DOJ Asks Trade Court to Stay EAPA Pace Pending Scope Determination
The Court of International Trade should stay a case challenging an Enforce and Protect Act finding of evasion while another related case goes through remand, DOJ argued in a May 12 motion. The court previously denied a joint motion to stay the case in September, finding that the claims in the EAPA case were "largely independent of Commerce's scope ruling" (see 2209270026) (Far East American v. U.S., CIT # 22-00213).
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In April, the court remanded a Commerce scope determination on two-ply hardwood products from China (see 2304210050). The court’s decision in the case, Finewood Vietnam Finewood v. U.S., creates a “pressing need” for a stay that offsets the Court’s concerns regarding a further delay, DOJ argued. A "substantial amount of the entries in dispute" in this case are hardwood plywood incorporating two-ply from China. The "key factual issue" for those entries is whether or not they are subject to the antidumping and countervailing duty orders on hardwood plywood from China, which is directly connected to the outcome of Finewood, DOJ said.
One of the key elements of evasion is whether the importers entered covered merchandise, which Finewood is still deciding, DOJ said. In light of the court's decision in Finewood that found the scope language of the orders to be “unambiguous” and its remand to Commerce to issue a ruling consistent with that language, DOJ argued that the court should consider the "changes in circumstances" since the last stay request when deciding on the government's motion.
If the Court’s decision in Finewood becomes final, "a substantial amount of the merchandise at issue" can't be legally considered "covered merchandise" and CBP may need to reconsider its evasion determination. CBP can't currently establish to what extent the importers engaged in evasion "because an essential element" remains undecided, DOJ said.