Case: 22-1226    Document: 77     Page: 1    Filed: 07/27/2023




   United States Court of Appeals
       for the Federal Circuit
                  ______________________

      ROYAL BRUSH MANUFACTURING, INC.,
               Plaintiff-Appellant

                             v.

      UNITED STATES, DIXON TICONDEROGA
                   COMPANY,
               Defendants-Appellees
              ______________________

                        2022-1226
                  ______________________

    Appeal from the United States Court of International
 Trade in No. 1:19-cv-00198-MAB, Chief Judge Mark A.
 Barnett.
                 ______________________

                  Decided: July 27, 2023
                  ______________________

     STEVEN D. GORDON, Holland & Knight LLP, Washing-
 ton, DC, argued for plaintiff-appellant. Also represented
 by RONALD ALAN OLEYNIK.

     MARGARET JANTZEN, Commercial Litigation Branch,
 Civil Division, United States Department of Justice, Wash-
 ington, DC, argued for defendant-appellee United States.
 Also represented by BRIAN M. BOYNTON, CLAUDIA BURKE,
 PATRICIA M. MCCARTHY, ANTONIA RAMOS SOARES.

    FELICIA     LEBORGNE     NOWELS,        Akerman    LLP,
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 2                     ROYAL BRUSH MANUFACTURING, INC. v. US




 Tallahassee, FL, argued for defendant-appellee Dixon Ti-
 conderoga Company. Also represented by MICHAEL J.
 LARSON; JULIA PADIERNA-PERALTA, Washington, DC.
                 ______________________

      Before LOURIE, DYK, and STOLL, Circuit Judges.
 DYK, Circuit Judge.
     Royal Brush Manufacturing Inc. (“Royal Brush”), an
 importer of pencils, was accused of transshipping pencils
 from China through the Philippines to avoid antidumping
 duties assessed on pencils of Chinese origin. Customs and
 Border Patrol (“CBP”) found that the pencils had been
 transshipped. It based this finding in part on evidence that
 had not been supplied to Royal Brush because it was confi-
 dential business information. Royal Brush was also denied
 the opportunity to rebut this evidence.
     We hold that we have jurisdiction and that the failure
 to provide access to the redacted information was a viola-
 tion of due process. Under the applicable CBP regulation,
 Royal Brush must be given an opportunity to rebut this in-
 formation with its own evidence.
                         BACKGROUND
     This case concerns five entries of pencils that Royal
 Brush imported to the United States between 2017 and
 2018. On February 27, 2018, Dixon Ticonderoga Company
 (“Dixon”), a competing importer of pencils, filed a com-
 plaint with CBP alleging evasion by Royal Brush of anti-
 dumping duties under the Enforce and Protect Act of 2015
 (“EAPA”), 

 Stat. 155 (codified in
 scattered sections of 19 U.S.C.), 

, and the
 related regulation, 19 C.F.R. Part 165. Dixon alleged that
 Royal Brush was transshipping pencils from China
 through the Philippines, falsely claiming the pencils to be
 of Philippine origin and thus not subject to the antidump-
 ing duties assessed on certain pencils from China.
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 ROYAL BRUSH MANUFACTURING, INC. v. US                      3



      CBP initiated an investigation on March 27, 2018, and
 a CBP attaché conducted a site visit to Royal Brush’s Phil-
 ippines manufacturer, the entity Royal Brush alleged had
 been producing the pencils that it imported. The attaché
 took photographs of and inside the facility and, in his re-
 port, wrote that “[t]he pictures and captions provided in
 this report indicate a clear story line of repacked Chinese
 pencils bound for the United States in boxes labeled, Made
 in the Philippines.” J.A. 175. CBP only provided Royal
 Brush with the public version of the report which redacted
 all of the photographs.
     CBP then commenced a formal investigation to deter-
 mine whether Royal Brush was evading antidumping du-
 ties. CBP issued a notice of investigation to Royal Brush
 in a letter dated June 26, 2018. The letter stated that “CBP
 will . . . suspend the liquidation for any entry that has en-
 tered on or after March 27, 2018, the date of initiation of
 this investigation; and, CBP will extend the liquidation pe-
 riod for all unliquidated entries that entered before that
 date.” J.A. 776. Such liquidation suspension was man-
 dated by 

(e) and 

(b)(1).
      In November 2018, CBP conducted a verification site
 visit to the Philippines manufacturer. The resulting Veri-
 fication Report concluded that the Philippines manufac-
 turer did not have the capability to produce sufficient
 quantities of pencils to account for the total number of pen-
 cils imported to the United States in 2018. CBP provided
 only a redacted version of the report to Royal Brush which
 included neither the numbers used to calculate production
 capability and capacity nor the final production capability
 and capacity determinations. The redacted version also
 omitted other confidential business information, 1 such as


     1   Confidential business information is defined by
 regulation as information “consist[ing] of trade secrets and
 commercial or financial information obtained from any
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 4                    ROYAL BRUSH MANUFACTURING, INC. v. US




 photographs of the facility and information about certain
 invoices and purchase orders. 2
     Royal Brush sought to file a rebuttal to the Verification
 Report. Because the Verification Report was submitted
 more than 200 days after the investigation was initiated, a
 rebuttal would only have been proper if the Verification Re-
 port contained “new factual information.” 

