CIT Sends Back EAPA Case on Chinese Plywood for CBP to Reconsider Scope Ruling, Royal Brush

The Court of International Trade in a Dec. 14 opinion granted the government's request for a voluntary remand in a duty evasion case on hardwood plywood from China in light of two recent judicial opinions. One decision saw the Commerce Department reverse course on whether exporter Vietnam Finewood Co.'s goods are subject to the antidumping and countervailing duty orders, while the other said it was illegal for CBP not to give parties to Enforce and Protect Act actions access to business confidential information.

Judge Mark Barnett said that it's "appropriate for CBP to take account of Commerce's revised covered merchandise determination" and to reconsider the requirement to share confidential data established by the U.S. Court of Appeals for the Federal Circuit in Royal Brush Manufacturing v. U.S. However, compliance with Royal Brush is needed "only to the extent that Commerce's negative covered merchandise determination is not determinative based on the record before CBP," the judge noted.

In the EAPA case, CBP was initially unsure of whether Finewood's Vietnamese products were subject to the AD/CVD orders on Chinese plywood, referring the question to Commerce. The agency said that Finewood's two-ply panels of Chinese origin, further processed in Vietnam to include face and back veneers of non-coniferous wood, are covered by the orders. However, in a separate action at CIT, Far East American v. U.S., Commerce changed course -- a move that was upheld by the court (see 2308220033).

The U.S. then asked for a remand in the present EAPA spat to consider the implications of Far East American and Royal Brush. Over objections from the petitioner, Barnett granted the request, though he denied the government's request to amend the judicial protective order to govern any remand proceeding before CBP. The judge said amendment of the order "appears unnecessary," since CBP can issue its own protective order. The court will deny the request "without prejudice in the event circumstances require the Government to resubmit the request with additional support for its necessity," the judge added.

(Far East American v. United States, Slip Op. 23-176, CIT Consol. # 22-00213, dated 12/14/23; Judge: Mark Barnett; Attorneys: Gregory Menegaz of deKieffer & Horgan for plaintiffs Far East American and Liberty Woods International; Frederic Van Arnam of Barnes Richardson for consolidated plaintiff American Pacific Plywood; Thomas Cadden of Cadden & Fuller for consolidated plaintiff InterGlobal Forest; and Elizabeth Speck for defendant U.S. government)