Commerce Could Have Picked Mandatory Respondent in Vietnam Plywood Inquiry, Exporter Argues

Another plaintiff in a sprawling case regarding an affirmative circumvention finding for Vietnamese hardwood plywood added its own support Oct. 15 to its side’s second motion for judgment. It said that the unusual circumstances that led the Commerce Department to essentially conduct a review of 57 companies without a mandatory respondent were “the result of its own misguided decisions” (Shelter Forest International Acquisition v. U.S., CIT Consol. # 23-00144).

The Commerce Department applied adverse facts available to 20 plywood exporters after finding they had “provided inconsistent or conflicting information” regarding their products and sales processes (see 2409230054), which those exporters are now challenging in the Court of International Trade (see 2402020054 and 2404020054). They claim that the department failed to notify them of the individual “minor discrepancies” in their questionnaire responses before hitting them with AFA.

In its filings, the government explained that Commerce ended up with questionnaire responses from so many exporters because, while it sent initial survey questionnaires to a large number of Vietnamese plywood exporters in search of a mandatory respondent, it ultimately never received a response from a manufacturer that produced plywood under the process it was investigating.

Defending the investigation, the government said that Commerce issued investigation-wide questionnaires “ask[ing] for information three separate times,” and that those questionnaires had been adequate notice to the exporters. The department, it said, therefore had adequate information with which to make a reasonable determination, the U.S. explained.

“The sheer volume of questionnaires issued by Commerce, however, doesn't prove that its investigation was reasonable,” exporter Greatriver Wood argued in its Oct. 15 brief.

The department should have simply sent survey questionnaires to the 10 largest exporters of Vietnamese plywood, then selected mandatory respondents out of them, it said. It argued that “Commerce never explained why it was necessary to select a company that engaged in the production scenarios” the department was seeking.

It also claimed the questionnaires had never been adequate, saying they totaled “a mere six pages of questions even when one combines its quantity and value questionnaire and two supplemental quantity and value questionnaires.”

“It is apparent that Commerce did not even attempt to collect the information required by statute to support an affirmative determination of circumvention," it said.