Slip Op. 20-

UNITED STATES COURT OF INTERNATIONAL TRADE 

ROYAL BRUSH MANUFACTURING, 

INC., 

 Plaintiff, 

 v. 

UNITED STATES, 

 Defendant, 

 and 

DIXON TICONDEROGA CO., 

 Defendant-Intervenor. 

Before: Mark A. Barnett, Judge 

Court No. 19-00198 

OPINION AND ORDER 

[Remanding U.S. Customs and Border Protection’s affirmative determination as to 

evasion in EAPA Case No. 7238.] 

Dated: December 1, 2020 

Ronald A. Oleynik, Holland & Knight LLP, of Washington, DC, argued for Plaintiff. With 

him on the brief were Antonia I. Tzinova, Liliana V. Farfan, and Dariya V. Golubkova. 

Ashley Akers, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC, argued for Defendant. With her on the brief 

were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and 

Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Joseph F. Clark, 

Attorney, Office of the Chief Counsel, U.S. Customs and Border Protection. 

Felicia L. Nowels, Akerman LLP, of Tallahassee, FL, argued for Defendant-Intervenor. 

With her on the brief was Sheryl D. Rosen. 

Barnett, Judge: This matter is before the court on Plaintiff Royal Brush 

Manufacturing, Inc.’s (“Royal Brush”) motion for judgment on the agency record 
Court No. 19-00198 Page 2 

pursuant to U.S. Court of International Trade (“USCIT” or “CIT”) Rule 56.2. Confidential 

Pl. [Royal Brush’s] Mot. for J. on the Agency R., ECF No. 33. Royal Brush challenges 

U.S. Customs and Border Protection’s (“Customs” or “CBP”) affirmative determination of 

evasion of the antidumping duty order on certain cased pencils from the People’s 

Republic of China (“China”) issued pursuant to Customs’ authority under the Enforce 

and Protect Act (“EAPA”), 19 U.S.C. § 1517 (2018).1 Confidential Pl. [Royal Brush’s] 

Mem. in Supp. of its Mot. for J. on the Agency R. (“Pl.’s Mem.”) at 1, ECF No. 33-1.2 

Customs issued two relevant determinations: (1) Notice of Final Determination as to 

Evasion, EAPA Case No. 7238 (May 6, 2019) (“May 6 Determination”), CR 131, PR 57; 

and (2) Decision on Request for Admin. Review, EAPA Case No. 7238 (Sept. 24, 2019) 

(“Sept. 24 Determination”), PR 64 (Customs’ de novo review of the May 6 

Determination). 

Royal Brush raises four overarching challenges to Customs’ evasion 

determination. Royal Brush argues that: (1) Customs improperly rejected Royal Brush’s 

 

1 All citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, 

and all references to the U.S. Code are to the 2018 edition unless otherwise specified. 

EAPA was enacted as part of the Trade Facilitation and Trade Enforcement Act of 

2015, Pub. L. No. 114–125, § 421, 130 Stat. 122, 161 (2016). 

2 The administrative record for the underlying proceeding is contained in a Confidential 

Administrative Record (“CR”), ECF Nos. 24-1 (CR 1–12), 24-2 (CR 13–14), 24-3 (CR 

15–19), 24-4 (CR 20–27), 24-5 (CR 28–34), 24-6 (CR 35–37), 24-7 (CR 38–41), 24-8 

(CR 42–44), 24-9 (CR 45–47), 24-10 (CR 48–50), 24-11 (CR 51), 24-12 (CR 52–54), 

24-13 (CR 55–57), 24-14 (CR 58–69), 24-15 (CR 70–86), 24-16 (CR 87–122), 24-17 

(CR 123–24), 24-18 (CR 125–26), 24-19 (CR 127–32), and a Public Administrative 

Record (“PR”), ECF Nos. 23-1 (PR 1–35), 23-2 (PR 36–43), 23-3 (PR 44–64). The 

court references the confidential version of the record document unless otherwise 

specified. 
Court No. 19-00198 Page 3 

filing seeking to rebut purportedly new factual information contained in Customs’ 

verification report, Pl.’s Mem. at 9–13; (2) CBP denied Royal Brush procedural due 

process and redacted material evidence in an arbitrary and capricious manner, id. at 

13–20; (3) CBP’s use of an adverse inference constituted an abuse of discretion and 

was arbitrary and capricious, id. at 20–24; and (4) Customs drew irrational conclusions 

from the available evidence, id. at 24–26; see also Confidential Reply Br. of Pl. [Royal 

Brush] (“Pl.’s Reply”), ECF No. 43. Defendant United States (“the Government”) and 

Defendant-Intervenor Dixon Ticonderoga Company (“Dixon”) urge the court to sustain 

Customs’ evasion determination. Confidential Def.’s Resp. in Opp’n to Pl.’s Mot. for J. 

on the Agency R. (“Def.’s Resp.”), ECF No. 38; Def.-Int.’s Resp. in Opp’n to Pl.’s Mot. 

for J. on the Agency R. (“Def.-Int.’s Resp.”), ECF No. 40. For the following reasons, the 

court remands Customs’ determination for reconsideration and further explanation 

regarding the aforementioned arguments (1) and (2) and defers resolution of arguments 

(3) and (4) pending Customs’ redetermination. 

BACKGROUND

I. Legal Framework for EAPA Investigations 

As noted, EAPA investigations are governed by 19 U.S.C. § 1517.3 Section 

1517 directs Customs to initiate an investigation within 15 business days of receipt of an 

allegation that “reasonably suggests that covered merchandise has been entered into 

 

3 On August 22, 2016, CBP promulgated interim regulations that further guide Customs’ 

conduct of EAPA investigations. See Investigation of Claims of Evasion of Antidumping 

and Countervailing Duties, 81 Fed. Reg. 56,477 (CBP Aug. 22, 2016) (interim 

regulations; solicitation of cmts.); 19 C.F.R. pt. 165 (2017). 
Court No. 19-00198 Page 4 

the customs territory of the United States through evasion.” 19 U.S.C. § 1517(b)(1). 

