Trade Court Grants CBP's Remand Request to Consider Royal Brush in EAPA Case

The Court of International Trade in an Oct. 20 order granted the U.S. request for a remand in an antidumping and countervailing duty evasion case to review the implications of the U.S. Court of Appeals for the Federal Circuit's ruling in Royal Brush Manufacturing v. U.S. In that decision, the appellate court found CBP's failure to grant Enforce and Protect Act respondents access to the confidential information in the proceeding violated their due process rights (Newtrend USA Co. v. United States, CIT # 22-00347).

The present case involves CBP's finding that Newtrend USA Co., Starille and Nutrawave Co. evaded the AD/CVD orders on glycine from China and, comparably to Royal Brush, saw CBP fail to grant the respondents access to the confidential information in the proceeding. The agency requested a remand following the key decision, though a dispute ensued regarding the scope of a remand period.

The plaintiffs claimed Royal Brush requires CBP to provide them with the unredacted information in the proceeding and allow the companies to submit "exculpatory" documents on the record, which the agency didn't let them do following verification. The government said the voluntary remand is a chance to consider how the opinion affects the case but doesn't allow for the submission of the exculpatory information, given that it's too late in the review.

Judge Stephen Vaden said that while remand is appropriate, the court will decline to opine at this time on "what Royal Brush or constitutional due process requires for the Plaintiffs’ arguments to be fully heard." During the remand period, "Customs should correct any errors required by Royal Brush; and the Plaintiffs may make any arguments they wish about what Royal Brush, due process generally, or Customs' regulations require." Vaden added that CBP should consider all due process and evidentiary claims, reminding the agency that, "unless its explanation is found in its redetermination, it will not be considered."

The remand period will be for 90 days.