(c)(1). CBP at first indicated that this rebuttal was
 allowed but ultimately rejected the rebuttal because CBP
 determined that the verification report did not, in fact, con-
 tain new factual information. CBP only accepted Royal
 Brush’s written arguments in response to the Verification
 Report. Royal Brush was denied the opportunity to submit
 rebuttal evidence.
     On May 6, 2019, CBP issued a final affirmative deter-
 mination of evasion and noted that it would continue to
 suspend liquidation of entries. The evasion determination
 was upheld on de novo administrative review by the CBP’s
 Office of Trade, Regulations, and Rulings.
     On November 6, 2019, Royal Brush appealed to the
 U.S. Court of International Trade (“CIT”), and soon there-
 after moved to enjoin liquidation throughout the pendency
 of the case. The CIT granted the motion to enjoin liquida-
 tion on November 27, 2019, and later remanded the



 person, which is privileged or confidential in accordance
 with 5 U.S.C. 552(b)(4).” 

(a). 

(b)(4) covers “trade secrets and commercial or finan-
 cial information obtained from a person and privileged or
 confidential.”
     2    Counsel for Royal Brush was provided with unre-
 dacted copies of the Attaché Report and Verification Report
 in later proceedings at the CIT pursuant to a CIT protec-
 tive order. This information was not available to Royal
 Brush during the CBP proceedings.
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 ROYAL BRUSH MANUFACTURING, INC. v. US                       5



 proceeding to CBP requiring CBP to provide summaries of
 the redacted information, as required by 

(e), and to reconsider the denial of the opportunity
 to rebut. The CIT did “not hold that Royal Brush is entitled
 to receive business confidential information” and noted
 that “Congress has not mandated that Royal Brush be af-
 forded such access and Royal Brush has not shown that due
 process requires it.” J.A. 81.
     On remand, CBP issued public summary versions of
 the Attaché Report and the Verification Report to Royal
 Brush. The photographs in the Attaché Report were re-
 placed with generic descriptions such as “photo of sign,”
 “photo of a different sign,” and “photo of labeled box with
 finished merchandise.” J.A. 1375–84. The summaries in
 the Verification Report replaced all numbers associated
 with production capability and capacity with either “num-
 ber” or “no.” According to CBP:
     CBP’s remand proceeding complied with the
     Court’s Remand Order. The EAPA statute and ap-
     plicable regulations do not provide for a mecha-
     nism, such as an administrative protective order
     . . ., for disclosure of confidential business infor-
     mation to interested parties. As such, CBP is not
     authorized to disclose business confidential infor-
     mation to interested parties or their authorized
     representatives.
 J.A. 36 (footnote omitted).
     As to the rebuttal issue, CBP “continue[d] to find that
 the Verification Report d[id] not contain new factual infor-
 mation” and rejected Royal Brush’s rebuttal submission.
 J.A. 18. Specifically, CBP found that the calculations in
 the Verification Report were “simply CBP using and veri-
 fying the factual data on the record and therefore [were] a
 natural part of CBP’s investigation as to whether evasion
 occurred.” J.A. 26.
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 6                   ROYAL BRUSH MANUFACTURING, INC. v. US




      Royal Brush appealed again to the CIT, arguing that
 the public summaries were insufficient; that the failure to
 provide the unredacted information deprived Royal Brush
 of due process; that the Verification Report contained new
 information that it should be allowed to rebut; and that the
 CBP determination was arbitrary and capricious and not
 supported by substantial evidence. 3 The CIT held that
 “CBP has complied with 

 by providing nec-
 essary public summaries of the confidential information
 and that Royal Brush has not established that CBP has
 failed to provide Royal Brush the process that it is due.”
 J.A. 9–10. The CIT also sustained CBP’s decision to reject
 Royal Brush’s rebuttal submission and upheld the evasion
 determination, concluding that it was not arbitrary and
 was supported by substantial evidence.
      Royal Brush appealed to this court pursuant to 

(a)(5). Around December 2021, after Royal
 Brush filed this appeal, the government informed Royal
 Brush that, contrary to the EAPA, 

(d)(1)(A)(i), (e)(1), CBP’s own regulations, 

(b)(1)(i), 165.28(a)(1)(i)–(ii), and CBP’s previous
 representations in its initiation of investigation and final
 evasion determination, all five of Royal Brush’s entries had
 been liquidated. All of these five entries had been liqui-
 dated before the injunction, and the first had been liqui-
 dated even before Dixon’s transshipping complaint. At
 liquidation, antidumping duties were assessed on the last
 two entries but not on the first three.