“Covered merchandise” refers to “merchandise that is subject to” antidumping or 

countervailing duty orders issued pursuant to 19 U.S.C. § 1673e or 19 U.S.C. § 1671e, 

respectively. Id. § 1517(a)(3). “Evasion” is defined as: 

entering covered merchandise into the customs territory of the United 

States by means of any document or electronically transmitted data or 

information, written or oral statement, or act that is material and false, or 

any omission that is material, and that results in any cash deposit or other 

security or any amount of applicable antidumping or countervailing duties 

being reduced or not being applied with respect to the merchandise. 

 

Id. § 1517(a)(5)(A).4

Once Customs initiates an investigation, it has 90 calendar days to decide “if 

there is a reasonable suspicion that such covered merchandise was entered into the 

customs territory of the United States through evasion” and, if so, to impose interim 

measures. Id. § 1517(e). Interim measures consist of: 

(1) suspend[ing] the liquidation of each unliquidated entry of such covered 

merchandise that entered on or after the date of the initiation of the 

investigation; (2) . . . extend[ing] the period for liquidating each 

unliquidated entry of such covered merchandise that entered before the 

date of the initiation of the investigation; and (3) . . . such additional 

measures as [Customs] determines necessary to protect the revenue of 

the United States . . . . 

Id. 

Pursuant to section 1517(c), Customs’ determination whether covered 

merchandise entered the United States through evasion must be “based on substantial 

 

4 Section 1517(a)(5)(B) contains exceptions for clerical errors, which are not relevant 

here. 19 U.S.C. § 1517(a)(5)(B). 
Court No. 19-00198 Page 5 

evidence.” Id. § 1517(c)(1)(A). Customs may, however, “use an inference that is 

adverse to the interests of” the person alleged to have engaged in evasion or the 

foreign producer or exporter of the covered merchandise when “selecting from among 

the facts otherwise available” if that person “failed to cooperate by not acting to the best 

of the party or person’s ability to comply with a request for information.” Id.

§ 1517(c)(3)(A). 

Within 30 days of Customs’ determination as to evasion, the person alleging 

evasion, or the person found to have engaged in evasion, may file an administrative 

appeal with Customs “for de novo review of the determination.” Id. § 1517(f)(1). From 

the date that Customs completes that review, either of those persons have 30 business 

days in which to seek judicial review. Id. § 1517(g)(1). 

II. Factual and Procedural History 

In 2015, Royal Brush, a U.S. importer, began importing pencils from a company 

located in the Republic of the Philippines (“the Philippines”).5 Importer Request for 

Information (Oct. 3, 2018) (“Importer RFI”) at 3, CR 66, PR 26.6 On February 27, 2018, 

Dixon lodged an allegation with CBP in which it averred that Royal Brush was 

transshipping pencils made in China—and subject to an antidumping duty order on 

certain cased pencils from China—through the Philippines. Allegation under [EAPA] 

 

5 The name of the alleged manufacturer is treated as confidential in the parties’ briefs 

and is immaterial to the outcome of this case; therefore, the court will refer to the 

company as “the Philippine Shipper.” 

6 When possible, the court refers to the page numbering embedded in the cited 

document. Otherwise, the court cites to the applicable CBP Bates stamp on the 

page(s). 
Court No. 19-00198 Page 6 

(Feb. 27, 2018) (“Allegation”) at 3–4, CR 1, PR 2; see also Certain Cased Pencils from 

the People’s Republic of China, 59 Fed. Reg. 66,909 (Dep’t Commerce Dec. 28, 1994) 

(antidumping duty order) (“Pencils Order”); Certain Cased Pencils From the People’s 

Republic of China, 82 Fed. Reg. 41,608 (Dep’t Commerce Sept. 1, 2017) (continuation 

of antidumping duty order). The scope of the Pencils Order covers “certain cased 

pencils . . . that feature cores of graphite or other materials encased in wood and/or 

man-made materials, whether or not decorated and whether or not tipped (e.g., with 

erasers, etc.) in any fashion, and either sharpened or unsharpened.” 59 Fed. Reg. at 

66,909. 

On March 27, 2018, CBP initiated an investigation in EAPA Case No. 7238. 

Initiation of Investigation in EAPA Case No. 7238 (Mar. 27, 2018), CR 4, PR 5. 

Because CBP had acknowledged receipt of Dixon’s allegation on March 6, 2018, “the 

entries covered by this investigation are those that were entered for consumption, or 

withdrawn from a warehouse for consumption, from March 6, 2017 through the 

pendency of this investigation.” Notice of Initiation of Investigation and Interim 

Measures (June 26, 2018) (“Initiation Notice”) at 1, CR 8, PR 14.7 On May 25, 2018 

(with revisions submitted on July 19, 2018), Royal Brush responded to CBP’s Form 28 

Request for Information. EAPA Case No. 7238 – Resp. to CBP Form 28 (July 19, 

2018), CR 10, PR 19. 

