inc. v. United States, 579 U.S.
162, 171 (2016); see also Lexecon Inc. v. Milberg Weiss Bershad Hynes & Lerach,
523 U.S. 26, 35 (1998) (observing that “‘shall’” typically “creates an obligation
impervious to . . . discretion”).
The statute clearly states that “the Commissioner shall initiate an
investigation” no later than 15 business days after receiving an allegation. 19
U.S.C. § 1517(b)(1). The Court holds that the 15-day deadline set forth in 19
U.S.C. § 1517(b) is mandatory, not optional.
Superior’s argument here is not a novel one. During the comment period for
the new regulations setting forth procedures for the investigation of claims of
evasion of antidumping and countervailing duty orders, including 19 C.F.R.
§ 165.12, “[m]ultiple commenters disagreed with the term ‘date of receipt’ in Court No. 24-00052 Page 16
§ 165.12(a).” Investigation of Claims of Evasion of Antidumping and
Countervailing Duties, 89 Fed. Reg. 19,239, 19,243 (U.S. Customs and Border
Protection, Dep’t of Homeland Security, Dep’t of Treasury Mar. 18, 2024). The
commenters argued that the purpose of the Trade Facilitation and Trade
Enforcement Act of 2015 was to require Customs “to proceed swiftly and adhere to
strict deadlines, but claimed that the way the interim regulation is written, the date
of receipt is entirely within [Customs’] control, and thus the regulatory language
runs counter to the statutory language . . . .” Id. Customs defined “date of receipt”
in 19 C.F.R. § 165.12 as follows:
The ‘date of receipt’ of a properly filed allegation is the date on which [Customs] provides an acknowledgment of receipt of an allegation containing all the information and certifications required in § 165.11, together with a [Customs]-assigned control number, to the party that filed the allegation. [Customs] has 15 business days from the date of receipt to determine whether to initiate an investigation under the EAPA.
19 C.F.R. § 165.12.
Customs explained that “[t]he statute and interim regulations provide
[Customs] the flexibility to properly examine the allegations as resources allow.”
Investigation of Claims of Evasion of Antidumping and Countervailing Duties, 89
Fed. Reg. at 19,244. Customs stated that this flexibility is necessary because
“[i]nitiating an investigation within 15 business days of an allegation being in
[Customs’] possession could lead to an inefficient use of [Customs’] resources, as Court No. 24-00052 Page 17
poorly filed allegations or incomplete allegations would cause [Customs] to
perform work that should have been done by the alleger.” Id.
The Court disagrees because Congress’ intention is clear that Customs must
initiate an investigation quickly, demonstrated by Congress’ addition of the
specific 15-day requirement into the EAPA’s statutory text. In Brock v. Pierce
Cnty., the Supreme Court noted that “[t]his Court has frequently articulated the
‘great principle of public policy, applicable to all governments alike, which forbids
that the public interests should be prejudiced by the negligence of the officers or
agents to whose care they are confided.’” Brock v. Pierce Cnty., 476 U.S. 253,
260 (1986) (discussing the failure of the government to make an administrative
decision within a statutorily required timeframe).
In theory, Customs’ expansive interpretation with no restrictions would
allow Customs to take a long time, for example, 12 months, to deem an allegation
“received,” and then Customs could initiate an investigation 12 months plus 15
days later. This result would be inconsistent with Congress’ intention that
Customs should act quickly to bring EAPA investigations within 15 days.
Congress could have, but did not, give Customs unfettered flexibility in the text of
the EAPA statute. Rather, Congress required that Customs shall initiate an EAPA
investigation no later than 15 days after receiving a request, clearly demonstrating
Congress’ expectation that an investigation would begin quickly. Court No. 24-00052 Page 18
The information necessary to support an EAPA allegation is minimal under
19 C.F.R. § 165.11. This provision “requires the alleger to provide its own name
and email address, a statement that qualifies the alleger as an interested party,
name and address of the targeted importer, description of alleged covered
merchandise, applicable AD CVD orders, and information reasonably available to
the alleger that supports its allegation.” Pl.’s Br. at 19–20. After Customs initiates
an investigation within 15 days under 19 C.F.R. § 165.11, Customs has 90 days to
determine whether there is a “reasonable suspicion” of evasion under 19 C.F.R.
