Countertop Importer Subject to EAPA Says It Didn't Waive CBP Initiation Deadline Argument
Chinese-origin countertop importer Superior Commercial Solutions argued Dec. 6 it hadn’t waived its challenge to the CBP regulation that allows it to initiate Enforce and Protect Act investigations based on a petition’s “date of receipt,” which is determined by the agency (Superior Commercial Solutions v. United States, CIT # 24-00052).
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Responding to U.S. opposition (see 2411180041) to its motion for judgment (see 2408080059), it said it had actually exhausted its administrative remedies. Its administrative arguments -- that CBP wrongly failed to notify it of the ongoing investigation for 140 days and that the agency’s “date of receipt” regulation violated statute -- had been “sufficient to put CBP on notice.”
The government claimed Superior never challenged the “date of receipt” regulation in its administrative briefings, the importer said. But that claim was a purely legal issue and didn’t “require the application of any special expertise by CBP or the development of additional factual record,” falling into an exception to the exhaustion doctrine.
It acknowledged that CBP’s affirmative result in the EAPA investigation wouldn’t be overturned even if the agency had failed to observe the statutory 15-day deadline for initiating investigations. But the court can consider “less drastic remedies” for such a failure, and it should hold in this case that Superior’s antidumping and countervailing duties must be reduced with respect to the entries “made during CBP’s unreasonable delay.”
The importer also took issue with CBP’s specific exhaustion regulation. First, it said the government cited the regulation, 9 C.F.R. 165.41(f), and “implies” that the case law for Commerce’s administrative exhaustion regulation applied to the issue. But CBP’s regulations, unlike Commerce’s, don’t require a request for review to make all arguments, it said.
And it said that it hadn’t had proper notice 165.41(f)(5) would be enforced in this manner. It argued that CBP’s exhaustion requirement had been unenforceable prior to Royal Bush, as interested parties couldn’t access the confidential information they might need to raise all the available arguments. That changed with the Royal Brush decision, which granted limited access to that confidential information, it said; but CBP never gave fair notice that it intended to resume enforcing its exhaustion requirement.
Its complaint to the Court of International Trade also was sound, it said, responding to the U.S.’s claim the complaint hadn’t been specific enough. It said the Supreme Court in Johnson v. City of Shelby held that procedure doesn’t require “dismissal of a complaint for imperfect statement of the legal theory supporting the claim asserted.”
It also answered the government’s opposition to its due process claim. In its reply, the U.S. denied that Superior had been deprived of its due process rights because “it is well-established that a company does not have a constitutionally protected property interest in any rate of duty, an importation, or even engaging in international trade.”
But, in Royal Brush, the Supreme Court established that “in adjudicative administrative proceedings, due process includes the right to know what evidence is being used against one,” Superior said. Under a reading of the current CBP regulations, the agency is never required to notify an importer of an investigation -- and if an importer is never notified, that protected interest is violated.
“The protected interest that the importer plaintiff in Royal Brush enjoys is the same protected interest that SCS should enjoy, which is the ‘right to notice and a meaningful opportunity to be heard,’” it said.
The court should therefore find that CBP must notify the relevant importer “at each crucial point of time throughout the investigation,” including the investigation’s initiation, it said.