 

7 Pursuant to 19 C.F.R. § 165.2, subject entries “are those entries of allegedly covered 

merchandise made within one year before the receipt of an allegation,” but, “at its 

discretion, CBP may investigate other entries of such covered merchandise.” 
Court No. 19-00198 Page 7 

On June 6, 2018, a CBP Attaché conducted an unannounced site visit at the 

Philippine Shipper’s facility in Subic Bay, Philippines, and, thereafter, produced a report 

summarizing the Attaché’s findings. EAPA 7238–Site Visit Report: [Philippine Shipper], 

Subic Bay, Philippines (June 15, 2018) (“Attaché Report”), CR 5, PR 8; see also May 6 

Determination at 4 (identifying the date of the visit as June 6, 2018).8 The Attaché 

concluded that the Philippine Shipper had “the capacity to finish some product, but the 

on-site evidence clearly reveal[ed] the repacking of completely finished products from 

China.” Attaché Report at CBP0002540. During the visit, the Attaché observed the 

Philippine Shipper’s “staff . . . making minor alterations or simply sharpening pencils” 

and “repacking China origin products into boxes labeled, ‘Made in Philippines.’” Id. at 

CBP0002541. The Attaché noted that manufacturing equipment was covered in dust or 

cobwebs; the “manufacturing warehouse did not indicate production of any products for 

some time”; raw materials such as lead or cores were absent from the facility; and the 

storage area contained “boxes with Chinese characters and English language boxes 

stating, ‘Made in the Philippines.’” Id. 

On June 26, 2018, CBP informed Royal Brush of the initiation of the investigation 

and imposition of interim measures. Initiation Notice at 1, 3–6. With respect to the 

imposition of interim measures, Customs explained that evidence gathered during the 

Attaché site visit, documents provided by Royal Brush in its response to CBP’s Form 

 

8 The Attaché Report indicates that the visit occurred on July 6, 2018; however, this 

appears to be a typographical error given that the report is dated June 15, 2018. 

Attaché Report at CBP0002540. 
Court No. 19-00198 Page 8 

28, and documents submitted by Dixon in support of its allegation9 “collectively create[d] 

a reasonable suspicion as to evasion.” Id. at 6. Accordingly, Customs suspended 

liquidation for any entries that entered on or after March 27, 2018, the date of initiation 

of this investigation, and extended liquidation for all unliquidated entries that entered 

before March 27, 2018. Id. 

Following the imposition of interim measures, Royal Brush and the Philippine 

Shipper responded to Customs’ further requests for information. See, e.g., EAPA Case 

No. 7238 - Resp. to CBP Importer Request for Information (Part I) – Updated 

Submission per Request of Sept. 28, 2018 (Oct. 3, 2018), CR 12, PR 24 (submitted by 

the Philippine Shipper); Importer RFI (submitted by Royal Brush). 

From November 14, 2018, through November 17, 2018, Customs conducted a 

scheduled verification at the Philippine Shipper’s facility. On-Site Verification Report 

(Feb. 11, 2019) (“Verification Report”) at 2, CR 129.10 Prior to verification, Customs 

informed the Philippine Shipper that it would be required to discuss its production 

process and submit documentation corresponding to five identified invoice numbers. 

 

9 Customs pointed to a purchase contract allegedly entered into between the alleged 

Chinese Manufacturer and a Trading Company that contained instructions on marking 

merchandise identified in Royal Brush’s online catalog as “Made in Philippines.” 

Initiation Notice at 2 (citing Allegation, Ex. 1). Customs pointed to additional 

documentation allegedly demonstrating that the merchandise would be shipped to Subic 

Bay. Id. (citing Allegation, Ex. 2). 

10 Customs released a public version of the verification report on February 25, 2019. 

See On-Site Verification Report (Feb. 25, 2019), PR 47. 
Court No. 19-00198 Page 9 

Site Verification Engagement Letter (Nov. 7, 2018) (“Verification Agenda”) at 2, CR 121, 

PR 33–34. 

In the report, Customs explained that it “[i]nterviewed company officials about 

their company operations and record keeping”; “[t]oured the facilities”; and “[r]eviewed 

original records to verify the on-the-record responses” submitted by the Philippine 

Shipper. Verification Report at 2. CBP summarized the “relevant facts and 

observations” with respect to the Philippine Shipper’s: (1) company ownership, 

operations, and recordkeeping; (2) co-mingled raw material and Chinese pencils; (3) 

verification of the five identified invoices plus two additional invoices; (4) production 

capability and capacity; and (5) payroll records. Id. at 3–10. Customs also attached to 

the Verification Report 32 photographs taken inside the Philippine Shipper’s facility. Id., 

Attach. II. 

Customs explained that the Philippine Shipper was unable to provide inventory 

receipt records for pencils purchased from Chinese suppliers and, at times, handwrote 

“pencils” with inventory receipts ostensibly related to the purchase of raw materials. Id.

at 5. CBP encountered difficulties verifying the identified invoices as a result of the 

Philippine Shipper’s failure to provide requested documents, deletion of documents, or 

provision of documents that had been altered or redacted. Id. at 6–8. CBP found that 

the Philippine Shipper’s payroll records indicated that the company’s production 

capacity was far less than the amount claimed and, thus, that the Philippine Shipper’s 

amount of exports to the United States substantially exceeded its production capacity as 

calculated by CBP’s verification team. Id. at 8–9. Lastly, “[e]vidence obtained during 
Court No. 19-00198 Page 10 

the verification” indicated that the Philippine Shipper’s previously-submitted payroll 

documents “were unsupported.” Id. at 9; see also id. at 10 (stating that the verification 

team was “unable to verify that the stated employees were, in fact, paid and/or that 

there was production during those time periods”). 

On March 6, 2019, Customs informed Royal Brush that because the Verification 

Report contained “new information,” Royal Brush was entitled to submit rebuttal 

information “related specifically to the information that was provided in the verification 

report.” Email from Kareen Campbell to Ron Oleynik (March 6, 2019, 16:04 EST) at 

CBP0002287, PR 49. While Royal Brush timely filed its rebuttal, on March 19, 2019, 

Customs informed Royal Brush that it was rejecting the submission. Email from Kareen 

Campbell to Ron Oleynik (March 19, 2019, 20:34 EST) at CBP0002295, PR 50. 