     3   Royal Brush also challenged CBP’s use of adverse
 inferences in the evasion determination proceedings at the
 CIT. The CIT held that this issue was moot, and Royal
 Brush does not raise it on appeal.
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 ROYAL BRUSH MANUFACTURING, INC. v. US                        7



     Because the entries had been liquidated, the United
 States moved to dismiss this case for lack of jurisdiction.
 That motion was referred to the merits panel.
                             DISCUSSION
                        I.       Jurisdiction
     Congress, concerned with evasion of antidumping du-
 ties, on February 24, 2016, enacted the EAPA, a statutory
 scheme for determining whether “covered merchandise
 was entered into the customs territory of the United States
 through evasion.” 

(c)(1)(A). Evasion pro-
 ceedings begin with an allegation or referral to CBP. 

(b)(1). Then, CBP has 15 business days to
 “initiate an investigation if [CBP] determines that the in-
 formation provided in the allegation or the referral . . . rea-
 sonably suggests that covered merchandise has been
 entered into the customs territory of the United States
 through evasion.” 

 After initiation, CBP generally has
 300 days to make an evasion determination based on sub-
 stantial evidence. 

 § 1517(c)(1)(A). Finally, after CBP
 makes its evasion determination, an entity deemed to have
 evaded duties has 30 days to seek administrative review by
 “appeal[ing] . . . for de novo review of the determination.”
 Id. § 1517(f)(1).
     When the administrative proceedings are complete, the
 entity that imported the covered merchandise can seek ju-
 dicial review in the CIT “to determine whether the [eva-
 sion] determination and [administrative] review [was]
 conducted in accordance” with statutory provisions. Id. §
 1517(g)(1). Our court has jurisdiction over “an appeal from
 a final decision of the [CIT].” 

(a)(5). It is
 undisputed that Royal Brush timely sought administrative
 review and judicial review of the evasion determination
 pursuant to those provisions.
    Nevertheless, the government argues that we do not
 have jurisdiction because Royal Brush failed to protest the
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 8                    ROYAL BRUSH MANUFACTURING, INC. v. US




 liquidations within the statutory time period. The govern-
 ment notes that under 

(c)(3)(A), a provi-
 sion separate from the EAPA, if a party wishes to protest
 the liquidation of an entry, it must do so within 180 days
 of the liquidation. Failure to file a protest renders the liq-
 uidation “final and conclusive upon all persons (including
 the United States and any officer thereof).” 

(a). Royal Brush did not timely file such a protest.
     We have held that “once liquidation occurs the trial
 court is powerless to order the assessment of duties at any
 different rate.” SKF USA, Inc. v. United States, 

 (Fed. Cir. 2008); see also Zenith Radio Corp. v.
 United States, 

 (Fed. Cir. 1983). Because
 courts are powerless to change the assessment of duties,
 we have held that cases seeking a change in duties after
 liquidation are moot. SFK, 

. The govern-
 ment argues that this line of cases applies to cases involv-
 ing the EAPA, such as this one.
     The government misconstrues the nature of this pro-
 ceeding. Royal Brush did not bring a challenge to a liqui-
 dation determination; it brought a challenge to an evasion
 determination pursuant to the statute specifically author-
 izing such challenges. That statute does not require a liq-
 uidation protest as a condition of review. Indeed, Royal
 Brush had nothing to protest in the liquidation determina-
 tions of its first three entries because Royal Brush was not
 assessed any antidumping duties. 4




     4   Pauline Garcia, a CBP employee with the ability to
 review liquidation data in CBP’s database, confirmed that
 “CBP did not assess antidumping duties on th[ese]
 entr[ies]” in her declaration supporting the government’s
 motion to dismiss. Def.-Appellee the United States’ Mot. to
 Dismiss for Lack of Jurisdiction Ex. A ¶¶ 5–7, ECF No. 62.
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 ROYAL BRUSH MANUFACTURING, INC. v. US                         9



     At least as to these three entries it is clear that the case
 is not moot. Apart from the possibility that CBP might suc-
 cessfully seek reliquidation of the entries, the evasion de-
 termination makes Royal Brush potentially liable for civil
 penalties, see 

(h), including a “penalty in
 an amount not to exceed the domestic value of the mer-
 chandise,” 

 § 1592(c)(1). See id. § 1592(a)–(c) (noting
 that civil penalties can be assessed for fraudulently or neg-
 ligently introducing merchandise into the United States by
 means of “any document or electronically transmitted data
 or information, written or oral statement, or act which is
 material and false”). The government has given no indica-
 tion that it intends to forgo these remedies. This case is
 not moot. See F.C.C. v. Fox Television Stations, Inc., 