§ 165.24. 19 C.F.R. § 165.24. Thus, the information required under 19 C.F.R.
§ 165.11 to initiate an EAPA investigation within 15 days is minimal, and is less
than “reasonable suspicion.” Customs is required by statute to initiate an
investigation within 15 days of receiving an allegation under 19 U.S.C. § 1517(b),
unless there are clerical errors or the allegation is withdrawn. 19 C.F.R. § 165.15.
With respect to Customs’ regulation 19 C.F.R. § 165.12 that gives the
agency unlimited time to determine “date of receipt,” this unfettered ability to
extend the “date of receipt” well beyond 15 days is contrary to the EAPA statute
and contrary to Congress’ intent for Customs to initiate EAPA investigations
quickly. The Court concludes that Customs’ regulation 19 C.F.R. § 165.12 is not
in accordance with law to the extent that the regulation allows Customs to extend
and alter Congress’ 15-day statutory deadline for an unlimited period of time, Court No. 24-00052 Page 19
which is inconsistent with 19 U.S.C. § 1517(b) that reflects Congress’ intent for
Customs to initiate EAPA investigations quickly within 15 days of receiving an
allegation.
Here, Customs received the EAPA allegation on September 8, 2022, did not
acknowledge receipt of the allegation until October 6, 2022, and did not initiate an
investigation until October 28, 2022. See 2024 Final Admin. Rev. Det. at 2.
Customs was required by the EAPA statute to initiate the investigation by
September 29, 2022, which was 15 days after the allegation was received. See 19
U.S.C. § 1517(b). Customs did not mention any clerical mistakes in the
information submitted that could have arguably justified some delay in
acknowledging receipt of the allegation information. See 19 C.F.R. § 165.15.
Thus, Customs’ initiation of the investigation was approximately 30 days past the
statutory deadline.
Plaintiff argues that “[i]n reality, EAPA allegations are all filed
electronically with [Customs]. . . . Therefore, once an EAPA allegation is filed
with [Customs], it is received by [Customs] instantly.” Pl.’s Br. at 17. The Court
observes that Customs stated, “In assessing the basis for the allegation, [Customs]
found that the information the Alleger submitted reasonably suggests that
[Superior] entered merchandise covered by the AD/CVD orders into the customs
territory of the United States through evasion. . . . Thus, in light of the information Court No. 24-00052 Page 20
set forth, [Customs] initiated an investigation.” Notice of Investigation and Interim
Measures at 6.
The Court concludes that Customs’ failure to meet the 15-day statutory
deadline to initiate an investigation was contrary to the EAPA statute and therefore
not in accordance with law.
The Parties dispute whether there should be any consequence for Customs’
failure to meet the 15-day statutory deadline. Plaintiff argues that Customs should
lift the enforcement action it imposed on the portion of Superior’s entries that
Superior would not have entered but for Customs’ late institution of the
investigation. Pl’s Br. at 26. The Government argues that 19 U.S.C. § 1517 is
optional, rather than mandatory, because the statute does not impose a penalty for
the Government’s noncompliance with the statutory deadline. Def.’s Resp. at 14.
The Court concludes that precluding an EAPA investigation altogether for
Customs’ failure to meet the statutory deadline is too strict a remedy,
acknowledging that neither Party suggests that failure to meet the 15-day deadline
should prohibit an EAPA investigation completely. The Supreme Court has
declined to overturn statutorily untimely agency actions in cases when an agency
failed to act within a specified time period that the statute mandated it “shall” act.