Customs explained that it rejected the rebuttal, in part, because of the inclusion of new 

factual information that was “not furnished during the verification.” Id. On March 21, 

2019, Customs stated that it had previously misinterpreted its regulation, 19 C.F.R. 

§ 165.23(c),11 and now determined that because “the verification report does not 

contain new information,” Royal Brush’s “rebuttal to the verification report [was] not 

 

11 Section 165.23(c) provides that 

[i]f CBP places new factual information on the administrative record on or 

after the 200th calendar day after the initiation of the investigation (or if 

such information is placed on the record at CBP’s request), the parties to 

the investigation will have ten calendar days to provide rebuttal 

information to the new factual information. 

19 C.F.R. § 165.23(c)(1). 
Court No. 19-00198 Page 11 

warranted.” Email from Kareen Campbell to Liliana Farfan (March 21, 2019, 15:14 

EST) (“2nd Rejection Email”) at CBP0002290, PR 50. 

On March 25, 2019, Royal Brush submitted written arguments pursuant to 19 

C.F.R. § 165.26.12 EAPA Case No. 7238 – Resubmission of Written Arguments to be 

Placed on the Admin. R. (March 25, 2019) (“Royal Brush’s Case Br.”), CR 130, PR 51. 

Among other things, Royal Brush argued that its procedural due process rights had 

been violated by virtue of the extensive redactions to the Allegation, Attaché Report, 

and Verification Report and CBP’s rejection of Royal Brush’s rebuttal submission. Id. at 

22–29. CBP further argued that CBP’s rejection of the rebuttal was arbitrary and 

capricious. Id. at 29–35. 

On May 6, 2019, Customs issued an affirmative determination as to evasion. 

See May 6 Determination. Customs found “that substantial evidence, in conjunction 

with an assumption of adverse inferences related to information requested but not 

provided, indicates [that] Royal Brush’s imports were merchandise entered through 

evasion.” Id. at 5; see also id. at 8 (finding substantial evidence to support a finding of 

evasion based on the available evidence “and the absence of information due to [the] 

 

12 Customs permits “parties to the investigation” to submit “written arguments that 

contain all arguments that are relevant to the determination as to evasion and based 

solely upon facts already on the administrative record in that proceeding.” 19 C.F.R. 

§ 165.26(a)(1). The term “[p]arties to the investigation” encompasses both the person 

“who filed the allegation of evasion and the importer . . . who allegedly engaged in 

evasion.” 19 C.F.R. § 165.1. The term “interested party” is defined more broadly to 

include, among others, the parties to the investigation and the “foreign manufacturer, 

producer, or exporter . . . of covered merchandise.” Id.
Court No. 19-00198 Page 12 

Philippine[] Shipper’s failure to cooperate and comply to the best of its ability”). 

Customs did not address Royal Brush’s due process arguments except to state that the 

information and findings contained in the verification report were “covered by” Customs’ 

regulation, 19 C.F.R. § 165.25. Id. at 5 n.15.13 

On June 18, 2019, Royal Brush filed a request for an administrative review of 

Customs’ Determination. Request for Admin. Review (June 18, 2019) (“Req. for Admin. 

Review”), CR 132, PR 58. On September 24, 2019, CBP completed its de novo review. 

Sept. 24 Determination at 1. CBP concluded that substantial evidence supported a 

finding that the pencils imported by Royal Brush during the period of investigation were 

manufactured in China. Id. at 11, 18–19; see also id. at 12–18 (discussing the 

evidence). Further, while stating that they were not necessary to its decision, CBP 

concluded that “adverse inferences were warranted, inasmuch as the importer, as well 

as the alleged foreign producer and exporter, failed to provide sufficient evidence to 

demonstrate that the pencils imported by Royal Brush were manufactured in the 

Philippines.” Id. at 18. CBP thus “reasonably filled those evidentiary gaps with some 

adverse inferences.” Id. 

Royal Brush timely sought judicial review pursuant to 19 U.S.C. § 1517(g)(1). 

See Summons, ECF No. 1; Compl., ECF No. 2. The court heard confidential oral 

argument on October 6, 2020. Docket Entry, ECF No. 49. 

 

13 The regulation states that, following a verification, “CBP will place any relevant 

information on the administrative record and provide a public summary.” 19 C.F.R. 

§ 165.25(b). 
Court No. 19-00198 Page 13 

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to section 517(g) of the Tariff Act of 1930, as 

amended, 19 U.S.C. § 1517(g), and 28 U.S.C. § 1581(c). 

EAPA directs the court to determine whether a determination issued pursuant to 

19 U.S.C. § 1517(c) or an administrative review issued pursuant to 19 U.S.C. § 1517(f) 

was “conducted in accordance with those subsections.” 19 U.S.C. § 1517(g)(1). In so 

doing, the court “shall examine . . . whether [CBP] fully complied with all procedures 

under subsections (c) and (f)” and “whether any determination, finding, or conclusion is 

arbitrary, capricious, an abuse of discretion, or otherwise not in accordance with law.” 

Id. § 1517(g)(2).14

“The scope of review under the ‘arbitrary and capricious’ standard is narrow and 

a court is not to substitute its judgment for that of the agency.” Motor Vehicle Mfrs. 

Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983). However, 

Customs “must examine the relevant data and articulate a satisfactory explanation for 

its action[,] including a ‘rational connection between the facts found and the choice 

 

14 Customs’ regulation refers to an “initial determination,” 19 C.F.R. § 165.41, and a 

“final administrative determination” that is subject to judicial review, id. § 165.46. The 

statute does not use those terms or explicitly limit the scope of judicial review to 

Customs’ de novo review of the earlier determination. See 19 U.S.C. § 1517(g). At oral 

argument, Royal Brush opined that only the September 24 Determination is judicially 

reviewable because it constitutes CBP’s de novo reconsideration of the May 6 

Determination. Oral Arg. 4:40–4:48 (reflecting the time stamp of the recording); see 

also Pl.’s Mem. at 1; Pl.’s Reply at 10 n.11. The Government and Dixon argued that 

both determinations are subject to judicial review. Oral Arg. 11:05–11:15, 19:11–19:55. 