 (2012) (finding no mootness largely because
 the agency had the authority to increase future penalties);
 Hyosung TNS Inc. v. Int’l Trade Comm’n, 

 (Fed. Cir. 2019) (“[A] case may remain alive based on
 collateral consequences, which may be found in the pro-
 spect that a judgment will affect future litigation or admin-
 istrative action.”) (internal quotation omitted).
     We need not determine for purposes of this case what
 remedies Royal Brush may have to recover the assessed
 duties with respect to their two entries that were subject to
 antidumping duties upon liquidation since Royal Brush, in
 this case, has not sought such relief.
                    II.    Standard of Review
     This Court applies the same standard of review as ap-
 plied by the CIT in its review of the administrative record.
 BMW of N. Am. LLC v. United States, 

 (Fed. Cir. 2019). This requires this Court to determine
 “whether any determination, finding, or conclusion is arbi-
 trary, capricious, an abuse of discretion, or otherwise not
 in accordance with law.” 

(g)(2)(B).
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 10                  ROYAL BRUSH MANUFACTURING, INC. v. US




                       III.   Due Process
     We first address Royal Brush’s contention that CBP’s
 reliance on the redacted information in the information in
 the Attaché Report and Verification Report deprived it of
 due process under the Fifth Amendment of the Constitu-
 tion. We have previously held that importers in antidump-
 ing proceedings are entitled to procedural due process. 5
 The government agrees that importers in evasion proceed-
 ings enjoy rights to procedural due process. 6
     One “relatively immutable” principle of due process is
 that “where governmental action seriously injures an indi-
 vidual, and the reasonableness of the action depends on
 fact findings, the evidence used to prove the [g]overnment’s
 case must be disclosed to the individual so that he has an
 opportunity to show that it is untrue.” Greene v. McElroy,
 

 (1959). This immutable principle applies
 to cases where facts have been withheld from an entity dur-
 ing an administrative proceeding. 

 (gathering


      5  See PSC VSMPO-Avisma Corp. v. United States,
 

, 761–66 (Fed. Cir. 2012) (“The due process
 right to which [the importer] was entitled [in the anti-
 dumping proceeding] was the right to notice and a mean-
 ingful opportunity to be heard.”) (internal quotations and
 citation omitted); NEC Corp. v. United States, 

 (Fed. Cir. 1998) (“NEC[’s] claim[] that the de-
 termination of certain contested facts regarding the pend-
 ing antidumping investigation against it was tainted by
 prejudgment . . . is a procedural due process claim of the
 kind generally cognizable under the Fifth Amendment of
 the Constitution.”).
     6   The government concedes that Royal Brush has “a
 procedural due process right to notice and a meaningful op-
 portunity to be heard,” Gov’t Br. 29 (internal quotations
 and citation omitted), and that this right to due process is
 “undisputed,” id. at 37.
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 ROYAL BRUSH MANUFACTURING, INC. v. US                       11



 cases); Ramirez v. Dep’t of Homeland Sec., 

,
 1349–53 (Fed. Cir. 2020); Doty v. United States, 

 (Fed. Cir. 1995) (“The agency’s . . . withholding
 of the evidence on which [it] purported to rely . . . w[as]
 . . . egregiously removed from the fairness required of an
 agency in its administrative responsibilities . . . .”). 7
      One particular example cited in Greene, Ohio Bell Tel-
 ephone Co. v. Public Utilities Commission of Ohio, 

 (1937), is similar to this case. In Ohio Bell, the Public
 Utilities Commission set rates for Ohio Bell’s services and
 directed Ohio Bell to issue refunds based on the rate calcu-
 lations. 301 U.S. at 294–99. In so doing, the Public Utili-
 ties Commission relied on price trend information that was
 not provided to Ohio Bell. 

 at 297–301. The Supreme
 Court held that this was a violation of due process: “To fix



     7    See also Stone v. F.D.I.C., 

 (Fed. Cir. 1999) (“Procedural due process guarantees are
 not met if the [party adverse to the agency action] has no-
 tice only of certain charges or portions of the evidence and
 the deciding official considers new and material infor-
 mation.”); Ralls Corp. v. Comm. on Foreign Inv. in U.S.,
 

 (D.C. Cir. 2014) (“[D]ue process requires,
 at the least, that an affected party . . . be given access to
 the unclassified evidence on which the official actor relied
 and be afforded an opportunity to rebut that evidence.”);
 Am.-Arab Anti-Discrimination Comm. v. Reno, 

 (9th Cir. 1995) (“[T]he very foundation of the
 adversary process assumes that use of undisclosed infor-
 mation will violate due process because of the risk of er-
 ror.”); Sykes v. Apfel, 

 (3d Cir. 2000);
 Ralpho v. Bell, 

 (D.C. Cir. 1977); Henry
 J. Friendly, Some Kind of Hearing, 

,
 1283 (1975) (“There can . . . be no fair dispute over the right
 to know the nature of the evidence on which the adminis-
 trator relies.”).
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 12                   ROYAL BRUSH MANUFACTURING, INC. v. US




 the value of these components [relied upon for the rate de-
 termination] the Commission had recourse to statistics
 which it collected for itself. There was no suitable oppor-
 tunity through evidence and argument to challenge the re-
 sult.” 

