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CIT Finds No EAPA Lawsuit Possible for Importer After Liquidated Entries Not Challenged

The Court of International Trade on Aug. 18 dismissed a lawsuit filed by the maker of Dr. Bronner’s Magic Soaps and other importers to challenge an Enforce and Protect Act determination that they evaded antidumping duties on xanthan gum from China. The trade court found the soapmaker, All One God Faith, as well as another importer did not file suit under jurisdiction provisions for denied protests, and so could not overcome the erroneous liquidation of their entries by CBP.

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All One God Faith, Glob Energy, Ascension Chemicals, UMD Solutions and Crude Chem Technology had all been found by CBP to have transshipped Chinese xanthan gum through India to avoid antidumping duties. They filed suit under 28 USC 1581(c), the CIT jurisdiction provision for challenging EAPA cases. But in the meantime, CBP had “evidently in error” liquidated the five entries subject to the customs agency’s evasion finding, according to the government. While All One God Faith and Glob Energy protested the liquidation, they did not challenge the denied protest, which CBP had denied “in light of the issuance of the initial EAPA determination” in March 2020, CIT said.

“The court lacks subject-matter jurisdiction over Dr. Bronner’s and Glob’s claims because the liquidation of the relevant entries is final and conclusive,” CIT Judge Gary Katzmann said in the decision. “As stated above, the court’s jurisdiction over a determination of evasion … does not independently permit review of the erroneous liquidation of merchandise subject to that determination. Rather, the court may only review a claim of erroneous liquidation where that liquidation has been timely protested and the denial of such protest appealed.”

CIT also granted judgment to the government for the other three importers that had challenged the EAPA determination. Ascension, UMD and Crude Chem had argued that the AD petitioner, CP Kelco, no longer produced the type of xanthan gum they had imported, and CBP, rather than find evasion, was required to refer the matter to Commerce for a changed circumstances review.

The three remaining plaintiffs’ argument, however, was premised on a single email that did not definitively show CP Kelco no longer produced the merchandise. And even if it did, CBP was not required to refer the matter to Commerce, and any changed circumstances review would not have applied retroactively. At the time of entry, the xanthan gum at issue in the EAPA determination was subject to antidumping and countervailing duties, CIT said.

(All One God Faith, Inc. v. U.S., Slip Op. 22-96, CIT # 20-00164, dated 08/18/22. Attorneys: Laura Moya of the law offices of Robert Snyder for plaintiff All One God Faith; Kyl Kirby for consolidated plaintiffs Ascension Chemicals, UMD Solutions, Glob Energy and Crude Chem Technology; Kelly Krystyniak for defendant U.S. government; Matthew Clark of ArentFox for defendant-intervenor CP Kelco)