Aspects Furniture International, plaintiff in an Enforce and Protect Act case, is waiving its arguments about CBP's lack of public summaries in an evasion proceeding, the plaintiff told the Court of International Trade in a Dec. 20 motion. Asking the court to partially waive its November order on the public summaries, Aspects said that, because CBP is reopening the record to allow revised public versions of certain documents to be submitted and requesting that the plaintiff resubmit most of the public version submissions made during the investigation, the court's order is no longer needed (Aspects Furniture International v. United States, CIT # 20-03824).
EAPA Litigation
Under the Enforce and Protect Act, CBP investigates whether a company is evading particular antidumping and countervailing duty orders. Litigation on determinations made under the relatively new statute have centered on due process protections for respondents, CBP's evidentiary basis for its decisions and the interplay of decisions made on the scope of the applicable AD/CVD orders from both CBP and the Commerce Department. The Court of Appeals for the Federal Circuit issued a key decision for all EAPA cases in Royal Brush Manufacturing v. United States, when it found CBP to have violated a respondent's due process protections by failing to provide it with access to the business proprietary information used in the proceeding.
The U.S. asked the U.S. Court of Appeals for the Federal Circuit on Dec. 7 for leave to file a motion to dismiss in a case on an Enforce and Protect Act evasion finding, given that all the entries at issue have been liquidated. While Royal Brush does not oppose the motion for leave to file the dismiss bid, the appellant did tell the U.S. it will oppose the motion to dismiss itself. Prior to the appeal, the Court of International Trade had ruled CBP violated Royal Brush's due process rights by not providing adequate public summaries of confidential information (Royal Brush Manufacturing v. United States, CIT #22-1226).
CBP failed to provide public summaries of the confidential information in an Enforce and Protect Act antidumping duty evasion investigation, the Court of International Trade ruled in a Nov. 28 opinion. Judge Jennifer Choe-Groves sent back parts and upheld parts of the EAPA finding, ultimately also remanding CBP's decision to retroactively cover entries made before the EAPA statute came into force and include merchandise found by the Commerce Department in a scope ruling to not be covered by the order.
CBP unlawfully began an Enforce and Protect Act investigation into CEK Group since the allegation submitted by M&B Metal Products didn't support the start of the investigation, CEK Group argued in a Sept. 12 motion for judgment at the Court of International Trade. To start an EAPA action, there must be an allegation with specific information -- something CBP did not receive from M&B, the brief said. The plaintiff said the Royal Brush v. U.S. case at the trade court "has now constrained CBP" in EAPA cases from making decisions based on confidential information not made available to the parties via public summaries -- something CBP allegedly did in CEK Group's case (CEK Group v. U.S., CIT #22-00082).
The U.S., in defending its affirmative evasion finding in an Enforce and Protect Act case against Leco Supply, unlawfully seeks to rely on adverse inferences that CBP did not make while also conflating CBP's error in failing to follow its own regulations over the redaction of non-business confidential information with the due process violations that stem from its failure to follow those regulations, Leco argued. Submitting a reply brief at the Court of International Trade, Leco continues to pursue its constitutional claims against CBP's evasion proceeding while tackling the agency's evidentiary basis for the evasion finding and its use of adverse inferences (Leco Supply v. U.S., CIT #21-00136).
The U.S. Court of Appeals for the Federal Circuit owes no deference to CBP's procedures in an antidumping and countervailing duty evasion investigation since those procedures violated importer Royal Brush Manufacturing's due process rights, the importer argued in a June 30 reply brief. Royal Brush also argued that CBP's decision to not give the importer access to business confidential information in the Enforce and Protect Act proceeding is a problem of CBP's own creation, and that the U.S. offers insufficient defenses of the company's constitutional due process claims (Royal Brush Manufacturing Inc. v. U.S., Fed. Cir. #22-1226).
Importer Royal Brush Manufacturing failed to show that the Court of International Trade wrongly held that CBP did not violate the company's due process rights in an Enforce and Protect Act investigation, the U.S. argued in a June 9 reply brief at the U.S. Court of Appeals for the Federal Circuit. In its opening brief, Royal Brush failed to cite "any legal authority" to back its theory that the trade court erred in shielding the business confidential information (BCI) from disclosure, DOJ said (Royal Brush Manufacturing Inc. v. United States, Fed. Cir. #22-1226).
There is no exception for business confidential information to the requirement that CBP provide a company subject to an antidumping duty and countervailing duty evasion investigation access to the evidence on which the agency relies, importer Royal Brush told the U.S. Court of Appeals for the Federal Circuit in a Feb. 4 opening brief. CBP's denial of Royal Brush's access to the BCI in the Enforce and Protect Act investigation violated its due process rights and created a "flawed process for adjudicating complaints of duty evasion," the brief said (Royal Brush Manufacturing Inc. v. United States, Fed. Cir. #22-1226).
The lack of access to business confidential information (BCI) in an antidumping and countervailing duty evasion investigation violated wire hanger importer Leco Supply's due process rights, the importer told the Court of International Trade in a Jan. 24 brief. Responding to CBP's remand results in which it took another look at its initial finding of evasion under the Enforce and Protect Act, Leco said its lack of access to confidential information and the withholding of information not entitled to confidentiality at the administrative level "clearly risked erroneous deviation of Leco's private interests," the brief said. An administrative protective order issued during EAPA investigations would end this concern, the importer told the trade court (Leco Supply v. U.S., CIT #21-00136).
CBP failed to require that a company accused of evasion of antidumping and countervailing duties provide adequate public summaries of its confidential information, and the agency also failed to properly review the administrative record, the Ad Hoc Shrimp Trade Enforcement Committee (AHSTEC) told the Court of International Trade in a Jan. 10 reply to briefs submitted by the Justice Department and defendant-intervenors MSeafood Corp. and Minh Phu Seafood (Ad Hoc Shrimp Trade Enforcement Committee v. United States, CIT #21-00129).