E.g., Brock v. Pierce Cnty., 476 U.S. at 260 (holding that not every failure of an
agency to observe a procedural requirement voids subsequent agency action, Court No. 24-00052 Page 21
especially where important public rights are at stake; when “there are less drastic
remedies available for failure to meet a statutory deadline, courts should not
assume that Congress intended the agency to lose its power to act.”); see also
Barnhart v. Peabody Coal Co., 537 U.S. 149, 160 (2003) (noting that by 1992
“Congress was presumably aware that we do not readily infer congressional intent
to limit an agency’s power to get a mandatory job done merely from a specification
to act by a certain time.”).
The Court sees no reason to stray from this precedent. The Court will not
limit Customs’ power to take action under the EAPA statute due to its failure to
meet the statutory deadline; however, similar to the Supreme Court’s opinion in
Brock v. Pierce Cnty., the Court concludes in this case that “there are less drastic
remedies available for failure to meet a statutory deadline.” Brock, 476 U.S. at
260.
The Government argues that “[Superior] has failed to demonstrate that it
suffered substantial prejudice by reason of the delay.” Def.’s Br. at 14. Plaintiff
explains, however, that Customs’ imposition of interim measures of a 371.47%
duty rate had significant financial consequences:
As soon as [Superior] was notified of the EAPA investigation on January 26, 2023, it immediately ceased making entries of alleged covered merchandise and turned away any such shipments that were on water. Therefore, the consequence caused solely by Customs’ failure to initiate an investigation within fifteen business days from receiving the allegation is [Superior] continued to make imports of alleged Court No. 24-00052 Page 22
covered merchandise after December 12, 2022 and to accrue AD/CVD duties at the combined rate of 371.47% on those entries even after Customs had launched an investigation.
Pl.’s Resp. Court Order at 2. Plaintiff explained that, upon notification of the
EAPA investigation, “[Superior] immediately ceased importing the merchandise at
issue because [Superior] could not afford making entries of alleged covered
merchandise at a combined AD/CVD cash deposits at 371.47 percent.” Id. at 6.
Interim measures, in addition to increasing the cash deposits significantly, would
also greatly increase the amount of any bond required. See Monetary Guidelines
for Setting Bond Amounts for Importations Subject to Enhanced Bonding
Requirements, 71 Fed. Reg. 62,276 (U.S. Customs and Border Protection, Dep’t
Homeland Security, Oct. 24, 2006).
Plaintiff suggests that the Court should consider “less drastic remedies
available for failure to meet a statutory deadline” as described by the Supreme
Court in Brock v. Pierce Cnty.. Pl.’s Resp. Court Order at 2–3. Plaintiff contends
that “[e]nforcing the deadline to initiate an EAPA allegation would serve the
statutory purpose of providing immediate relief to the U.S. industry from un-taxed
and dumped imports.” Id. at 4. Plaintiff argues that “Customs’ process to accept
or reject the EAPA allegation should have taken fifteen business days, not fifteen
business days plus thirty days. Customs’ unwarranted delay prejudiced [Superior] Court No. 24-00052 Page 23
and can only be remedied by excluding entries entered during those thirty days
from any interim measures or final measures applying AD/CVD duties.” Id.
The Court agrees with Plaintiff that the imposition of interim and final
measures caused Plaintiff to suffer substantial prejudice in the form of monetary
consequences of 371.47% cash deposits and increased bond requirements.
The Court concludes that Plaintiff was prejudiced by the Government’s delay
(which was contrary to statute and unlawful) and holds that because Customs’
unlawful delay in initiating the investigation warrants a reasonable, equitable
remedy as discussed in Brock v. Pierce Cnty., the Court will exercise its equitable
powers to order that any entries entered after September 29, 2022 shall not be
subject to any interim or final measures applying AD/CVD duties. See Brock, 476
U.S. at 260. The Court grants summary judgment in favor of Plaintiff on Count I.
