DOJ's EAPA Due Process Arguments Ignore Due Process Rights From Other Laws, Plaintiffs Tell CIT

The Department of Justice's and defendant-intervenor Coalition for Fair Trade in Hardwood Plywood's arguments in favor of CBP's affirmative antidumping duty and countervailing duty evasion finding ignore the procedural rights afforded by the Administrative Procedure Act, plaintiffs American Pacific Plywood and U.S. Global Forest said in a Jan. 24 brief. DOJ and the coalition argue that the plaintiffs are only entitled to what the Enforce and Protect Act statute prescribes, but American Pacific Plywood and U.S. Global Forest said this ignores the plaintiffs' other due process rights (American Pacific Plywood v. U.S., CIT Consol #20-03914).

The plaintiffs' brief bolsters its original criticism of CBP's conduct during the EAPA investigation into evasion of the ADD/CVD orders on hardwood plywood from China (see 2108110034). In the investigation, CBP said that the plaintiffs were evading these duties by transshipping their hardwood plywood through Cambodia. The plaintiffs said they merely moved their factories from China to Cambodia to skirt the duties in a move following the "hallowed tradition of enterprising American capitalism."

Due to EAPA regulations, CBP was able to impose interim measures without timely notification to plaintiffs, a due process violation, according to American Pacific Plywood and U.S. Global Forest. The plaintiffs also argued that CBP violated their due process rights by failing to provide them with access to business proprietary information. In its response, DOJ said that the statute "broadly authorizes CBP" to carry out its investigations in this way (see 2112130027), tapping a recent CIT decision that dismissed the plaintiffs' very arguments -- in particular, the ones over the temporary interim measures (see 2111050040).

The plaintiffs responded that DOJ's and the coalition's position that the plaintiffs are only afforded the due process rights laid out in the EAPA statute is unreasonable. "In any event, Defendant’s statutory reference does not address the issues of notice and opportunity to defend against an allegation of evasion before the imposition of interim measures, including the exporter’s and importer’s right to bear witness to CBP’s site visit methodologies and findings with its own counsel and translators," the brief said.

American Pacific Plywood and U.S. Global Forest said that CBP cannot rely on the "silence of the EAPA statute" to decide when to tell the plaintiffs they were subject to an ADD/CVD evasion investigation and whether to allow their counsel to gain access to business confidential information under an administrative protective order. "In sum, Plaintiffs suffered irreparable harm from CBP’s failure to provide notice of its initiation of [the EAPA case] before CBP imposed interim measures and from CBP’s failure to provide an APO for legal counsel’s access to confidential information in order to adequately defend against the allegation of evasion," the brief said.