Importers Must Wait for End of EAPA Investigation to Challenge in Court, CIT Says
The Court of International Trade on July 31 dismissed a challenge to an ongoing Enforce and Protect Act investigation of antidumping duty evasion, finding the importer must wait for the EAPA investigation to conclude before the court can have jurisdiction to decide the lawsuit.
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Far East American (FEA), Interglobal Forest (IGF) and Liberty Woods, three importers of plywood subject to an evasion investigation of plywood exported by Vietnam Finewood, say CBP has far overshot EAPA’s statutory deadlines in the investigation, which began in November 2018 (see 1811280010). Per the 360-day clock for EAPA investigations, CBP should have issued its final determination by Sept. 16, 2019.
Part of the issue was that, as the investigation was reaching its conclusion in August 2019, CBP sent a “draft” referral to the Commerce Department for the latter agency to conduct a scope ruling in connection with the case. While the draft referral said it should be taken as CBP’s formal request, the final, revised referral wasn’t sent until Sept. 16, 2019, the day the investigation was supposed to conclude. By law, scope referrals effectively pause the clock on EAPA investigations. The deadline for Commerce’s scope ruling was recently pushed back to April 5, 2021.
FEA, IGF and Vietnam Finewood filed suit in December 2019, and were subsequently joined by Liberty Woods. They filed their lawsuit under CIT’s 28 USC 1581(i) “residual” jurisdiction, which is only available if all other routes to the court are not.
CIT found its 28 USC 1581(c) jurisdiction for normal AD/CVD cases is available, meaning it can’t proceed with the lawsuit. The laws underlying EAPA investigations provide for judicial review under Section 1581(c), which may occur only after the final determination is issued and an administrative appeal to CBP fails.
In this case, CBP paused the deadline for its final determination by issuing a scope referral; whether that referral came weeks or hours before the deadline, depending on which request to Commerce should apply, does not change that, CIT said. If FEA, IGF, Vietnam Finewood and Liberty Woods want to challenge the results of the investigation, or any of CBP’s decisions during its course, it can wait for the investigation to end, appeal, and if unsuccessful, file suit under CIT’s normal AD/CVD jurisdiction, the trade court said.
(Vietnam Finewood Co. v. U.S., Slip Op. 20-106, CIT # 19-00218, dated 07/31/20, Judge Barnett)