CBP Failed to Satisfy Due Process Concerns in EAPA Remand, Pencil Importer Argues

Following a court-ordered remand to address due process concerns in an Enforce and Protect Act case, CBP has failed again to provide Royal Brush Manufacturing “notice and a meaningful opportunity to be heard,” the importer argued in an April 26 response to CBP's remand redetermination. Despite some changes to comply with the Court of International Trade decision that found fault with CBP's finding that Royal Brush evaded antidumping duties on cased pencils from China by way of transshipment through the Philippines, Royal Brush continued to take issue with CBP's public summaries of key case information and the agency's failure to properly notify the company when new factual information surfaced via a verification report.

CBP's “revised” public summaries did not provide any additional information on the substance of redacted information, Royal Brush argued. And the importer says CBP continues to rely on undisclosed information to support its evasion finding. “Royal Brush cannot respond to this critical quantitative evidence without knowing what the relevant figures are,” the company said. “Accordingly, Royal Brush contends that CBP relied on an unrepresentative sample of data to construct the equation it used to calculate overall production capacity. But the public summaries prepared by CBP on remand deprive Royal Brush of the ability to make any of these responses.” CBP refuses to disclose certain nonconfidential information, including the country of destination for boxes containing the “Made in China” pencils, the type of completed pencil product contained in the boxes the agency observed at the Philippines facility and the overall condition of the boxes used to store the product, Royal Brush said.

Royal Brush also took issue with CBP's claim that a Verification Report issued as part of the investigation had “no new factual information,” stripping the importer of the chance to receive adequate notice and opportunity to respond as required by due process. The report did include new information, Royal Brush said, since CBP did not have data about the Philippine manufacturer's production capacity before the report. “It is therefore incredible for CBP to claim that the data in the Verification Report about the overall production capacity of the Philippine Manufacturer was not new factual information to which Royal Brush is entitled to respond.”