II. Due Process Right to Notice of Investigation (Count II)
Superior asserts that Customs improperly withheld notice of its investigation
for 140 days until interim measures were announced. Pl.’s Br. at 2026. Superior
acknowledges that the EAPA statute does not require Customs to provide notice to
the importer of a final determination from its Trade Remedy & Law Enforcement
Directorate. Id. at 21. Superior concedes that “Section 1517(c)(4) is the only
provision in Section 1517 that explicitly provides for notification of the TRLED Court No. 24-00052 Page 24
Final Determination, and [Customs] is only required to provide such notification to
the alleger.” Id.
Superior argues that despite the statute’s silence on when the targeted
importer being investigated must be notified, “the only reasonable reading of the
EAPA statute’s silence on providing notification to the targeted importer
throughout an EAPA investigation is that Customs should notify the targeted
importer at the time that it makes any []consequential decision pursuant to its
statutory obligation to investigate.” Pl.’s Resp. Questions at 4.
In its reply brief, Superior asserts “that the EAPA Statute as a whole would
be unconstitutional and violates private parties’ due process right if [Customs’]
interpretation of (the lack of) notice requirement to targeted importers in the EAPA
statute is allowed.” Pl.’s Reply Br. at 8. Superior defines its protected interest as
the “right to notice and a meaningful opportunity to be heard.” Id. at 9 (quoting
Royal Brush Mfg. v. United States, 75 F.4th 1250, 1258 (Fed. Cir. 2023)).
Superior explains that it should have been notified “of the investigation at each
crucial point of time throughout the investigation, including when [Customs] first
decides to initiate the investigation pursuant to 19 U.S.C. § 1517(b)(1).” Id.
The CAFC has recognized in the EAPA context that an importer
participating in an administrative proceeding has a procedural due process right to
notice and a meaningful opportunity to be heard. Royal Brush Mfg., 75 F.4th at Court No. 24-00052 Page 25
1257 (citing PSC VSMPO-Avisma Corp. v. United States, 688 F.3d 751, 761–62
(Fed. Cir. 2021)).
Plaintiff argues that a “meaningful opportunity to be heard” means before
the imposition of interim measures, citing the Supreme Court’s opinion in Brock v.
Roadway Express, Inc., which noted “the constitutional requirement of a
meaningful opportunity to respond before a temporary deprivation may take effect
entails, at a minimum, the right to be informed not only of the nature of the charges
but also of the substance of the relevant supporting evidence.” Brock v. Roadway
Express, Inc., 481 U.S. 252, 264–65 (1987).
The Court agrees with Plaintiff’s argument that a meaningful opportunity to
respond should happen before a temporary deprivation takes effect, not afterwards.
Id.; see also Royal Brush Mfg., 75 F.4th at 1257 (citing PSC VSMPO-Avisma
Corp., 688 F.3d at 761–62 (requiring the procedural due process right to “notice
and a meaningful opportunity to be heard” in an antidumping proceeding)). Here,
Superior was notified of the investigation at the time that interim measures were
imposed, which assessed a combined AD/CVD cash deposit rate of 371.47%
retroactively on all entries that were unliquidated. It was only when the 371.47%
interim penalty was imposed that Plaintiff was made aware of the allegations.
Plaintiff was not provided with an opportunity to offer evidence and make Court No. 24-00052 Page 26
administrative arguments prior to the imposition of 371.47% interim penalties on
all unliquidated entries.
Under 19 C.F.R. § 165.15(d)(1), Customs is required by its regulations to
issue notification “of its decision to initiate an investigation to all parties to the
investigation no later than five business days after day 90 of the investigation,” and
“no later than five business days after day 90 of the investigation” in cases where
interim measures are taken. 19 C.F.R. § 165.15(d)(1). As written, 19 C.F.R.
