Commerce Properly Found That Plywood Didn't Circumvent AD/CVD Orders, Exporter Tells CAFC

The U.S. Court of Appeals for the Federal Circuit should uphold the Commerce Department's finding that Shelter Forest International Acquisition's hardwood plywood exports didn't circumvent the antidumping and countervailing duty orders on hardwood plywood from China, Shelter Forest and others said in a response brief. Shelter Forest argued that the appellate court should uphold the Court of International Trade's ruling that Shelter Forest's plywood wasn't later-developed merchandise and the company wasn't guilty of evasion (Shelter Forest International Acquisition Inc. v. U.S., Fed. Cir. #21-2281).

The case concerns an anti-circumvention inquiry on hardwood plywood that (1) had face and back veneers of radiata or agathis pine, (2) had a Toxic Substances Control Act or California Air Resources Board label certifying compliance with TSCA/CARB requirements, and (3) was made with a resin, the majority of which is composed of urea-formaldehyde, polyvinyl acetate or soy (see 2105110035). Commerce initially ruled that plywood made by Shelter Forest before the orders were issued was made with glue that wasn't primarily made with urea-formaldehyde, rejecting a letter from the exporter that contained evidence to the contrary and laying the groundwork for a finding that the plywood made with urea-formaldehyde glue was later-developed merchandise.

In its initial remand, CIT ordered Commerce to reconsider the letter, after which Commerce found that Shelter Forest did sell goods that met the characteristics of goods subject to the inquiry prior to the ADD/CVD orders, resulting in a finding of no ADD/CVD circumvention. This contention was upheld by CIT (see 2107210028). The Coalition for Fair Trade in Hardwood Plywood then took the case to the Federal Circuit.

Replying to the coalition's opening remarks, Shelter Forest noted that the defendant-appellant found no legal flaw with Commerce's decision or its "analytic approach." In place of such an argument, the coalition "effectively ask[s] this Court to second guess Commere's procedures and reweigh the evidence before Commerce," the plaintiff-appellees said. "This Court has consistently found that it is without the authority to do that."

Shelter Forest characterized the coalition's brief as consisting of two arguments. The defendant-intervenor said that the factual information over the chemical composition of Shelter Forest's glue wasn't properly on the record and thus resulted in a flawed remand, and that the remand is unsupported by substantial evidence. On this first point, Shelter Forest said that the coalition errantly focuses its argument against Commerce's use of certain factual information during the original administrative proceeding with the remand proceeding.

"Defendant-Appellant is wrong to argue that this Court is able to look at the original administrative proceeding and the Trade Court’s decisions regarding that determination in isolation," the brief said. "... Commerce’s decision to affirmatively solicit information in the context of the remand redetermination demonstrates that the information upon which Commerce relied in making its remand redetermination is properly on the record and therefore this Court can only excise it from the evidentiary after a conclusion that Commerce abused its discretion in soliciting that information during the remand proceeding. However, even Defendant-Appellant has not made this argument."

As to the substantial element of the remand, the coalition argues against "alleged gaps in Commerce's consideration of the record," Shelter Forest said. The plaintiff-appellees characterized this as a request for the Federal Circuit to "reweigh the evidence." To this, Shelter Forest said that there is "little doubt that Commerce considered all of the evidence before it on a point by point basis."