 (internal quotations and citation omitted).
 The Court noted that “much that [agencies] do within the
 realm of administrative discretion is exempt from supervi-
 sion if [constitutional] restraints have been obeyed. All the
 more insistent is the need, when power has been bestowed
 so freely, that the inexorable safeguard of a fair and open
 hearing be maintained in its integrity.” 

 (internal
 quotations and citation omitted). The rule of Ohio Bell and
 related cases can simply be seen as the outcome of the bal-
 ancing test later articulated in Mathews v. Eldridge, 

 (1976).
     In short, the law is clear that, in adjudicative adminis-
 trative proceedings, due process “includes the right to know
 what evidence is being used against one.” Robbins v. U.S.
 R.R. Ret. Bd., 

 (5th Cir. 1979). We are
 aware of no court holding that confidential business infor-
 mation is exempt from this constitutional requirement of
 disclosure to regulated parties in administrative
 proceedings brought against them. 8 The government cites



      8  This requirement may not apply in administrative
 proceedings that are deemed legislative in nature. In Nor-
 wegian Nitrogen Products Co. v. United States, 

 (1933), a case not cited by the parties, a new duty rate
 was assessed on sodium nitrate, based largely on the pro-
 duction costs American manufacturers disclosed to the
 Tariff Commission. 288 U.S. at 297–298. “The information
 as to costs was subject to a pledge of secrecy; the manufac-
 turers taking the position, to which the Commission ac-
 ceded, that costs were trade secrets, to be withheld from
 competitors.” 

. As such, the information was not
 disclosed to a party affected by the change in duties that
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 ROYAL BRUSH MANUFACTURING, INC. v. US                     13



 none. 9 There is no legitimate government interest here in
 refusing to provide confidential business information to


 wished to challenge that change. 

. The
 Court upheld the Commission’s refusal to disclose because
 the agency was performing a legislative function. 

 (“What is done by the Tariff Commission and the Pres-
 ident in changing the tariff rates to conform to new condi-
 tions is in substance a delegation, though a permissible
 one, of the legislative process.”); see also United States v.
 Fla. E. Coast Ry. Co., 

, 245–46 (1973) (finding
 no constitutional right to oral argument in the agency pro-
 ceeding where “[n]o effort was made to single out any par-
 ticular railroad” and the proceedings were legislative in
 nature); Gilda Indus., Inc. v. United States, 

,
 1274–75, 1284 (Fed. Cir. 2006) (finding that an importer
 had no right to procedural due process protections when
 challenging the inclusion of toasted breads on a retaliation
 list created by the United States Trade Representative to
 retaliate against a European ban on certain American
 meat imports). This is, of course, quite different from the
 present situation. We have held that the relatively analo-
 gous antidumping proceedings are “‘relatively formal ad-
 ministrative procedure[s]’ that adjudicate parties’ rights.”
 Pesquera Mares Australes Ltda. v. United States, 

 (Fed. Cir. 2001) (quoting United States v. Mead
 Corp., 

 (2001)); see also NEC Corp., 

 (rejecting the argument that the assessment
 of antidumping duties on an individual importer was “a
 challenge to the [g]overnment’s legislative power to regu-
 late NEC’s conduct in foreign commerce”). Evasion deter-
 minations are similarly adjudicative.
      9   The government notes that, in Reno, the court
 stated that “courts have allowed the Government to keep
 certain information confidential.” 

