CIT Upholds Exclusion of Certain Hardwood Plywood From AD/CVD Scope

The Court of International Trade on Aug. 22 upheld the Commerce Department's exclusion of hardwood plywood made by Vietnam Finewood using two-ply panels imported into Vietnam from China from the scope of the antidumping and countervailing duty orders on hardwood plywood from China. Judge Mark Barnett in an Aug. 22 opinion said the move was in line with his prior order instructing the agency to "issue a scope ruling consistent with the unambiguous terms" of the orders' scope.

No parties contested the remand results, though petitioner Coalition for Fair Trade in Hardwood Plywood agreed with Commerce's decision to issue the remand under protest given that it thinks the original scope decision was correct.

An attorney close to the matter said the decision has a relatively small impact since Commerce has already found that Vietnam Finewood's products circumvent the AD/CVD orders and will be thus considered Chinese goods.

Greg Menegaz, counsel for plaintiffs led by Far East American, said in an email that he "anticipated this decision because Commerce explained upon remand that the definitive findings of the court that its original conclusions were unsupported by any evidence left it no choice but to return a finding that two ply panels are outside the scope of the Orders. This is a great relief to common-sense importers who were indeed correct in reading the scope to require at least three plies.”

The agency imposed the orders in 2018 and received a scope referral as part of an Enforce and Protect Act investigation on Finewood and its U.S. customers that began later that year. The scope referral asked whether the two-ply cores further processed in Vietnam were within the orders' scope. Commerce said they were, given the ambiguous scope language and the fact that the panels were not substantially transformed in Vietnam.

Barnett ruled that Commerce illegally read ambiguity into the scope (see 2304210050). The judge disagreed with Commerce that the phrase "certain veneered panels" in the scope language covered goods separate from "hardwood plywood" and could include two-ply panels. On remand, the agency, under protest, excluded Vietnam Finewood's goods from the orders.

(Far East American v. United States, Slip Op. 23-122, CIT Consol. # 22-00049, dated 08/22/23; Judge: Mark Barnett; Attorneys: Gregory Menegaz of deKieffer & Horgan for plaintiffs led by Far East American; Thomas Cadden of Cadden & Fuller for consolidated plaintiff Interglobal Forest; Hardeep Josan for defendant U.S. government; Timothy Brightbill of Wiley Rein for defendant-intervenor Coalition for Fair Trade in Hardwood Plywood)