The U.S. asked the Court of International Trade for a voluntary remand in an Enforce and Protect Act case to consider the U.S. Court of Appeals for the Federal Circuit's key decision in Royal Brush Manufacturing v. U.S. In that decision, the appellate court said that CBP violated an EAPA respondent's due process rights by not providing it access to the confidential business information in the case (see 2307270038) (Phoenix Metal Co. v. United States, CIT # 23-00048).
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 for a voluntary remand at the U.S. Court of Appeals for the Federal Circuit in an Enforce and Protect Act case to discuss the legal effects of the Royal Brush Manufacturing v. U.S. decision. In Royal Brush, the appellate court said CBP violated an EAPA respondent's due process rights by not granting it access to the business confidential information in the proceeding (see 2307270038). Importer Skyview Cabinet USA consented to the motion, while the petitioner, MasterBrand Cabinets, took no position (Skyview Cabinet USA v. U.S., Fed. Cir. # 23-2318).
The Court of International Trade in an Oct. 20 order granted the U.S. request for a remand in an antidumping and countervailing duty evasion case to review the implications of the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. U.S. In that decision, the appellate court found CBP's failure to grant Enforce and Protect Act respondents access to the confidential information in the proceeding violated their due process rights (Newtrend USA Co. v. United States, CIT # 22-00347).
The U.S. Court of Appeals for the Federal Circuit in an Oct. 17 order granted a stay in a case on the Enforce and Protect Act investigation on the alleged transshipment of Chinese xanthan gum via India until 30 days after all appeals are foreclosed in the key Royal Brush Manufacturing v. United States case. In Royal Brush, the appellate court said that CBP violated an importer's due process rights in an EAPA investigation by not providing that company access to the business confidential information in the proceeding (see 2307270038) (All One God Faith v. United States, Fed. Cir. # 23-1078, -1081).
A proposed voluntary remand of an Enforce and Protect Act case should be allowed to proceed as is, over an importer's objections, DOJ said in an Oct. 2 brief to the Court of International Trade. DOJ filed a motion to remand the case in light of the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. U.S., in which the court said CBP violated an EAPA party's due process rights by not granting them access to business confidential information (see 2309150011) (Newtrend USA Co. v. U.S., CIT # 22-00347).
The scope of the U.S. government's remand request in an Enforce and Protect Act case in light of the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. U.S. is "not appropriate," plaintiffs led by Newtrend USA Co. said in a Sept. 18 reply brief. The government didn't say whether on remand it will put on the record "the exculpatory documents that Plaintiffs" gave to CBP during verification that the agency "refused to allow in the original proceeding," nor did it say whether it would allow additional briefing on those materials, the brief said (Newtrend USA Co. v. United States, CIT # 22-00347).
The U.S. filed a motion to remand an Enforce and Protect Act case in light of the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. United States, in which the appellate court said CBP violated an EAPA party's due process rights by not granting them access to business confidential information. Filing the Sept. 14 motion in a Court of International Trade case filed by importer Newtrend USA Co., the government claimed that a limited remand is needed because the opinion concerns "the treatment of confidential information" (Newtrend USA Co. v. United States, CIT # 22-00347).
The U.S. asked for a stay of a case at the U.S. Court of Appeals for the Federal Circuit on an Enforce and Protect Act investigation on the alleged transshipment of Chinese xanthan gum via India. The government said the case should be suspended until the Royal Brush Manufacturing v. U.S. matter is resolved (All One God Faith v. United States, Fed. Cir. #s 23-1078, -1081).
CBP's failure to timely release documents in an Enforce and Protect Act investigation deprived importer Phoenix Metal of its right to defend against the agency's allegation that it transshipped in order to avoid paying antidumping and countervailing duties (see 2303030049), Phoenix said in an Aug. 9 motion for judgment at the Court of International Trade. The company said it had no chance to respond to allegations of evasion before "severe enforcement measures" were put in place, adding that CBP's "only purpose" in EAPA investigations "is to operate in the shadows and shun inconveniences like the [Administrative Procedure Act] and due process of law" (Phoenix Metal v. U.S., CIT # 23-00048).
The U.S. Court of Appeals for the Federal Circuit officially issued its order vacating and remanding the Court of International Trade's opinion upholding CBP's evasion finding for importer Royal Brush Manufacturing. The Aug. 1 order came a few days after the court's consequential opinion, which said CBP violated Royal Brush's due process rights by not giving it access to confidential information in the Enforce and Protect Act investigation into the company (see 2307270038). The order remands the antidumping and countervailing duty evasion case so the agency can make the whole record available to the importer (Royal Brush Manufacturing v. United States, Fed. Cir. # 22-1226).