The court’s disposition of the matter herein on procedural grounds rather than the 

substantive merits of Customs’ affirmative evasion determination does not require the 

court to resolve these competing arguments. 
Court No. 19-00198 Page 14 

made.’” Id. (quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)). 

“An abuse of discretion occurs [when] the decision is based on an erroneous 

interpretation of the law, on factual findings that are not supported by substantial 

evidence, or represents an unreasonable judgment in weighing relevant factors.” 

Consol. Bearings Co. v. United States, 412 F.3d 1266, 1269 (Fed. Cir. 2005) (citation 

omitted). “Courts look for a reasoned analysis or explanation for an agency's decision 

as a way to determine whether a particular decision is arbitrary, capricious, or an abuse 

of discretion.” Wheatland Tube Co. v. United States, 161 F.3d 1365, 1369 (Fed. Cir. 

1998). 

DISCUSSION 

I. CBP’s Rejection of Royal Brush’s Rebuttal Submission 

A. Parties’ Contentions 

Royal Brush contends that CBP’s Verification Report contained new factual 

information and, thus, CBP’s rejection of its rebuttal submission was arbitrary, 

capricious, and an abuse of discretion. Pl.’s Mem. at 9–13; Pl.’s Reply at 2–3.15 

Recognizing that neither the EAPA statute nor CBP’s regulations define “factual 

information,” Royal Brush finds support for its position in the definition used by the U.S. 

 

15 Royal Brush also contends that Customs’ rejection of the rebuttal submission denied 

Royal Brush “a meaningful opportunity to be heard.” Pl.’s Mem. at 9; see also Pl.’s 

Reply at 4. Royal Brush did not, however, substantiate its due process concerns with 

respect to this issue and, thus, the court does not further address the contention. See, 

e.g., United States v. Great Am. Ins. Co. of N.Y., 738 F.3d 1320, 1328 (Fed. Cir. 2013) 

(“It is well established that arguments that are not appropriately developed in a party’s 

briefing may be deemed waived.”). 
Court No. 19-00198 Page 15 

Department of Commerce (“Commerce”) in antidumping and countervailing duty 

proceedings. Pl.’s Mem. at 10–11 (discussing 19 C.F.R. § 351.102(b)(21) and related 

case law). Royal Brush further contends that Customs’ assertion that the contents of 

the Verification Report are “covered by 19 C.F.R. § 165.25” lacks merit because the 

regulation does not preclude information in the Verification Report from constituting 

“new factual information.” Id. at 12 n.7. 

The Government contends that Customs properly rejected Royal Brush’s rebuttal 

submission because the Verification Report did not contain new factual information. 

Def.’s Resp. at 14–15. Rather, the Government contends, CBP conducted “a 

quintessential verification” in order to test the accuracy of the submitted data, id. at 16, 

and simply “summarized its findings in the [V]erification [R]eport,” id. at 18. The 

Government further contends that Customs provided an adequate explanation for its 

decision to reject Royal Brush’s rebuttal submission. Id. at 19–20. Dixon advances 

substantially similar arguments. Def.-Int.’s Resp. at 4–5. 

B. CBP Must Reconsider and Further Explain its Rejection of Royal 

Brush’s Rebuttal Submission 

Customs’ rejection of Royal Brush’s rebuttal submission turned on Customs’ 

conclusion that the Verification Report did not contain new factual information. 2nd 

Rejection Email at CBP0002290. CBP is required to provide “a reasoned analysis or 

explanation” for that decision, Wheatland Tube, 161 F.3d at 1369, but has not done so 

here. 
Court No. 19-00198 Page 16 

Customs’ regulations permit parties to the investigation “to provide rebuttal 

information” to any “new factual information” that Customs “places . . . on the 

administrative record on or after the 200th calendar day after the initiation of the 

investigation.” 19 C.F.R. § 165.23(c)(1). Customs’ conclusory statement that “the 

verification report does not contain new information,” 2nd Rejection Email at 

CBP0002290, lacks any identification of the standard CBP used to define “new factual 

information” or application of that standard to the Verification Report. Customs’ 

subsequent assertion that the Verification Report and its exhibits “are covered by [19 

C.F.R.] § 165.25” fares no better. May 6 Determination at 5 n.15; Sept. 24 

Determination 16 n.16. While the regulation directs CBP to “place any relevant 

[verification] information on the administrative record and provide a public summary,” 19 

C.F.R. § 165.25, it does not explicitly preclude that information from being “new” for 

purposes of 19 C.F.R. § 165.23(c)(1). 

The Government’s argument that the purpose of verification is to test the 

accuracy of submitted data is not persuasive. Def.’s Resp. at 15–16 (citing Borusan 

Mannesmann Boru Sanayi ve Ticaret A.S. v. United States, 39 CIT ___, ___, 61 

F.Supp.3d 1306, 1349 (2015); Özdemir Boru San. ve Tic. Ltd. Sti. v. United States, 41 

CIT ___, ___, 273 F.Supp.3d 1225, 1242 (2017); Tianjin Mach. Imp. & Exp. Corp. v. 

United States, 28 CIT ___, 353 F. Supp. 2d 1294, 1304 (2004)). The cited cases 

indicate Commerce’s views on verification, not Customs’ views. See, e.g., Borusan, 61 

F. Supp. 3d at 1349. Further, at oral argument, the Government explained that CBP 

does not take the position that the contents of a verification report may never constitute 
Court No. 19-00198 Page 17 

new factual information. Oral Arg. at 28:00–28:07. Thus, the Government’s argument 

sheds no light on CBP’s basis for deciding that the Verification Report at issue here did 

not contain new factual information. 

