Petitioner Says EAPA Statute Doesn't Require Culpability Finding
Importer Integlobal Forest failed to convincingly argue that the Enforce and Protect Act isn't a strict liability statute, petitioner Coalition for Fair Trade in Hardwood Plywood argued. The coalition said both the "plain language of the statute and the overall statutory context" show that Congress didn't mean to require culpability of an importer as a "prerequisite" to an affirmative evasion finding (American Pacific Plywood v. United States, CIT Consol. # 20-03914).
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The petitioner's arguments came amid Interglobal's challenge to CBP's finding that the importer evaded the antidumping and countervailing duty orders on hardwood plywood from China. The case was remanded to the agency to ensure its compliance with the U.S. Court of Appeals for the Federal Circuit's decision in Royal Brush Manufacturing v. U.S. and that its evasion decision is backed by substantial evidence. CBP came back to the court standing by its evasion decision (see 2405300058).
In response, Interglobal argued that EAPA isn't a strict liability statute such that it can't be found to have evaded the orders without evidence of culpability on its part. The importer challenged CBP's reliance on the trade court's decision in Ikadan Systems USA v. U.S., in which the court advanced a strict liability interpretation of the statute, as moot given that it rested on the now-overturned Chevron doctrine of deference to agencies' interpretations of ambiguous statutes.
The coalition argued in reply that the court in Ikadan cleared the new standard, recently established by the Supreme Court in Loper Bright Enterprises v. Raimondo. The Ikadan court found that "EAPA's plain language supported the conclusion that it is a strict liability statute," the petitioner said.
CIT said "Congress included no reference to culpability in its statutory definition of 'evasion,' while simultaneously including language regarding culpability in another portion of the statute," the coalition claimed. The Ikadan court also contrasted any reference to culpability in the evasion definition with CBP's civil penalty statute that explicitly includes three tiers of culpability. The Ikadan court also noted "CBP's lack of subpoena power under EAPA (in contrast with the civil penalty statute)," the brief said.
Interglobal argued that the statute's requirement that a "material and false" statement be made means there's a level of culpability prescribed to the importer's actions. In response, the coalition said no such requirement exists, since the "common definition of the word 'false' is 'contrary to what is true, erroneous.'" The petitioner said whether something is false "requires no culpability." For instance, if Interglobal said "1+1=3, its statement would be false regardless of whether it intended to convey untrue information," the brief said.
In addition, the petitioner said CBP complied with Royal Brush since CBP issued an administrative protective order on remand, giving the parties a chance to view the confidential information that CBP relied on in its original evasion decision. Also, the coalition said the evasion decision was backed by substantial evidence. While Interglobal submitted two new declarations to the record, the petitioner said "CBP appropriately found this evidence was largely duplicative of information already on the record and, if anything, lent further support to CBP's initial determination."