EAPA Respondents Say Courts Can Order Reliquidation, in Bid to Establish Jurisdiction at CAFC
The government incorrectly claimed that there are two separate jurisdictional paths for contesting Enforce and Protect Act decisions, appellants Ascension Chemicals, UMD Solutions, Crude Chem Technology and Glob Energy Corp. argued in a reply brief at the U.S. Court of Appeals for the Federal Circuit (All One God Faith v. United States, Fed. Cir. # 23-1078).
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The U.S. said the Court of International Trade was right to dismiss the case contesting CBP's evasion finding on the appellants' xanthan gum shipments for lack of jurisdiction since Glob's entries were erroneously liquidated and not properly appealed via a protest (see 2306080049).
Glob replied by saying that the trade court has the authority to order reliquidations. When drafting the EAPA legislation, the House of Representatives said that if the Commerce Department makes a final evasion finding, CBP will then assess the appropriate duties on entries, including already liquidated ones. While the Senate dropped this language, Glob said that under federal regulations "it is clear that CBP’s authority to reliquidate is limited [to] entries within 90 days from the date notice of deemed liquidation or notice of the original liquidation," and that the courts can order reliquidation.
In the investigation, CBP said Glob evaded antidumping duties on xanthan gum from China via India. As part of its claims at CIT and now the Federal Circuit, the appellants said CBP should have referred the question of whether the goods at issue were considered covered merchandise to Commerce. CBP said in reply that it was under no obligation make a refferal to Commerce under the EAPA statute. The appellants again disagreed, noting that while it requested a referral, the EAPA statute says CBP must refer the matter. Glob added that the government is "heavily hampered" by both short data submission timelines and hard stops on data submissions.