It is not the court’s role to “supply a reasoned basis for [Customs’] action that 

[Customs] itself has not given.” State Farm, 463 U.S. at 43 (quoting SEC v. Chenery 

Corp., 332 U.S. 194, 196 (1947)). Accordingly, the court may not adopt Commerce’s 

definition of factual information for purposes of an EAPA proceeding and apply that 

definition to the Verification Report to resolve the issue.16 When, as here, the court is 

tasked with reviewing a decision based on an agency record, and that record does not 

support the contested decision, the court must remand for further proceedings. See, 

e.g., Fla. Power & Light Co. v. Lorion, 470 U.S. 729, 744 (1985) (“If the record before 

the agency does not support the agency action, if the agency has not considered all 

relevant factors, or if the reviewing court simply cannot evaluate the challenged agency 

action on the basis of the record before it, the proper course, except in rare 

circumstances, is to remand to the agency for additional investigation or explanation. 

The reviewing court is not generally empowered to conduct a de novo inquiry into the 

matter being reviewed and to reach its own conclusions based on such an inquiry.”); 

Nippon Steel Corp. v. Int’l Trade Comm’n, 345 F.3d 1379, 1381–82 (Fed. Cir. 2003). 

 

16 At oral argument, the Government opined that, in the absence of a Customs definition 

of “factual information,” the court may find Commerce’s definition instructive. Oral Arg. 

22:57–23:11, 24:07–24:10. 
Court No. 19-00198 Page 18 

Accordingly, this issue is remanded to CBP for reconsideration and further 

explanation.17 

II. Royal Brush’s Procedural Due Process Claims 

A. Parties’ Contentions 

Royal Brush contends that CBP’s administration of the EAPA proceeding denied 

Royal Brush procedural due process and was arbitrary and capricious. Pl.’s Mem. at 

13–20; see also Pl.’s Reply at 5–9. In particular, Royal Brush argues: (1) CBP redacted 

or otherwise withheld substantial amounts of record information, some of which CBP 

relied on to support its affirmative evasion determination, Pl.’s Mem. at 14–17; (2) Royal 

Brush lacked adequate notice concerning the information that would be requested or 

was considered missing from the record, id. at 17–18; (3) CBP “maintain[ed] a secret 

administrative record” to which Royal Brush lacked full access until it obtained judicial 

review, id. at 18–19; and (4) Customs’ regulatory definition of “parties to the 

investigation” as a subset of “interested parties” prevented the Philippine Shipper “from 

fully participating in the proceedings,” Id. at 19–20. Royal Brush further contends that 

 

17 Because the court is remanding this issue, the court does not reach Royal Brush’s 

alternative argument that Customs failed to weigh the factors set forth in Grobest & IMei Indus. (Vietnam) Co. v. United States, 36 CIT 98, 123, 815 F. Supp. 2d 1342, 1365 

(2012), regarding the acceptance of untimely information. Pl.’s Mem. at 12–13; see 

also Pl.’s Reply at 4–5. Additionally, Dixon’s contention that CBP’s determination 

should be affirmed even if the Verification Report contains new information because 

CBP relied on evidence other than the information contained in the Verification Report 

lacks merit. Def.-Int.’s Resp. at 5. If the Verification Report contains new information 

that Royal Brush is entitled to rebut, CBP will need to incorporate that rebuttal 

information into its remand redetermination. 
Court No. 19-00198 Page 19 

Customs’ failure to explain why it redacted or withheld information from Royal Brush 

amounts to arbitrary and capricious action. Id. at 20. 

The Government contends that Royal Brush has failed to “identify any protected 

interest of which it was allegedly deprived” by CBP’s management of the administrative 

record and, thus, Royal Brush’s due process claims must fail. Def.’s Resp. at 24; id. at 

27. The Government further contends that Royal Brush had adequate notice of the 

claim against it, id. at 23–24, and its “generalized complaints about the EAPA process 

do not entitle it to relief,” id. at 25.18

B. A Remand is Required for CBP to Comply with Procedural 

Requirements Concerning Royal Brush’s Access to Information 

While Royal Brush raises various challenges to CBP’s administration of the 

underlying proceeding, at oral argument, it inferred that each claim is grounded in Royal 

Brush’s overarching concern that CBP procedurally erred in failing to disclose 

information that CBP relied on in its determination. See Oral Arg. 1:41:45–1:42:37, 

1:56:04–1:57:39, 2:29:22–2:31:07, 2:35:25–2:36:15. As discussed below, the record 

indicates that Customs failed to ensure that confidential filings were accompanied by 

the requisite public summaries. Thus, on remand, CBP must address and remedy this 

deficiency. 

“The Fifth Amendment prohibits the deprivation of life, liberty, or property without 

due process of law.” U.S. Auto Parts Network, Inc. v. United States, 42 CIT ___, ___, 

319 F. Supp. 3d 1303, 1310 (2018) (citing U.S. Const. amend. V). Thus, “[t]he first 

 

18 Dixon did not respond to Royal Brush’s due process arguments. 
Court No. 19-00198 Page 20 

inquiry in every due process challenge is whether the plaintiff has been deprived of a 

protected interest in property or liberty.” Int’l Custom Prods., Inc. v. United States, 791 

F.3d 1329, 1337 (Fed. Cir. 2015) (citation omitted). While “engaging in foreign 

commerce is not a fundamental right protected by notions of substantive due process,” 

NEC Corp. v. United States, 151 F.3d 1361, 1369 (Fed. Cir. 1998), an importer 

participating in an administrative proceeding has a procedural due process right to 

“notice and a meaningful opportunity to be heard,” PSC VSMPO-Avisma Corp. v. United 

