Importer Contests Scope of Proposed Remand in EAPA Case in Wake of Royal Brush Ruling

The scope of the U.S. government's remand request in an Enforce and Protect Act case in light of the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. U.S. is "not appropriate," plaintiffs led by Newtrend USA Co. said in a Sept. 18 reply brief. The government didn't say whether on remand it will put on the record "the exculpatory documents that Plaintiffs" gave to CBP during verification that the agency "refused to allow in the original proceeding," nor did it say whether it would allow additional briefing on those materials, the brief said (Newtrend USA Co. v. United States, CIT # 22-00347).

The U.S. asked for the remand to enter a protective order given that the appellate court said failing to grant an EAPA party access to business confidential information violates its due process rights (see 2307270038). Newtrend said CBP shouldn't stop at setting up a protective order, noting that the Royal Brush decision tells CBP to provide access to the confidential information and give parties a chance for rebuttal.

"In summary, the Court should direct Defendant, on remand, to allow parties to submit additional factual information that is relevant to the information newly disclosed under the Protective order, including rebuttal factual information concerning information presented to Customs during the verification," the brief said.