§ 165.15(d)(1) provides notice to all parties to the investigation no later than 95
days after the decision has been made and no later than five business days after
interim measures have been imposed, which by definition does not allow for a
party under investigation to submit any evidence or offer any administrative
arguments in its defense prior to when the temporary deprivation takes effect as
described by the Supreme Court in Brock v. Roadway Express, Inc., 481 U.S.at
264–65.
The Court concludes that the regulation at 19 C.F.R. § 165.15(d)(1) is
arbitrary, capricious, and not in accordance with law because the regulation does
not provide an importer participating in an administrative proceeding with a
procedural due process right to notice and a meaningful opportunity to be heard.
Royal Brush Mfg., 75 F.4th at 1257; see also Brock, 481 U.S. at 264–65. Court No. 24-00052 Page 27
Similar to the discussion above regarding the Government’s violation of the
15-day statutory requirement, the Court agrees that Plaintiff was prejudiced by the
Government’s withholding of notification until 140 days after the investigation
was initiated, when interim measures of a 371.47% ad valorem cash deposit rate
were imposed retroactively on all unliquidated entries. The Court holds that
because Customs’ failure to notify the importer promptly about the EAPA
investigation deprived Plaintiff of notice and a meaningful opportunity to be heard
before the temporary deprivation occurred, the situation warrants a reasonable,
equitable remedy as discussed in Brock v. Pierce Cnty., 476 U.S. at 260.
Accordingly, any entries entered after September 29, 2022 (the date on which the
EAPA investigation should have been initiated under the statutory deadline) shall
not be subject to the cash deposit rate of 371.47% ad valorem interim measures
applying AD/CVD duties, nor shall be subject to final measures due to the same
lack of notice and a meaningful opportunity to be heard.
The Court grants summary judgment in favor of Plaintiff on Count II.
III. Allegation That EAPA Investigation Was Not in Accordance With
Law (Count VI)
Under the EAPA statute, Customs makes a determination of evasion when
an importer is:
[E]ntering covered merchandise into the customs territory of the United States by means of any document or Court No. 24-00052 Page 28
electronically transmitted data or information, written or oral statement, or act that is material and false, or any omission that is material, and that results in any cash deposit or other security or any amount of applicable antidumping or countervailing duties being reduced or not being applied with respect to the merchandise.
19 U.S.C. § 1517(a)(5)(A).
Customs’ regulations state:
If . . . the importer, or the foreign producer or exporter of the covered merchandise fails to cooperate and comply to the best of its ability with a request for information made by [Customs], [Customs] may apply an inference adverse to the interests of that party in selecting from among the facts otherwise available to make the determination as to evasion. . . .
19 C.F.R. § 165.6(a).
The Court concludes that Customs’ determination that Kales/Engga and
Strry failed to cooperate and comply to the best of their ability with Customs’
requests for information in multiple instances is supported by substantial evidence.
Customs cited evidence and described the actions of Kales/Engga and Strry as “a
pattern of deception that is consistent with a willingness to facilitate evasion.”
2023 Det. at 11. Customs detailed at least eight distinct instances when
Kales/Engga and Strry provided material false statements, omitted material
statements, or attempted to conceal material facts. Id. at 3738. For example,
Customs noted that: (1) Kales/Engga and Strry failed to report all of their affiliated
companies; (2) Kales/Engga and Strry failed to provide business documents Court No. 24-00052 Page 29
requested by Customs; (3) Kales/Engga and Strry denied affiliation with a China-
based entity; (4) Kales/Engga and Strry denied affiliation with another entity; (5)
Kales/Engga and Strry concealed material evidence concerning an affiliation
between Kales and Engga; (6) Strry provided false information and failed to
provide requested documentation; (7) Kales/Engga and Strry did not participate in
Customs’ verification; and (8) Kales/Engga provided fraudulent payment
documents. Id.
