US Seeks Remand in EAPA Case to Give Parties Summaries of BPI, Chance for Rebuttal

The Justice Department moved for a voluntary remand in a duty evasion case after finding out that the parties to the investigation were not provided with certain documents in the investigation. DOJ argued that the remand should be granted since the parties should have the chance to make arguments to CBP based on this withheld information to inform the ultimate evasion decision (Norca Industrial Company, LLC et al. v. U.S., CIT #21-00192).

The remand motion comes in a case over CBP's determination that Norca Industrial Company evaded antidumping duties on certain carbon steel butt-weld pipe fittings from China through transshipments in Vietnam. Norca was found to have evaded the duties under the Enforce and Protect Act, and the company subsequently alleged that its due process rights were violated in the process. Norca is one in a long line of importers to challenge the constitutionality of CBP's process in EAPA investigations, arguing that it was not given proper summaries of business proprietary information, nor given the opportunity to rebut the allegations made against it (see 2108230027).

That could partially change if the terms of DOJ's voluntary remand are fulfilled. In pushing the need for the remand, DOJ pointed to the case Royal Brush v. United States, which found that CBP failed to give Royal Brush the chance to be heard at a "meaningful time and in a meaningful manner when it failed to ensure that confidential filings were accompanied by the requisite public summaries," as required by law.

"In reviewing the record in this case, CBP has determined that confidential filings were not accompanied by the requisite public summaries," the motion said. Should a remand be granted, CBP's Trade Remedy & Law Enforcement Directorate will ensure that public summaries of confidential documents are provided and that the parties to the investigation will have the chance to submit rebuttal evidence and arguments. A new decision will be issued that considers the new evidence and arguments.

Counsel for Norca and consolidated plaintiff International Piping & Procurement Group indicated that they are not opposed to a voluntary remand, but believe that the remand "should extend to other issues raised in their motion," DOJ said.