CBP Sticks With Evasion Finding on Plywood Importers After Implementing APO
CBP continued to find that three importers evaded the antidumping and countervailing duty orders on hardwood plywood from China on remand at the Court of International Trade, after providing the companies with access to the confidential information in the Enforce and Protect Act proceeding (American Pacific Plywood v. U.S., CIT # 20-03914).
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The trade court previously sustained the evasion finding in July 2023, ruling that CBP didn't misapply the substantial evidence standard in declaring that importers American Pacific Plywood, U.S. Global Forest and InterGlobal Forest transshipped their plywood entries in Cambodia (see 2306300033). Nevertheless, the U.S. asked for a voluntary remand at the U.S. Court of Appeals for the Federal Circuit following the appellate court's ruling in Royal Brush Manufacturing v. U.S.
In Royal Brush, the Federal Circuit said that CBP violated due process rights by not providing access to the business confidential information in EAPA proceedings (see 2307270038).
On remand, CBP created an administrative protective order for the parties and gave the importers a chance to submit rebuttal information. The only company to do so was InterGlobal, which submitted a declaration from its chief operating officer Kurt Winn and a declaration from Fu Wenjie, the general manager of Cambodian manufacturer LB Wood. InterGlobal also submitted a host of claims against CBP's evasion finding.
The agency continued to find that the companies evaded the AD/CVD orders, addressing InterGlobal's new information and claims. CBP said the declarations submitted by the importer, "if anything, [support] the conclusions previously reached by the agency."
For instance, the EAPA petitioner argued that the claim that an unnamed company gave pricing information to InterGlobal for plywood which would be shipped from Cambodia is "highly suspicious." CBP noted that Winn's declaration said the unnamed company only decided to invest in LB Wood in December 2017, just before the start of the investigation period, but that the company was able to give InterGlobal pricing information for plywood shipped from Cambodia.
CBP said it agrees with the petitioner "that the pricing of merchandise to be manufactured at a given facility would require an understanding of the particular factory, its operating expenses, and the required materials and related costs." InterGlobal failed to show that either it or LB Wood had prior experience in the Cambodian plywood market and thus would "lack knowledge to accurately price the goods for a potential buyer."
The agency similarly dispatched with InterGlobal's written arguments made on remand. The importer said CBP still violated Royal Brush since it didn't identify which parts of the "massive confidential administrative record" it relied on in making its evasion finding. The agency said it gave access to all confidential information it relied on when it "uploaded the administrative record to CMS." In addition and "more simply, business confidential information was bracketed throughout the record and in CBP’s decisions."
InterGlobal also claimed that, per CIT's ruling in Diamond Tools Technology v. U.S., "culpability is required" for an evasion finding. CBP said the importer didn't properly apply this ruling, since it found that an importer didn't make material false statements since it was complying with guidance from the Commerce Department. "That is not analogous to the situation here, where the importer points to no agency guidance upon which it was relying to discern whether its entries were subject to the AD/CVD Orders," the agency said.