EAPA Alleger Urges CIT to Find No Due Process Violations in Plywood AD/CVD Evasion Case

Importers found to have evaded antidumping and countervailing duty orders on hardwood plywood from China argue for a greater due process rights in evasion investigations than Congress deemed fit to provide, the evasion alleger Coalition for Fair Trade in Hardwood Plywood said in a Dec. 30 brief at the Court of International Trade supporting CBP's Enforce and Protect Act finding. Responding to a motion for judgment from the importers, led by American Pacific Plywood, the coalition said that the statute doesn't require the disclosure of confidential information during EAPA investigations (American Pacific Plywood, Inc. et al. v. U.S., CIT Consol. #20-03914).

The coalition's brief comes in response to the importers' challenge of CBP's conduct during the investigation (see 2108110034). Prior to the investigation, though, in 2018, the Commerce Department imposed antidumping and countervailing duty orders on hardwood plywood from China. Then, in what the plaintiffs characterize as a move following the "hallowed tradition of enterprising American capitalism," Chinese plywood manufacturers moved their operations to Cambodia to avoid the antidumping and countervailing duties that were imposed. The evasion allegers responded by charging that the plaintiffs had been selling Chinese hardwood plywood transshipped through Cambodia.

CBP's Trade Remedy Law Enforcement Directorate conducted an investigation of duty evasion, coming away with an affirmative finding for the plaintiffs. Due to EAPA regulations, TRLED was able to impose interim measures without timely notification to plaintiffs, in what the plaintiffs alleged was a clear violation of their due process rights. The plaintiffs also argued that CBP violated their due process rights by failing to provide them with access to business proprietary information.

In its response, the coalition relied heavily on the two most high-profile EAPA rulings from the trade court to date, each of which touches on the question of due process rights. The court even initially remanded one of the cases, Royal Brush Manufacturing v. U.S., for CBP's insufficient public summaries of the confidential information. CBP's determination was ultimately sustained, even though the parties accused of evasion were never given access to the confidential information itself during the investigation (see 2111010036). The other case, Diamond Tools Technology v. U.S., CIT found that no due process rights were violated during an EAPA investigation, holding that the respondent wasn't denied a "meaningful opportunity to participate in the administrative proceeding" (see 2111050040).

The coalition said that the court has already rejected the plaintiffs' due process claims. "In Royal Brush I, for example, the Court remanded an EAPA determination to CBP to provide public summarizations of certain site-visit reports and photographs on which it relied heavily in making an affirmative determination of evasion," the brief said. "But the Court simultaneously observed that it was not holding that the plaintiff importer was entitled to receive confidential information."

The coalition also argued that the plaintiffs don't "persuasively explain" why the public summaries were so inefficient as to warrant complete access to the confidential information or how this information would have helped them during the investigation. "Despite having only the public memoranda, plaintiffs and plaintiff-intervenors were given the opportunity -- which they took advantage of -- to submit data to support their view of plaintiff-intervenors' production capabilities," the brief said. "... The Coalition therefore respectfully submits that this Court should rule in favor of CBP with respect to plaintiffs' and plaintiff-intervenors' due process arguments."