Based on these examples that are supported by record evidence, the Court
concludes that Customs properly applied an adverse inference against Kales/Engga
and Strry by inferring that all of the subject merchandise that they exported to the
United States during the period of investigation was of Chinese-origin. Id. at 38.
The Court holds that Customs’ adverse inference was in accordance with law and
supported by substantial evidence.
IV. Whether Customs’ EAPA Determination Was Supported by
Substantial Evidence (Count VII)
Separate from the adverse inference analysis, Plaintiff argues that Customs’
determination of evasion was not supported by substantial evidence. Pl.’s Br. at
26. Plaintiff asserts that Customs should have examined each entry to determine
whether evasion occurred. Id. In the administrative proceeding below, Superior
conceded that approximately one-third of the shipments it received from Court No. 24-00052 Page 30
Kales/Engga contained Chinese quartz slabs. 2024 Final Admin. Rev. Det. at 12.
In the 2024 Final Administrative Review Determination, Customs determined that
“there [was] substantial evidence that [Superior] imported [quartz surface
products] from China into the United States.” Id. Superior asserts that only the
previously identified one-third of shipments contained Chinese quartz slabs and
that Customs erred by not making an entry-by-entry determination for the
remaining entries. Pl.’s Br. at 27. Additionally, Superior avers that Customs
framed the universe of covered merchandise incorrectly. Id. at 2728. Superior
argues that the remaining shipments “were manufactured using Vietnamese-origin
slabs [and] were not ‘covered merchandise[.]’” Id. at 28.
19 U.S.C. § 1517 requires Customs to have substantial evidence to support a
finding of evasion. 19 U.S.C. § 1517(c)(1)(A). Substantial evidence is “more than
a mere scintilla” and has been defined as “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion.” Consol. Edison Co. of
New York v. N.L.R.B., 305 U.S. 197, 217 (1938).
Regarding the shipments that Superior conceded were of Chinese origin,
Customs explained that these shipments “constitute[d] a significant portion of
shipments during the [period of investigation].” 2024 Final Admin. Rev. Det. at
12. Customs explained that, “because Kales/Engga and Strry did not permit
[Customs’] verification, [Customs] was unable to verify the information in Court No. 24-00052 Page 31
Kales/Engga’s records to determine whether [the provided percentage] was an
accurate proportion. Therefore, [Customs] cannot rely on this proportion to
discern which entries contain covered merchandise.” 2023 Det. at 28.
The Court does not agree, absent an adverse inference determination, that it
was reasonable for Customs to assume that 100% of shipments were from China,
based only on evidence that approximately one-third of the shipments were from
China. See Ad Hoc Shrimp Trade Enf. Comm. v. United States, 47 CIT __, __,
632 F. Supp. 3d 1369, 1379 (2023) (“TRLED’s determination of evasion is not
reasonable on this record . . . and arbitrarily transforms a single instance of evasion
into a finding of evasion for an entire year of entries.”). While this case is more
than the one instance of evasion that the Court found to be arbitrary in Ad Hoc
Shrimp, the facts in this case are different.
In the absence of an adverse inference determination, it might be
unreasonable to assume that 100% of entries were from China, based only on
evidence of approximately one-third of shipments from China, particularly when
Plaintiff asserts that there is contrary evidence demonstrating that some of the
remaining shipments originated in Vietnam. Customs’ Office of Trade,
Regulations & Rulings Directorate did not expressly address whether the
remaining shipments contained quartz slabs from China. Superior contends that
other evidence on the record established that the remaining shipments of quartz Court No. 24-00052 Page 32
slabs were not of Chinese origin. Pl.’s Br. at 2728 (citing certain documents
provided by Kales showing sales of shipments produced from Vietnamese quartz
slabs, including countertop production records, quartz slabs purchase documents,
and quartz slabs production documents).