. How-
 ever, “the exceptions to full disclosure are narrowly circum-
 scribed,” and involve, for instance, state secrets and
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 14                   ROYAL BRUSH MANUFACTURING, INC. v. US




 Royal Brush when all government concerns about the ne-
 cessity of secrecy can be alleviated by issuing a protective
 order, as discussed below.
      There is also no question here that CBP relied upon
 factual information not provided to Royal Brush to support
 its determination that Royal Brush was evading duties by
 transshipping Chinese pencils through the Philippines. In
 the Notice of Final Determination as Evasion, CBP stated:
      Based on entry information and CBP’s calculations
      of Philippines Shipper’s production capacity using
      data supplied by Philippines Shipper and infor-
      mation obtained at verification, CBP determined
      that total U.S. imports of pencils by all importers
      during 2018 that were identified with Philippines
      Shipper as manufacturer exceeded the company’s
      annual production capacity by [] percent.
 J.A. 105. CBP used that number to support its evasion de-
 termination by explaining that, based on its calculations,
 the Philippines manufacturer “must have been shipping
 large volumes of pencils to the United States from sources
 other than its own production facilities.” J.A. 105–06. Be-
 fore the Final Determination as to Evasion, Royal Brush
 did not have access to the data that led CBP to this conclu-
 sion. This was not remedied after remand from the CIT to
 CBP, as all CBP did was replace blank brackets with either
 “number” or “no.” 10




 matters of national security. Id.; see also Ralls Corp., 

 (“[D]ue process does not require disclosure of
 classified information supporting official action.”);
 Abourezk v. Reagan, 

 (D.C. Cir. 1986).
     10   Royal Brush also argues that it was improperly de-
 nied access to other redacted information in the Verifica-
 tion report, such as photographs, “identifying information
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 ROYAL BRUSH MANUFACTURING, INC. v. US                        15



      CBP also relied on the redacted photographs in the
 CBP Attaché Report in its evasion determination. The Fi-
 nal Determination as to Evasion specifically mentions one
 such photograph in its recitation of “information on the rec-
 ord [that] supports the conclusion that” Royal Brush had
 engaged in transshipping. J.A. 106. The Administrative
 Determination on Appeal states that “[t]he CBP Attaché’s
 report, complete with observations and photographs, une-
 quivocally demonstrates repackaging of Chinese pencils
 into boxes labeled as made in the Philippines and destined
 for the United States.” J.A. 94–95. The public summaries
 provided after remand provided no meaningful infor-
 mation. Descriptions such as “photo of box with labeled
 finished merchandise” and “photo of labeled boxes” did not
 provide Royal Brush with enough information to know
 what evidence was being used against it. J.A. 1378–79.
     In sum, CBP relied on factual information that was not
 provided to Royal Brush to determine that Royal Brush
 had evaded duties. This, in and of itself, is a clear violation
 of due process.
     The government nonetheless argues that confidential
 business information cannot not be disclosed absent a stat-
 ute or regulation authorizing a protective order. 11 In this



 about certain invoices and purchase order numbers,” and
 “the identity of Manufacturer personnel whom the agency
 interviewed.” Appellant’s Br. at 22. However, Royal Brush
 makes no specific citations to where CBP relied on this in-
 formation in its determination of evasion.
     11  In its Final Remand Determination, CBP deter-
 mined:
     The EAPA statute and applicable regulations do
     not provide for a mechanism, such as an adminis-
     trative protective order (APO), for disclosure of con-
     fidential business information to interested
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 16                   ROYAL BRUSH MANUFACTURING, INC. v. US




 respect, the government relies on the general language of
 the Trade Secrets Act, 

, and cases support-
 ing the proposition that agencies generally must be able to
 regulate the conduct of their own proceedings (e.g., PSC
 VSMPO-Avisma Corp., 688 F.3d; Cook v. United States,
 

 (Ct. Cl. 1976)), none of which approves the
 refusal to provide confidential business information to an
 adverse party that the agency relied on in reaching its ad-
 judicative decision. The Trade Secrets Act prohibits any
 government employee from disclosing trade secret infor-
 mation “to any extent not authorized by law.” 

.
     We have no doubt that a release of information is “au-
 thorized by law” within the meaning of the Trade Secrets
 Act if that release is required as a matter of constitutional
 due process, as is the case here. The government does not
 dispute that confidential business information may
 properly be disclosed under the Trade Secrets Act where
 there is a provision for an authorized protective order, 12
 but urges that neither the EAPA nor the regulations gov-
 erning such proceedings contain such a provision. The gov-
 ernment contends that “there is simply no legal basis on


      parties. As such, CBP is not authorized to disclose
      business confidential information to interested
      parties or their authorized representatives.
 J.A. 36 (footnote omitted).
     12  See Qwest Comms. Int’l Inc. v. F.C.C., 

