Importer Says CBP's EAPA Investigations Deny Constitutional Due Process Rights

A furniture importer filed a wide-ranging legal challenge on Nov. 4 of CBP’s regulations and procedures for Enforce and Protect Act investigations. Aspects Furniture says the 2016 law, as well as CBP’s regulations and policies implementing it, deprived it of its constitutional due process rights. The importer also says CBP misapplied deadlines and relied on hearsay and unsupported claims to find it evaded AD duties. CBP found Aspects evaded antidumping duties on wooden bedroom furniture from China in an EAPA determination finalized in May (see 2005220029).

According to Aspects, the “EAPA statute denies the parties subject to EAPA investigations procedural due process protections otherwise owed to such parties under the Constitution of the United States.” EAPA includes no mechanism through which Aspects could access the complete and unredacted record behind CBP’s determination. That’s in contrast to Commerce Department AD/CVD investigations and reviews, which give all parties access to business confidential information through their attorneys,” Aspects said.

“By failing to provide for such due process, the EAPA statute has deprived Aspects of its private interest to be presented with all the evidence being gathered against it, so as to allow Aspects to effectively defend itself against an allegation of evasion; depriving Plaintiff of both liberty and property interests protected and guaranteed by the United States Constitution,” the complaint said.

CBP’s regulations also run afoul of due process protections for the same reason, and also because they allowed the agency to impose “interim measures” before Aspects was given an opportunity to respond to its allegations. And CBP’s own excessive redactions in the proceeding and refusal to release “crucial evidence” likewise prevented the importer from putting up an adequate defense, Aspects said.

CBP also ran afoul of deadlines when it included some of Aspects’ entries in the evasion determination. While EAPA was not enacted as part of the Trade Facilitation and Trade Enforcement Act until Feb. 24, 2016, and did not take effect until August of that year, CBP wrongly included entries from January through August in its investigation. CBP was also barred from looking at entries before Commerce began a scope ruling based on a CBP referral (see 2001090054). The courts have ruled that, where the scope is ambiguous, liquidation may only be suspended beginning on the initiation date of a scope ruling.

Finally, Aspects says that CBP did not provide enough evidence to support its conclusions, and relied on hearsay for a key finding that Aspects employees destroyed evidence under the nose of a CBP verification. Aspects also says CBP improperly combined its EAPA investigation with a regulatory audit, depriving “Aspects of certain procedural protections it may have otherwise been entitled to,” the complaint said.

Email ITTNews@warren-news.com for a copy of the complaint.