However, one cannot ignore that the facts in this case involve an adverse
inference determination and establish that Customs compared the amount of quartz
Kales/Engga sourced from China, the amount it sourced from Vietnam, and how
much quartz it supplied to its customers. 2023 Det. at 26. In direct contradiction
to Superior’s claim, Customs explained that it could not verify that the remaining
shipments originated in Vietnam because Kales/Engga and Strry rescinded their
consent to allow Customs to inspect their facilities to verify such information.
2024 Final Admin. Rev. Det. at 14; 2023 Det. at 29.
Customs recounted evidence that Kales/Engga and Strry were affiliated with
Chinese ownership, provided several false statements concerning their affiliation
and ownership, and concealed documents related to their affiliation and ownership.
2023 Det. at 623. Customs also detailed evidence that Kales/Engga imported a
substantial quantity of quartz slab products from China, in addition to the
approximately one-third of shipments that Superior identified. 2023 Det. at 2537.
These findings were affirmed by Customs’ Office of Trade, Regulations & Rulings
Directorate. 2024 Final Admin. Rev. Det. at 13. Court No. 24-00052 Page 33
As noted above, Customs made an adverse inference determination that
Kales/Engga and Strry provided material false statements and omitted or otherwise
attempted to conceal material facts in eight instances. 2023 Det. at 37–38.
Customs stated that, “[although] [Customs] is applying an adverse inference with
respect to Kales/Engga and Strry, enough evidence exists on the record to
determine that there is evasion without its use.” Id. at 38–39. Customs relies
heavily in its evasion determination on its adverse inference analysis, despite
Customs’ pronouncement that it did not need to rely on an adverse inference for its
analysis. If Customs did not make an adverse inference determination based on
evidentiary analysis, this case might have a different outcome. An inference that
100% of entries were from China may not be reasonable based on evidence of only
one-third of entries from China, without a more detailed entry by entry
investigation as suggested by Plaintiff.
Considering the Court’s holding above that Customs’ adverse inference
determination was in accordance with law and supported by substantial evidence,
the Court does not need to reach a conclusion on whether Customs’ determination
that 100% of subject merchandise were from China, based on evidence of
approximately one-third of shipments from China, was supported by substantial
evidence. Court No. 24-00052 Page 34
V. Applicability of Adverse Inference Against Cooperating Importer
(Counts VIII and IX)
Superior avers that it exercised due diligence and reasonable care when
importing shipments, and that it “did not intentionally or negligently enter covered
merchandise by an act that is material and false, or any omission that is material.”
Pl.’s Br. at 29. Superior maintains that it “was not aware that the Engga/Kales
imported any quartz slabs from China” and that the evidence on the record proves
this. Id. (emphasis in original). Based on this evidence, Superior argues that the
statutory criteria requiring falsity has not been met. Id. Essentially, Superior
argues that the EAPA has an intent or culpability requirement and that it has not
been met in this case. Id.
The “EAPA read as a whole supports [Customs’] strict liability
interpretation of the definition of evasion.” Ikadan Sys. USA, Inc. v. United
States, 75 CIT __, __, 639 F. Supp. 3d 1339, 1349 (2023). The Ikadan Court
emphasized that Congress did not include language “assessing an importer’s state
of mind” in this section of the statute. Id. The Ikadan Court contrasted § 1517
with § 1592, which “explicitly incorporates three levels of culpability (negligence,
gross negligence, and civil fraud).” Id. If Congress wanted to impose a culpability
requirement here, it could have; but it did not. Court No. 24-00052 Page 35
With respect to Superior’s argument that it provided sufficient evidence of
due diligence and reasonable care to defeat an evasion determination, the Court
finds that this argument fails again as it did in Ikadan. Id. at 1350.
Superior does not dispute that Kales/Engga and Strry failed to cooperate in
Customs’ EAPA investigation to the best of their abilities. Pl.’s Br. at 32.
Superior takes issue with Customs’ application of an adverse inference against
Kales/Engga and Strry “in a way that only affects [Superior], who has fully
cooperated in this investigation.” Id. Superior avers that Customs should have
applied an adverse inference against the future shipments of only Kales/Engga and
Strry. Id.