States , 688 F.3d 751, 761–62 (Fed. Cir. 2012) [hereinafter Avisma] (quoting LaChance 

v. Erickson, 522 U.S. 262, 266 (1998));19 see also Nereida Trading Co. v. United States, 

34 CIT 241, 248, 683 F. Supp. 2d 1348, 1355 (2010) (assuming that the plaintiff had “a 

protected interest in the proper assessment of tariffs on goods already imported” and 

further examining “what process is due”) (citation omitted); Transcom, Inc. v. United 

States, 24 CIT 1253, 1271, 121 F. Supp. 2d 690, 707 (2000) (“It is impossible to 

comprehend how an importer’s lack of a vested right to import merchandise in the future 

negates the obligation to provide the importer with notice prior to imposing an 

 

19 The Government argues that the court should not address Royal Brush’s arguments 

because Royal Brush failed to adequately identify a protected interest. Def.’s Resp. at 

24, 27. Royal Brush argued, however, that as “an importer[] participating in an 

administrative proceeding” it had a due process right to “notice and a meaningful 

opportunity to be heard.” Pl.’s Mem. at 13 (quoting Avisma, 688 F.3d at 761–62). 

Waiver is not implicated when the parties’ briefs on an issue “do[] not deprive [the court] 

in substantial measure of that assistance of counsel which the system assumes.” MTZ 

Polyfilms, Ltd. v. United States, 33 CIT 1575, 1579, 659 F. Supp. 2d 1303, 1308 (2009) 

(alteration original) (quoting Carducci v. Regan, 714 F.2d 171, 177 (D.C. Cir. 1983)) 

(discussing, but ultimately declining to apply, the doctrine of waiver). While Royal Brush 

could have been more explicit as to the nature of the protected interest, the parties’ 

briefing on these matters is sufficient for the court to address the competing arguments. 
Court No. 19-00198 Page 21 

antidumping duty for the merchandise already imported.”). In general, “notice [must be] 

reasonably calculated, under all the circumstances, to appri[s]e interested parties of the 

pendency of the action and afford them an opportunity to present their objections.” 

Transcom, 24 CIT at 1272, 121 F. Supp. 2d at 708 (quoting Mullane v. Cent. Hanover 

Bank & Tr. Co., 339 U.S. 306, 314 (1950)). Such opportunity must occur “at a 

meaningful time and in a meaningful manner.” Mathews v. Eldridge, 424 U.S. 319, 333 

(1976)). 

During the investigation, Royal Brush alerted Customs to its concerns regarding 

the extent of the redactions to various documents and Royal Brush’s corresponding 

inability to fully defend its position. See Submission of Written Args. to be Placed on the 

Admin. R. (Nov. 13, 2018), PR 36 (arguing that due process required CBP to provide 

copies of the photographs of the Philippine Shipper’s facility attached to the Attaché 

Report to Royal Brush or to the Philippine Shipper before verification, and there was no 

reason to withhold the photographs from the Philippine Shipper since the photographs 

pertained to that company’s business information); Royal Brush’s Case Br. at 4, 22–25 

(arguing that Royal Brush had been denied procedural due process based on CBP’s 

treatment of confidential information in the Allegation, Attaché Report, and Verification 

Report); Req. for Admin. Review at 24 (same). Customs did not respond to Royal 

Brush’s request for disclosure of the photographs attached to the Attaché Report or 

address Royal Brush’s due process arguments in the May 6 Determination or the 

September 24 Determination. Customs therefore “failed to consider an important 

aspect of the problem,” resulting in a determination that is arbitrary and capricious. SKF 
Court No. 19-00198 Page 22 

USA Inc. v. United States, 630 F.3d 1365, 1374 (Fed. Cir. 2011) (quoting State Farm, 

463 U.S. at 43). 

Further, while “procedural due process guarantees do not require full-blown, trialtype proceedings in all administrative determinations,” Kemira Fibres Oy v. United 

States, 18 CIT 687, 694, 858 F. Supp. 229, 235 (1994), due process “forbids an agency 

to use evidence in a way that forecloses an opportunity to offer a contrary presentation,” 

Bowman Transp., Inc. v. Arkansas-Best Freight System, Inc., 419 U.S. 281, 289 n.4 

(1974). Thus, to comply with due process, Customs’ procedures must afford adequate 

opportunity for importers to respond to the evidence used against them. 

EAPA does not require or establish a procedure for the issuance of an 

administrative protective order (“APO”) akin to the procedure used in antidumping and 

countervailing duty proceedings or otherwise address Customs’ management of 

confidential information. Compare 19 U.S.C. § 1517 (governing EAPA investigations), 

with 19 U.S.C. § 1677f(c)(1)(A)–(B) (establishing procedures for the disclosure of 

proprietary information pursuant to a protective order in Commerce proceedings). 

However, Customs has promulgated a regulation governing the release of information 

provided by interested parties, 19 C.F.R. § 165.4. Subsection (a)(1) of the regulation 

contains instructions for interested parties to request business confidential treatment of 

information contained in submissions and states the requirements that must be met. 19 

C.F.R. § 165.4(a)(1). Subsection (a)(2) further requires the submitter to file “a public 

version of the submission” that, when possible, “contain[s] a summary of the bracketed 

information in sufficient detail to permit a reasonable understanding of the substance of 
Court No. 19-00198 Page 23 

the information.” Id. § 165.4(a)(2). Subsection (e) also directs that “[a]ny information 

that CBP places on the administrative record, when obtained other than from an 

interested party subject to the requirements of this section, will include a public 

summary of the business confidential information.” Id. § 165.4(e). 

