2023-19043. Certain Hardwood Plywood Products From the People's Republic of China: Notice of Court Decision Not in Harmony With the Results of Antidumping and Countervailing Duty Scope Ruling; Notice of Amended Final Results

AGENCY:

Enforcement and Compliance, International Trade Administration, Department of Commerce.

SUMMARY:

On August 22, 2023, the U.S. Court of International Trade (CIT) issued its final judgment in Far East American, Inc., et al., v. United States, Consol. Court no. 22–00049 ( Far Eastern), sustaining the U.S. Department of Commerce (Commerce)'s first remand results of redetermination pertaining to the final scope ruling for the antidumping and countervailing duty orders on certain hardwood plywood products (hardwood plywood) from the People's Republic of China (China). In the underlying ruling, Commerce determined that hardwood plywood exported into the United States by Vietnam Finewood Company Limited (Finewood) that was produced using two-ply panels imported into Vietnam from China was included in the scope of the orders. Commerce is notifying the public that the CIT's final judgment is not in harmony with Commerce's final scope ruling on Finewood's two-ply panels from China and is amending its final scope ruling.

DATES:

Applicable September 1, 2023.

FOR FURTHER INFORMATION CONTACT:

Kabir Archuletta, AD/CVD Operations, Office V, Enforcement and Compliance, International Trade Administration, U.S. Department of Commerce, 1401 Constitution Avenue NW, Washington, DC 20230; telephone: [phone].

SUPPLEMENTARY INFORMATION:

Background

In response to a U.S. Customs and Border Protection (CBP) covered merchandise referral,^[1] on January 21, 2022, Commerce issued its Final Scope Ruling addressing Finewood's two-ply panels imported from China and whether they are covered by the antidumping and countervailing duty orders on hardwood plywood from China.^[2] Commerce found that the plain language of the scope of the Orders was ambiguous with respect to the definition of “certain veneered panels,” and, thus, Commerce turned to the sources in 19 CFR 351.225(k)(1) and found those sources indicated that hardwood plywood exported to the United States by Finewood that was produced using two-ply panels imported into Vietnam from China were covered by the scope of the Orders.^[3]

Finewood, Far East American, Inc., Liberty Woods International, Inc., and Consolidated Plaintiff InterGlobal Forest, LLC, appealed Commerce's Final Scope Ruling. On April 20, 2023, the CIT remanded the Final Scope Ruling to Commerce, holding that the scope language, when read together with the 19 CFR 351.225(k)(1) sources, unambiguously establishes that the Orders do not include Chinese two-ply panels.^[4] Therefore, the CIT remanded Commerce's determination to Commerce with the instruction that Commerce issue a scope ruling concerning Finewood's two-ply panels that is consistent with the unambiguous meaning of the Orders.^[5]

In its final remand redetermination, issued in June 2023, Commerce adopted the CIT's interpretation of the scope of the Orders and determined that hardwood plywood exported to the United States by Finewood that was produced using two-ply panels imported into Vietnam from China is not subject to the scope of the Orders.^[6] The CIT sustained Commerce's final redetermination.^[7]

Timken Notice

In its decision in Timken,^[8] as clarified by Diamond Sawblades,^[9] the Court of Appeals for the Federal Circuit held that, pursuant to sections 516A(c) and (e) of the Tariff Act of 1930, as amended (the Act), Commerce must publish a notice of court decision that is not “in harmony” with a Commerce determination and must suspend liquidation of entries pending a “conclusive” court decision. The CIT's August 22, 2023, judgment constitutes a final decision of the CIT that is not in harmony with Commerce's Final Scope Ruling. Thus, this notice is published in fulfillment of the publication requirements of Timken.

Amended Final Scope Ruling

Because there is now a final court judgment, Commerce is amending its Final Scope Ruling to find that hardwood plywood exported to the United States by Finewood that was produced using two-ply panels imported into Vietnam from China is not subject to the scope of the Orders.

Liquidation of Suspended Entries

Commerce will instruct CBP that, pending any appeals, the cash deposit rate will be zero percent for merchandise subject to the scope ruling. In the event that the CIT's final judgment is not appealed or is upheld on appeal, Commerce will notify CBP of our amended scope ruling in response to its covered merchandise referral and will instruct CBP to liquidate any unliquidated entries of hardwood plywood exported to the United States by Finewood that was produced using two-ply panels imported into Vietnam from China without regard to antidumping and countervailing duties and to lift suspension of liquidation of such entries.

Notification to Interested Parties

This notice is issued and published in accordance with sections 516A(c) and (e) and 777(i)(1) of the Act.

Dated: August 29, 2023.

Lisa W. Wang,

Assistant Secretary for Enforcement and Compliance.

Footnotes

1.   See Certain Hardwood Plywood from the People's Republic of China: Notice of Covered Merchandise Referral and Initiation of Scope Inquiry, 85 FR 3024 (January 17, 2020).

2.   See Memorandum, “Antidumping Duty and Countervailing Duty Orders on Certain Hardwood Plywood Products from the People's Republic of China, Enforcement and Protect Act (EAPA) Investigation No. 7252: Final Scope Ruling,” dated January 21, 2022 (Final Scope Ruling); see also Certain Hardwood Plywood Products from the People's Republic of China: Amended Final Determination of Sales at Less Than Fair Value, and Antidumping Duty Order,83 FR 504 (January 4, 2018); and Certain Hardwood Plywood Products from the People's Republic of China: Countervailing Duty Order,83 FR 513 (January 4, 2018) (collectively, the Orders).

3.   See Final Scope Ruling at 10–20.

4.   See Vietnam Finewood Co. v. United States, 633 F. Supp. 3d 1243, 1255 (CIT 2023).

5.   Id., 633 F. Supp. 3d at 1265.

6.   See Final Results of Redetermination Pursuant to Court Remand, Vietnam Finewood Company Limited, et al., v. United States, Consol. Court No. 22–00049, Slip-Op. 23–58, dated June 16, 2023 ( Final Results) at 5.

7.   See Far East American, Inc. et al. v. United States, Consol. Court No. 22–00049, Slip Op. 23–122 (CIT August 22, 2023).

8.   See Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990) ( Timken).

9.   See Diamond Sawblades Manufacturers Coalition v. United States, 626 F.3d 1374 (Fed. Cir. 2010) ( Diamond Sawblades).