Proposed Remand in EAPA Case Should Go Forward, DOJ Says

A proposed voluntary remand of an Enforce and Protect Act case should be allowed to proceed as is, over an importer's objections, DOJ said in an Oct. 2 brief to the Court of International Trade. DOJ filed a motion to remand the case in light of the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. U.S., in which the court said CBP violated an EAPA party's due process rights by not granting them access to business confidential information (see 2309150011) (Newtrend USA Co. v. U.S., CIT # 22-00347).

Newtrend opposed the remand, arguing that CBP should provide access to confidential information and give parties a chance for rebuttal, as in the Royal Brush decision (see 2309200049).

DOJ disagreed, saying that, in this case, CBP chose not to accept certain information presented at the time of verification, making the requested rebuttal submissions moot. Newtrend appears to argue that CBP should be forced to accept new information without restriction during an EAPA investigation, but nothing in the statute allows an importer to mandate that Customs accept information on the record, DOJ said.

"If Newtrend believed the documents it now wants to submit on a remand record were exculpatory and important to [Customs'] evasion determination, then it should have timely submitted them as voluntary factual information," DOJ said. There is no basis for the request that Newtrend have "carte blanche ability" to submit information "at (or after) the verification that it deems exculpatory, nor can it force Customs to accept information that Customs previously did not place on the record and did not rely on in making the evasion determination," DOJ said.

There also is no need to submit rebuttal information because CBP didn't rely on any new data in the verification report, DOJ said.

In its own reply, defendant-intervenor Geo Specialty Chemicals said that Newtrend's arguments in its motion to reconsider the remand order don't negate the "established principle that good faith requests by administrative agencies for voluntary remands are, as a general matter, to be granted by reviewing courts."