While Royal Brush did not explicitly reference 19 C.F.R. § 165.4 in its papers, 

CBP’s compliance with its regulation concerning public summarization of confidential 

information is relevant to assessing Royal Brush’s claim that CBP denied Royal Brush a 

meaningful opportunity to participate in the administrative proceeding. See Sichuan 

Changhong Elec. Co. v. United States, 30 CIT 1886, 1890–92, 466 F. Supp. 2d 1323, 

1327–29 (2006) (due process claim did not succeed when the agency complied with its 

statutory and regulatory obligations, which otherwise constituted “a reasonable means 

to bring an administrative procedure to closure”); Kemira Fibres, 18 CIT at 694–95, 858 

F. Supp. at 235–36 (failure to comply with regulatory procedures constituted “arbitrary 

and capricious” conduct that “deprived [the plaintiff] of its constitutional due process 

right”). The court’s review of the administrative record reveals CBP’s inattention to the 

requirement for a public summary of information designated business confidential. 

The record shows, for example, that the public version of Dixon’s Allegation 

redacts the confidential information in the narrative portion and omits the exhibits but 

does not separately summarize the confidential information in a public document. See 

generally Allegation (public version). Likewise, there are no public summaries of the 

confidential information redacted from the Attaché Report or Verification Report, 

including their respective photographs or exhibits. See generally Attaché Report (public 
Court No. 19-00198 Page 24 

version); Verification Report (public version); Foreign Party – Verification Exhibits (Nov. 

30, 2018), PR 39–46. The lack of public summaries accompanying the Attaché Report 

and Verification Report are particularly concerning given CBP’s reliance on those 

reports in its determination. See, e.g., Sept. 24 Determination at 13–14 (“The CBP 

Attaché’s Report, complete with observations and photographs, unequivocally 

demonstrates repackaging of Chinese pencils into boxes labeled as made in the 

Philippines and destined for the United States.”). There is no indication that the 

redacted information was not susceptible to public summarization and CBP has not 

indicated that is the case. Thus, the court finds that, in this respect, CBP failed to afford 

Royal Brush “the opportunity to be heard at a meaningful time and in a meaningful 

manner.”20 Eldridge, 424 U.S. at 333.21 

 

20 The Government asserted at oral argument that Royal Brush, after obtaining access 

to the complete administrative record on judicial review, has failed to articulate 

arguments it would have made if given greater access during the investigation. Oral 

Arg. 1:31:53–1:32:43. While Royal Brush’s counsel has access to sealed filings during 

judicial review pursuant to a protective order, counsel is not able to share that 

information with Royal Brush for the purpose of forming arguments. See generally 

Protective Order (Dec. 16, 2019), ECF No. 22. Thus, the Government’s argument fails 

to persuade the court that a remand to produce public summaries in accordance with 

CBP’s regulation is not required. Furthermore, access to the complete record on 

judicial review cannot cure improper withholding of information by Customs because the 

court applies a deferential standard of review to Customs’ evasion determination. Cf.

S.D. v. U.S. Dept. of Interior, 787 F. Supp. 2d 981, 996–99 (D.S.D. 2011) (failure by 

administrative agency to provide plaintiffs with 23 documents on which the agency 

based its decision constituted a due process violation that was not cured by review of 

the decision by an appellate board before which plaintiffs had access to the complete 

record because the board applied a deferential standard of review). 

21 As previously noted, Plaintiff’s additional due process arguments are facets of its 

overarching claim regarding the lack of access to relevant evidence. Because the court 

is remanding the matter for CBP to remedy this deficiency, the court declines to address 
Court No. 19-00198 Page 25 

Accordingly, the court remands the matter to Customs to address and remedy 

the lack of public summaries by providing Royal Brush an opportunity to participate on 

the basis of information that it should have received during the underlying proceeding. 

To be clear, the court does not hold that Royal Brush is entitled to receive business 

confidential information. Congress has not mandated that Royal Brush be afforded 

such access and Royal Brush has not shown that due process requires it. However, 

Customs must ensure compliance with the public summarization requirements provided 

in its own regulations.22 

CONCLUSION AND ORDER

In accordance with the foregoing, it is hereby 

ORDERED that Customs’ evasion determination is remanded to CBP for 

reconsideration and further explanation regarding the existence of new factual 

information in the Verification Report and, to the extent the Verification Report contains 

new factual information, Royal Brush must be afforded an opportunity to rebut that 

information; it is further 

 

Royal Brush’s remaining arguments. To the extent these arguments continue to 

represent live controversies, Royal Brush must renew the arguments on remand to 

ensure that CBP has adequate opportunity to respond and, thus, produce a judicially 

reviewable determination on those issues. 

22 The court is mindful that parties sometimes question whether Commerce always 

complies with a substantially similar requirement in its regulations, 19 C.F.R. 

§ 351.304(c)(1). Commerce’s actions are not now before the court and the court cannot 

ignore the robust APO procedures that mitigate any impact that might result in the case 

of Commerce’s noncompliance. 
Court No. 19-00198 Page 26 

ORDERED that Customs’ evasion determination is remanded for CBP to comply 

with the public summary requirement set forth in 19 C.F.R. § 165.4 and afford Royal 

Brush an opportunity to present arguments based on that information; it is further 

ORDERED that the court will defer resolution of Royal Brush’s remaining 

arguments pending Customs’ redetermination; it is further 

ORDERED that Customs shall file its remand redetermination on or before March 

1, 2021; it is further 

ORDERED that, within 14 days of the date of filing of Customs’ remand 

redetermination, Customs must file an index and copies of any new administrative 

record documents; it is further 

ORDERED that the deadline for filing comments after remand shall be governed 

by USCIT Rule 56.2(h)(2)–(3); and it is further 

ORDERED that any comments or responsive comments must not exceed 5,000 

words. 

 /s/ Mark A. Barnett 

 Mark A. Barnett, Judge 

Dated: December 1, 2020 

 New York, New York