Petitioner Opposes Importer's Bid to Add Procedural Claims to EAPA Case After Key CIT Ruling
AD/CVD evasion petitioner U.S. OCTG Manufacturers Association opposed a group of importers' bid for leave to amend their complaints in an Enforce and Protect Act case to add two counts to challenge CBP's initiation of the challenged EAPA investigations as "untimely" and the interim measures imposed as a violation of the importers' due process rights (LE Commodities v. United States, CIT Consol. # 25-00182).
Sign up for a free preview to unlock the rest of this article
Timely, relevant coverage of court proceedings and agency rulings involving tariffs, classification, valuation, origin and antidumping and countervailing duties. Each day, Trade Law Daily subscribers receive a daily headline email, in-depth PDF edition and access to all relevant documents via our trade law source document library and website.
The association said the Court of International Trade shouldn't allow the importers to add the two counts, since both would be dismissed for lack of standing and for failure to exhaust administrative remedies.
The case at issue concerns CBP's finding that 10 importers evaded the antidumping duty and countervailing duty orders on oil country tubular goods from China (see 2508140025). The importers' claims against the evasion finding principally focused on CBP's interpretation of the orders' scope and didn't include any due process claims.
However, that changed after CIT Judge Jennifer Choe-Groves issued a decision in another EAPA case, Superior Commercial Solutions v. U.S. In that case, Choe-Groves held that CBP's regulations regarding the notice provided to importers subject to EAPA investigations and when CBP must initiate those investigations violated an importer's due process rights (see 2511260060).
The judge said the regulation that says the agency doesn't have to provide notice to an importer subject to an evasion investigation until "no later than five business days after day 90" of an EAPA investigation is arbitrary and capricious, since it doesn't give the importer a "procedural due process right to notice and a meaningful opportunity to be heard." Choe-Groves also said CBP must start an investigation within 15 days of receiving an allegation, as the statute commands, as opposed to when the agency says it received the allegation.
After the ruling, the importers in the present case sought to add two claims to their case regarding the date on which CBP opened the investigation and the lack of notice the companies received prior to interim measures being imposed.
The petitioner said the court shouldn't let the companies amend their complaints, since they lack standing to raise either claim.
Regarding the claim on the initiation of the investigation, the association said the importers failed to identify a protected interest they had in when the EAPA investigations were initiated. The petitioner argued that the purpose of the investigation initiation requirements was to accelerate the process to "combat {} illegal trade practices" and help petitioners like U.S. Steel "respond to illegal dumping before it causes serious harm to the company and its workers."
Thus, it's the petitioner, and not the importers, that is harmed by delayed investigations and therefore the only party with a cognizable interest in challenging delayed investigations, the brief said. The association cited the trade court's decision in Diamond Tools Tech. v. U.S., which echoed these arguments and said there's "no specific indication that Congress aimed to avoid prejudicing importers with drawn-out investigations.” The petitioner said the importers not only look to rely on the interests of third parties, "they seek to appropriate the interests of an opposing party in this action."
The importers' due process claim similarly fails, since the statute "contains no requirement that the parties being investigated for evasions of U.S. law be notified in any way" prior to the requirement that notice be given no later than five days after a decision to impose interim measures has been imposed. And while the importers claim that their due process rights, established under the Fifth Amendment to the U.S. Constitution, have been violated, the importers "do not challenge the statute as unconstitutional," the petitioner said. And in any case, CIT and the U.S. Court of Appeals for the Federal Circuit have "frequently held" that due process rights aren't extended to "engaging in foreign commerce."
The importers don't even "offer up so much as 'vague assertations' of any injury they claim to have incurred due to the interim measures," the brief said. "Indeed, the term 'injury' appears nowhere in their motion to amend, nor anywhere in their complaints (amended or otherwise). What harm they are supposed to have suffered is left entirely to the imagination of the reader."
The two claims also would be dismissed for failure to exhaust administrative remedies. While the importers "rely wholly on Superior Commercial to argue that these claims are pure questions of law," the facts show that both of the companies' new claims "would require further involvement by the agency to fully develop the record and to provide the views of the agency on these issues and on the definition of terms in the statute that are at the heart of the challenges," the brief said.
And while the importers argued that Superior Commercial represents a change in the law, excusing any failure to raise the issues administratively, the petitioner said this isn't the case. Superior Commercial isn't binding precedent on the trade court, and while it's "technically true" that the decision is the "first time this Court has opined on whether CBP must comply with the 15-business day deadline," this claim "fails to recognize that this is not the first time that this Court has addressed § 1517 deadlines like that in § 1517(b)(1)," the brief said.