DOJ Requests Remand in EAPA Case to Consider Regulatory Error Claims; Leco Supply Opposes

The U.S. requested the chance to take another look at an Enforce and Protect Act investigation to consider documents that were not sent from one CBP office to another, in a July 30 motion for remand in the Court of International Trade. The agency also sought the remand in light of the court's decision in Royal Brush v. United States, in which CIT held that CBP failed to provide adequate public summaries of business confidential information (BCI) (see 2012020050). The plaintiff in the case, Leco Supply, opposed the remand request, arguing that it is "too broad to be justifiable" under the court's standards for allowing remands (Leco Supply, Inc. v. United States, CIT #21-00136).

The case is over an EAPA investigation into antidumping and countervailing duty evasion on wire hangers from Vietnam (see 2103290031). Following the investigation, CBP's Office of Trade Trade Remedy Law Enforcement Directorate found that Leco was evading the AD/CVD duties by falsely claiming the country of origin as Laos, when the hangers were actually made in Vietnam.

CBP recently discovered, though, that certain documents in the investigation were not transmitted from CBP's Office of Trade Regulation and Rulings (R&R) to TRLED, leading the agency to have failed to consider the entire record in the investigation. CBP now wants the chance to amend that.

The second part of the remand is more broad. Given the decision in Royal Brush, CBP wants the chance to review whether it skirted EAPA regulations by failing to provide the proper public summaries of the BCI. "Leco raises nearly identical challenges here and identifies documents that it alleges were not accompanied by the requisite public summaries," the motion said. "While on remand, TRLED will review these allegations, and its compliance with 19 C.F.R. § 165.4, and take any action it believes necessary to address any lack of adherence to its regulations and resolve as appropriate."

Leco opposes this motion, however, finding that any remand instructions from the court should include considerations over whether CBP improperly treated regular information as BCI. Some instances included business confidential documents with no actually confidential information, Leco insisted. Due to this, the entire document was redacted, robbing the company of the chance to review the information and denying it the chance to submit arguments in rebuttal.

"The potential prejudicial impact of improper redaction of information, which should have remained in the public record and been made available to the interested parties, can scarcely be overstated," Leco said. "Therefore, in order to qualify as 'non-frivolous,' any remand for the purpose of reviewing compliance with 19 C.F.R. § 165.4 must include a detailed review of the confidential record to determine whether all designations of business confidential information are in compliance with the regulatory definition." Also, the remand proceedings should include a chance for Leco to submit comments, the company said.