Many EAPA Questions Remain Open; Litigation Seen Necessary to Provide Eventual Clarity, Lawyers Say

A wide range of legal issues around CBP's new processes for antidumping or countervailing duty evasion allegations under the Enforce and Protect Act (see 1608190014) (EAPA) will require litigation to clarify, panelists said March 9 at the International Trade Update. For example, if CBP decides to impose higher bonding requirements on an alleged evader, can the importer then file for a temporary restraining order or preliminary injunction with the Court of International Trade to stop CBP, asked Jonathan Stoel, a lawyer with Hogan Lovells. Practical scenarios like that will need to be played out to give a better look at the possible strategies for lawyers involved, according to panelists at the event hosted by the Georgetown University Law Center.

There's also some question as to the best way to respond to an allegation once underway, said Stoel, who has represented foreign companies in past trade remedy cases. Given the risks involved, including CBP requests for cash deposits or single transaction bonds for any potentially owed AD or CV duties, that response can be very important to the entire proceeding, he said. Still unclear is whether an accused evader that provides information in response has "waived privilege" or the right to self-incriminate, Stoel said. "There's a lot of different things that may play into your big picture views of whether you're going to participate and how much," he said.

The EAPA procedures seem likely to "push everybody to the courts," due in part to the lack of an administrative protective order (APO) process to guarantee confidentiality in AD/CVD proceedings, said Nathaniel Rickard, a lawyer with Picard Kentz who has represented domestic industry clients in other venues. "The only way you will be able to look at the entire record that is before CBP if you are a party that is participating in it is if you can get to the Court of International Trade, get a judicial protective order and then, for the first time, review that record on appeal." The lack of APOs was a complaint of many commenters on the interim regulations (see 1612270018).

Given that the appeal may be the first time an involved party can view the full record, it could be "almost two years before you know what this case is all about," Stoel said. "That's a very interesting fact and for those of us who are used to litigating with one hand tied behind your back, you might have both hands tied behind your back in this case." There's also some question as to the standard for judicial review involved, said Justin Miller, senior trial counsel for international trade at the Justice Department, who spoke on his own behalf and not the DOJ's. "I do believe because the statute has specifically provided for the nature of the judicial review, that the drafters intended to limit it to those limited instances alone, but I'm sure that will be litigated out."

CIT Judge Leo Gordon asked the panel how they envision the injunctive process once judicial review begins. "Is it going to operate much like statutory injunctions do in traditional" AD/CV litigation or would it be closer to the injunction standards used in other trade cases, he asked. Miller responded that "I think we would be faced with something similar to the typical trade context where injunctive relief would have to occur at the court in order to prevent liquidation."

There's some potential for antitrust issues to occur within an EAPA investigation, Stoel said. "If you're looking at something where you might need domestic producers and foreign competitors potentially to be working together to identify violations, I hesitate to say this in a room with so many many people from DOJ, you probably want some antitrust folks involved, given that anything that would implicate volumes or pricing" in the U.S. could create some concerns, he said.