The CAFC has rejected this argument. E.g., KYD, Inc. v. United States, 607
F.3d 760, 768 (Fed. Cir. 2010); Fine Furniture (Shanghai) Ltd. v. United States,
748 F.3d 1365, 1371 (Fed. Cir. 2014). In Fine Furniture (Shanghai) Ltd. v. United
States, the plaintiff argued “that Commerce’s inferences were not adverse to the
government of China, but only to Fine Furniture because Fine Furniture was the
only party who was actually impacted by the inferences.” Fine Furniture
(Shanghai) Ltd., 748 F.3d at 1371. Fine Furniture argued that absent a finding that
it was non-cooperative, “the application of an adverse inference against Fine
Furniture is improper . . . .” Id. Court No. 24-00052 Page 36
The Fine Furniture Court held that “[a]lthough it is unfortunate that
cooperating respondents may be subject to collateral effects due to the adverse
inferences applied when a government fails to respond to Commerce’s questions,
this result is not contrary to the statute or its purposes, nor is it inconsistent with
this court’s precedent.” Id. at 1373. The Fine Furniture Court supported its
holding with its prior decision in KYD, Inc. v. United States. Id. at 1372–73. In
KYD, Inc. v. United States, the CAFC held that adverse inferences are not
improperly applied because they have a collateral impact on a cooperating party.
KYD, Inc., 607 F.3d at 768.
The CAFC reaffirmed this principal recently. In All One God Faith, Inc. v.
United States, it was clear from the record that the manufacturers did not respond
to Customs’ requests for information and failed to provide most of the information
requested; in sum, “the manufacturers were uncooperative[.]” All One God Faith,
Inc. v. United States, 129 F.4th 1350, 1358 (Fed. Cir. 2025). Customs applied an
adverse inference against the manufacturers, which had a collateral effect on the
cooperating importer. Id. The CAFC held that “Customs properly applied an
adverse inference against the manufacturer as authorized by statute, irrespective of
the conduct of other interested parties.” Id. at 1359. Court No. 24-00052 Page 37
Similarly, Customs’ application of an adverse inference against the
manufacturers was authorized by statute and was not made improper by the
collateral impact on Superior as a cooperating importer.
VI. Waiver of Counts III, IV, V, X in Complaint
The Government argues that summary judgment should be denied and
Counts III, IV, V, X in Superior’s Complaint should be dismissed. Def.’s Resp. at
32. The Government avers that Superior abandoned those claims by not providing
any argument in support of those Counts in its opening brief. Id. Superior appears
to concede this point. Pl.’s Reply. Br. at 22.
The Court notes that “issues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”
Home Prods. Int’l, Inc. v. United States, 36 CIT 665, 673, 837 F. Supp. 2d 1294,
1301 (2012) (citation omitted); SmithKline Beecham Corp. v. Apotex Corp., 439
F.3d 1312, 1319 (Fed. Cir. 2006) (It is “well established that arguments not raised
in the opening brief are waived.”). Because Superior failed to include any
arguments in support of Counts III, IV, V, X in its opening brief, summary
judgment is denied and Counts III, IV, V, and X are deemed waived and are
dismissed. Court No. 24-00052 Page 38
CONCLUSION
For the reasons set forth above, the Court sustains Customs’ final
administrative evasion determination, subject to the Court’s Opinion, and orders
Customs to rescind the interim and final enforcement measures imposed on quartz
countertop products imported by Plaintiff after September 29, 2022. Accordingly,
it is hereby
ORDERED that Plaintiff’s Motion for Judgment on the Agency Record,
ECF Nos. 21, 22, is granted in part and denied in part.
Judgment will issue accordingly.
/s/ Jennifer Choe-Groves Jennifer Choe-Groves, Judge Dated: November 26, 2025 New York, New York