Stay in EAPA Case Would Be of Limited Use, Importer Argues at CIT

The Court of International Trade should not stay a case challenging an Enforce and Protect Act finding of evasion while another related case on whether the products were covered by the scope of the relevant antidumping and countervailing duty orders goes through remand, importers argued in a May 24 motion (Far East American, et. al. v. U.S., CIT # 22-00213).

The court denied a joint motion to stay the case in September, finding that claims in the EAPA case were "largely independent" of any scope ruling (see 2209270026). DOJ asked the court again in May for a stay after CIT issued a remand in the scope case. One of the key elements of evasion is whether the importers entered covered merchandise, which the scope case is still deciding, DOJ said (see 2305150036).

The plaintiffs, headed by Far East American, echoed CIT's September denial of the first stay request, arguing that the "substantive violations of the EAPA statute" allegedly committed by CBP are largely independent of whether or not the hardwood plywood from China at issue was within the scope of antidumping and countervailing duty orders.

Far East said that a stay would delay resolution of claims specific to CBP's EAPA decision "for years" and that the financial resources of the plaintiffs have "been severely impacted" by the cash deposit requirements and restrictions on their import security bonds. The plaintiffs asked for a quick resolution in order to clear "longstanding contingent liabilities" from their books.

The EAPA was initiated nearly five years ago in 2018 and the timing of the scope case, including any remands and a possible appeal to the U.S. Court of Appeals for the Federal Circuit, remains uncertain, Far East said. The plaintiffs should not have to bear two consecutive proceedings that could take twice the amount of time for the court to resolve, Far East said.

The findings in the scope case are of limited use to the EAPA matter, Far East said. Commerce can only consider the two-ply scope issue and so, even if the court reserved the scope decision, a remand to CBP in this case could result in CBP affirming its decision "based on reasoning that perpetuates CBP's errors."