, 1173–76 (D.C. Cir. 2000); United States v. W.R.
 Grace, 

 (D. Mont. 2006); Agility
 Public Warehousing Co. K.S.C. v. Dep’t of Def., 

 (D.D.C. 2015). The government concedes that
 “the absence of statutory authorization may not necessarily
 preclude agencies from promulgating a regulation to gov-
 ern an [administrative protective order] procedure.” Gov’t
 Br. 31.
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 ROYAL BRUSH MANUFACTURING, INC. v. US                      17



 which Royal Brush can establish an entitlement through
 CBP to the Philippines Shipper’s confidential business in-
 formation” because “[n]either the EAPA statute nor CBP’s
 regulations permits, let alone requires, CBP to release con-
 fidential business information to Royal Brush.” Gov’t Br.
 34–35.
      As best we can make out, the government’s argument
 is that due process does not require public disclosure of con-
 fidential business information relied on in adjudication but
 only requires disclosure to affected parties under protective
 orders. Therefore, the government asserts, unless a pro-
 tective order is authorized by law, disclosure is not author-
 ized by law. In other words, the government can avoid
 compliance with due process requirements by the simple
 expedient of failing to provide for a protective order in a
 statute or regulation. We are aware of no case supporting
 any such extraordinary theory, and it is untenable on its
 face. The right to due process does not depend on whether
 statutes and regulations provide what is required by the
 constitution.
      The government’s concern with public disclosure of the
 confidential information is, in any event, unwarranted be-
 cause we conclude that CBP has the inherent authority to
 utilize protective orders in appropriate circumstances. In
 other words, because the Constitution authorizes, and in-
 deed requires, the release of confidential business infor-
 mation in this case, the Trade Secrets Act does not stand
 in the way of such release. And because CBP has the in-
 herent authority to issue protective orders, confidential
 business information released to Royal Brush can be pro-
 tected from public disclosure and there would be no risk
 that in narrowly releasing the information to Royal Brush
 CBP would compromise the trade secrets.
     To be sure, release of confidential business information
 is generally governed and protected by statutes or regula-
 tions that provide for protective orders. For example, in
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 18                   ROYAL BRUSH MANUFACTURING, INC. v. US




 proceedings determining whether antidumping and coun-
 tervailing duties should be imposed, 19 U.S.C.
 § 1677f(c)(1)(A) requires the agency to, upon request,
 “make all business proprietary information presented to, or
 obtained by it, during a proceeding [with certain excep-
 tions] available to interested parties who are parties to the
 proceeding under a protective order.” But it is well estab-
 lished that courts have the inherent authority to adopt pro-
 cedures to manage their own affairs. See Dietz v. Bouldin,
 

 (2016); Gumbel v. Pitkin, 

 (1888). So do administrative agencies. “Absent constitu-
 tional constraints or extremely compelling circumstances
 the administrative agencies should be free to fashion their
 own rules of procedure and to pursue methods of inquiry
 capable of permitting them to discharge their multitudi-
 nous duties.” Vt. Yankee Nuclear Power Corp. v. Nat. Res.
 Def. Council, Inc., 

 (1978) (internal quo-
 tations and citations omitted). The leading administrative
 law treatise recognizes that “[t]he administrative judge
 generally has the authority to fashion protective orders.” 2
 Admin. L. & Prac. § 5:40 (3d ed. 2023).
     The EAPA statute and associated regulations do not
 bar protective orders. While the statute concerning as-
 sessing antidumping and countervailing duties includes a
 specific provision authorizing protective orders, 19 U.S.C.
 § 1677f(c)(1)(A), and a similar provision was incorporated
 in the original House bill that would later become the
 EAPA but left out of the final legislation, 13 there is no



      13 The earlier version of the bill stated: “For each in-
 vestigation initiated . . . the Commissioner shall establish
 procedures for the submission of business proprietary in-
 formation under an administrative protective order.” H.R.
 3057, 112th Cong. § 101(a) (2011). The protective order
 provision was explicitly mentioned in a House Report ex-
 plaining how Commerce, the agency then proposed to have
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 ROYAL BRUSH MANUFACTURING, INC. v. US                      19



 indication that Congress objected to protective orders. Nor
 does the history of the EAPA regulation suggest such that
 protective orders are unauthorized or undesirable. 14 The
 government offers no reason that the use of protective or-
 ders would impair the function of the EAPA process. Given
 the well-established practice of utilizing protective orders
 in litigation15 and the absence of any statutory or


 authority over evasion determinations, would implement
 the EAPA. See H.R. REP. NO. 114-114, pt. 1, at 86 (2015)
 (“Authorized representatives of interested parties can ob-
 tain access to business proprietary information through an
 administrative protective order.”). There is no indication
 as to why this provision did not make it into the final ver-
 sion of the statute.
     14   The notice of rulemaking promulgated to imple-
 ment the EAPA mentioned protective orders only to say
 that
     as there is no administrative protective order
     (APO) process provided for in the EAPA, parties in-
     volved in an EAPA proceeding are advised not to
     submit information to CBP that they obtained ex-
     clusively under a protective order from another
     agency, court, or proceeding unless the scope of
     that protective order explicitly covers the EAPA in-
     vestigation or proceeding under consideration. Ac-
     cordingly, parties are advised to exercise caution
     when submitting information to CBP in an EAPA
     proceeding.
 

