CIT Says Not Notifying Importer of EAPA Investigation Violates Due Process

Judge Jennifer Choe-Groves held that CBP's regulation that says the agency doesn't have to provide notice to an importer subject an antidumping or countervailing duty evasion investigation until "no later than five business days after day 90" of an EAPA investigation "is arbitrary, capricious, and not in accordance with law," since it doesn't give the importer "a procedural due process right to notice and a meaningful opportunity to be heard."

Instead of vacating the evasion proceeding under review, however, Choe-Groves ordered CBP to "rescind the interim and final enforcement measures imposed on quartz countertop products imported by" Superior water Sept. 29, 2022, the date on which the court said CBP was required to start its investigation.

At issue is CBP's finding that Superior Commercial Solutions evaded the AD/CVD orders on quartz surface products from China by undervaluation or transshipment through Vietnam. The petitioner, Cambria, filed an evasion allegation with CBP on Sept. 8, 2022. The agency acknowledged receipt of the evasion allegation on Oct. 16, 2022, and, 15 business days later, started the investigation. CBP first informed Superior it was under investigation on Jan. 26, 2023, imposing interim measures on Feb. 2, 2023.

Choe-Groves found that the agency's actions in opening the investigation and giving Superior notice constituted due process violations.

The importer argued that the statute says CBP is required to open an EAPA investigation within 15 days of receiving an allegation. While Superior argued this 15-day clock should run from the day the allegation is filed through CBP's online portal, the agency said its regulations start this window from the day CBP "provides an acknowledgment of receipt of an allegation containing all the information and certifications required."

The trade court found that CBP's regulations violate the statute. Choe-Groves held that "Congress’ intention is clear that Customs must initiate an investigation quickly, demonstrated by Congress’ addition of the specific 15-day requirement into the EAPA’s statutory text." The agency's regulations could allow it to "take a long time, for example, 12 months, to deem an allegation 'received,' and then Customs could initiate an investigation 12 months plus 15 days later."

Congress could have given CBP "unfettered flexibility in the text of the EAPA statute." Instead, Congress required CBP to initiate an investigation no later than 15 days after getting an allegation, "clearly demonstrating Congress’ expectation that an investigation would begin quickly." The judge said the agency is thus required by statute to open an investigation within 15 days of receiving an allegation, "unless there are clerical errors or the allegation is withdrawn."

The judge also held that CBP violated Superior's due process rights by failing to provide it with notice that it was under investigation. Though the EAPA statute doesn't require CBP to provide notice to the importer and notice here was given "at the time that interim measures were imposed," Choe-Groves said "a meaningful opportunity to respond should happen before a temporary deprivation takes effect, not afterwards."

Superior wasn't given a chance to "offer evidence and make administrative arguments prior to the imposition of 371.47% interim penalties on all unliquidated entries," the court noted. CBP's regulations require notice to all parties to the investigation over 90 days after the decision to open the investigation has been made, "which by definition does not allow for a party under investigation to submit any evidence or offer any administrative arguments in its defense prior to when the temporary deprivation takes effect." Choe-Groves held that this regulation is arbitrary and capricious.

In fixing a remedy for these procedural errors, the court said "precluding an EAPA investigation altogether" for these failures "is too strict a remedy." Invoking the Supreme Court's precedent in Brock v. Pierce Cnty., Choe-Groves said CIT won't limit CBP's power to take action under EAPA due to these failures, since there are “less drastic remedies available.”

Here, that remedy looks like not subjecting any entries entered after Sept. 29, 2022, the date on which CBP should have started the investigation, to any interim or final measures applying AD/CVD duties, the court said. Choe-Groves ordered such remedy after finding that Superior was prejudiced by the interim and final measures.

The court also addressed the substance of CBP’s evasion finding.

In the investigation, CBP issued requests for information to Superior; three Vietnamese exporters, namely Kales, Engga Company and Strry Manufacturing; and one Chinese exporter, Xiamen Stone Display. Xiamen didn’t respond, but the Vietnamese companies did. Starry explained that it bought the raw materials used to make its quartz slab in Vietnam, then it sent those goods to Kales and Engga, which are affiliated companies, for further processing in Vietnam. While the Vietnamese companies originally assented to an on-site visit by CBP, they withdrew their consent.

CBP thus applied an adverse inference against the Vietnamese companies, determining that all of Superior’s quartz slab goods that entered the U.S. from these companies were of Chinese origin. However, the agency said it had enough evidence without using adverse facts available to find evasion.

Choe-Groves held that CBP properly used AFA against the Vietnamese companies, not only for their refusal to allow on-site verification, but for a “pattern of deception.” CBP detailed at least eight instances where the companies “provided material false statements, omitted material statements, or attempted to conceal material facts,” including the companies’ failure to report all their affiliated companies.

While the court upheld the agency’s inference that all of the shipments from these companies were of Chinese origin, Choe-Groves disagreed with the agency’s notion that there would be enough evidence to support this inference without resorting to AFA. The judge noted that CBP only had evidence “that approximately one-third of the shipments were from China.”

The court also upheld the use of AFA against Superior, despite the fact that it’s a cooperating party, on the grounds that the U.S. Court of Appeals for the Federal Circuit has repeatedly allowed the use of AFA against cooperating parties.

(Superior Commercial Solutions v. United States, Slip Op. 25-147, CIT # 24-00052, dated 11/26/25; Judge: Jennifer Choe-Groves; Attorneys: Gregory Menegaz of the Inter-Global Trade Law Group for plaintiff Superior Commercia Solutions; Brett Shumate for defendant U.S. government)