Exporters Decry Commerce's Rejection of New Information in Anti-Circ Case on Vietnam Plywood

Exporter Shelter Forest International Acquisition filed a reply brief at the Court of International Trade on Oct. 15, arguing that the U.S. and petitioner Coalition for Fair Trade in Hardwood Plywood failed to justify the Commerce Department's rejection of the company's new factual information in a circumvention proceeding on Vietnamese hardwood plywood. Shelter Forest said both the government and the petitioner didn't address "important past judicial precedent" (Shelter Forest International Acquisition v. United States, CIT Consol. # 23-00144)

The exporter said both the U.S. and the petitioner also failed to address CIT's three-part test for analyzing whether Commerce's refusal to accept the information constituted an abuse of discretion, saying that the parties "believe if they ignore three part test, this Court will do so as well."

The first step sees the court review whether the additional information is important or necessary for Commerce to render an accurate determination, motivated by the remedial and not punitive purpose of antidumping duty law. Here, Shelter Forest's information "went to the very key issue of the investigation: whether Lechenwood exported to the U.S. hardwood plywood containing Chinese cores circumventing the AD order," the brief said. The company's information "unequivocally" shows that Lechenwood's plywood had Vietnamese-made cores, and no party "seriously contests this important fact," the brief said.

Next, the court weighs the burden imposed on the agency. No burden could possibly be imposed by information provided over 329 days before the final determination was issued, Shelter Forest said.

Lastly, the court looks at whether the submitter had been "diligent." Here, Shelter Forest said it was diligent, "given that Shelter Forest compiled and submitted the supporting documentation within three weeks after it learned -- for the first time -- that Commerce believed that data submitted by another party different from Lechenwood (Government of Vietnam) was deficient."

The U.S. and the petitioner don't say when Shelter Forest should have offered its supporting information, but just say the company should have been on notice that deficiencies in its submission could have occurred. The exporter said there's nothing in Commerce's questionnaires that would "lead a reasonable person to believe that Commerce had doubts as to the factual certifications made by Lechenwood that none of its US exports contained Chinese cores," the brief said.

Two other groups of plaintiffs also filed reply briefs in the action, contesting separate denials by Commerce of factual information submitted in the circumvention proceeding. In all, the agency used adverse facts available on 20 exporters after finding they provided inconsistent or conflicting information on their products and sales processes (see 2409230054).

Companies led by Concannon Lumber Co. filed a brief arguing that Commerce abused its discretion in rejecting information from exporters Win Faith, Hai Hen, Her Hui and Lechenwood. Concannon said Commerce violated its statutory obligation to inform respondents of the nature of the deficiency in its response and provide the party with a chance to remedy or explain the deficiency.

For instance, in its preliminary results, Commerce said Win Faith was allegedly affiliated with a Chinese plywood maker based on information in a sales contract submitted by the company. The agency's questionnaire failed to address this contract "in any fashion," the brief said. "Instead, Commerce’s first and second supplemental questionnaires contained only generic questions that Commerce issued to all respondents.”

Concannon said regarding Commerce's defense of its alleged failure, which centered on the fact that it issued supplemental questionnaires without specific mentions of the companies' deficiencies, that a "questionnaire that fails to describe an alleged deficiency is the same as no questionnaire at all.”

A third brief was submitted in the case from plaintiffs led by Cabinetworks Group, claiming that the failure to allow new factual information in the proceeding "deprived interested parties of due process."