, 56,479 (Aug. 22, 2016). This state-
 ment was made in the subsection discussing submission of
 material to CBP.
     15 We note that the CIT rules themselves provide for
 such orders. See U.S. Ct. Int’l Trade R. 26(c) (“The court
 may, for good cause, issue an order to protect a party or
 person . . . requiring that a trade secret or other
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 20                   ROYAL BRUSH MANUFACTURING, INC. v. US




 regulatory prohibition of such orders, we have no doubt
 that CBP has inherent authority to provide protective or-
 ders in EAPA proceedings before the agency.
      Finally, the government argues that “Royal Brush . . .
 fails to show that lack of access to [confidential business]
 information has caused it prejudice.” Gov’t Br. 41. How-
 ever, when a due process violation has occurred because of
 a denial of access to new and material information upon
 which an agency relied, no additional showing of prejudice
 is required. See Stone v. F.D.I.C., 

 (Fed. Cir. 1999) (“[W]hen a procedural due process viola-
 tion has occurred because of ex parte communications, such
 a violation is not subject to the harmless error test.”); see
 also Ramirez, 975 F.3d at 1352–53. This is not a situation
 in which the evidence “played a negligible role” in the
 agency’s final decision. See Tennessee Secondary School
 Athletic Ass’n v. Brentwood Academy, 

, 303 n.4
 (2007). In any event, on its face, the denial of access to the
 redacted information here was prejudicial because it de-
 nied access to information on which the agency relied in
 reaching its decision.
     There is no basis for CBP to violate Royal Brush’s due
 process rights by failing to provide the information on
 which it relied to Royal Brush.
                         IV.    Rebuttal
     We turn to the issue of Royal Brush’s right to rebuttal.
 As Greene and other cases cited earlier make clear, the
 right to rebut has constitutional dimensions. See, e.g.,
 Greene, 

; Ralls Corp., 

; see
 also Ward v. U.S. Postal Serv., 

, 1279 (Fed.


 confidential research, development, or commercial infor-
 mation not be revealed or be revealed only in a specified
 way.”). The CIT thus has the general authority to issue
 protective orders, including in EAPA cases. See supra.
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 ROYAL BRUSH MANUFACTURING, INC. v. US                        21



 Cir. 2011) (requiring an “opportunity to respond” where a
 “deciding official received new and material information by
 means of ex parte communications”) (internal quotations
 and citations omitted). But here the regulations them-
 selves also provide that right. 

(c)(1)
 states: “If CBP places new factual information on the ad-
 ministrative record [in an evasion determination] on or af-
 ter the 200th calendar day after the initiation of the
 investigation . . . , the parties to the investigation will have
 ten calendar days to provide rebuttal information to the
 new factual information.” In accordance with our decision
 today, Royal Brush will be provided access to the numerical
 data used to calculate the production capacity and the rel-
 evant photographs, and this information will be placed in
 the administrative record subject to an appropriate protec-
 tive order. We need not reach the constitutional question
 of a right to rebuttal because we conclude that the regula-
 tions themselves provide the right to rebut because CBP
 relied on new factual information.
      The government’s theory is that the rebuttal regulation
 is inapplicable because the Verification Report relies on
 only previously provided data. There is no question that
 this numerical data is new factual information that, by reg-
 ulation, Royal Brush is entitled to rebut. The Verification
 Report did not simply rely on data provided previously.
 CBP’s own description of the verification process in the Ad-
 ministrative Determination on Appeal demonstrates that
 new information was provided in the Verification Report:
 “[t]he purpose for the CBP [verification visit] was to deter-
 mine whether the Philippine supplier could show that it
 was capable of producing the amount of pencils allegedly
 manufactured for Royal Brush.” J.A. 95. This is further
 demonstrated by CBP’s statements in the Final Determi-
 nation as to Evasion: “Based on entry information and
 CBP’s calculations of Philippines Shipper’s production ca-
 pacity using data supplied by Philippines Shipper and in-
 formation obtained at verification, CBP determined that
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 22                    ROYAL BRUSH MANUFACTURING, INC. v. US




 total U.S. imports of pencils by all importers during 2018
 that were identified with Philippines Shipper as manufac-
 turer exceeded the company’s annual production capacity
 by [redacted] percent.” J.A. 105 (emphasis added).
                         CONCLUSION
     We remand this case to the CIT with instructions to
 remand to CBP. 16 On remand, CBP must provide Royal
 Brush with the aforementioned redacted information and
 give it an opportunity for rebuttal.
                VACATED AND REMANDED
                            COSTS
 Costs to Appellant.




      16Royal Brush also argues that CBP’s evasion deter-
 mination was arbitrary and capricious and not supported
 by substantial evidence. Because the case is being re-
 manded for further consideration in light of this opinion,
 we need not decide whether CBP’s actions were arbitrary
 and capricious at this time.