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Commerce Misunderstood Questionnaire Replies, Ignored Corrections, Plywood Exporters Say

A number of consolidated plaintiffs moved for summary judgment April 1 on a second issue in a case opposing a scope inquiry and affirmative circumvention finding regarding the antidumping and countervailing duty orders on hardwood plywood from China (Shelter Forest International Acquisition v. U.S., CIT Consol. # 23-00144).

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Twenty Vietnamese plywood exporters improperly received adverse facts available rates due to “minor, explainable, or unrelated discrepancies in their quantity and value initial and supplemental questionnaire responses,” consolidated plaintiffs Cabinetworks Group, ACPI Wood Products, Cabinetworks Group Middlefield, Cabinetworks Group Michigan, Boise Cascade Building Materials Distribution and USPLY said in their brief.

They said their brief specifically concerns the exporters Innovgreen, Hai Hien, Camlam, Govina and Groll Ply. That AFA determination meant that those companies couldn’t certify their products weren't covered under the AD/CVD order on Chinese plywood, they said.

The discrepancies Commerce claimed to have found in those exporters’ responses were actually just corrections, they said, and corrections are “not evidence of noncooperation or withholding of information” but instead “evidence of a company cooperating to the best of its ability.”

They also said that those exporters were “at no point in this proceeding” notified of any perceived deficiencies in their questionnaire responses. The department itself has said that the exporters submitted all of their responses on time, and it never claimed that the exporters had failed to submit information in the requested “form and manner,” meaning that the administrative record doesn’t support assigning them AFA, they said.

Innovgreen received AFA because Commerce alleged discrepancies in its reported species of face and back veneers and because “Innovgreen incorrectly reported that the company did not import any inputs from China for core veneers because the physical characteristics reported on Vietnamese customs declarations indicate that its veneer imports are of a thickness consistent with that typical of the thickness of core veneers.”

However, the exporter corrected the reported species of face and back veneers in its second supplemental quantity and value questionnaire, the consolidated plaintiffs said.

The department’s attempt to apply AFA to Innovgreen based on the “reported thickness of veneers,” meanwhile, failed because Commerce used another company’s information reported in a separate proceeding “without any support or discussion” as to how the other company’s data was comparable to Innovgreen’s, they said. It also “cherry-picked” International Trade Commision data to reach its conclusion, they said.

They said that the department never informed Innovgreen of any perceived deficiencies, to give Innovgreen the chance to respond, despite having more than a year to do so.

“Commerce cannot be allowed to act with a ‘gotcha’ policy,” they said.

Meanwhile, Hai Hen, the consolidated plaintiffs said, received AFA because Commerce found it had failed to report the existence of a Chinese affiliate, but the exporter had no such affiliate -- only a shareholder that had previously worked for a Chinese producer, they said. They said the department had misunderstood “one sentence” in one of Hai Hien’s questionnaires.

Again, Commerce did not alert Hai Hen that there were any alleged issues, they said, arguing that the department “cannot require responding parties to be ‘mind-readers.’”

Camlam was assigned AFA because, during its verification, it presented minor, nonmaterial corrections to the department, the consolidated plaintiffs said. But Commerce refused to listen to its explanations or update the record with the new, accurate information even though the department “routinely considers minor corrections as part of the verification process,” they said.

Govina was given AFA because it stated in its initial quantity and value questionnaire that it had not sourced any plywood input from Vietnamese resellers, then corrected that statement in its second questionnaire, they said. They said Govina did so “due to language issues and misunderstandings regarding Commerce’s request for information,” but that Commerce wrongly determined that the correction was actually a discrepancy.

Govina only learned about the issue when the review’s petitioner provided comments, and it asked Commerce to provide further information to clarify, they said.

“Petitioner’s comments are no replacement for Commerce’s notice requirements,” they said.

Finally, they said that Groll Ply got AFA because the department mistakenly held that Groll Ply had initially not reported its affiliation with a Chinese company, even though it had maintained that affiliation “all along.” The exporter did make a smaller factual mistake, but corrected it, they said. And, once again, they said, the department didn't alert the exporter to that or a similar issue.

The consolidated plaintiffs added their Rule 56.2 motion to a pile that has been growing since February. Court of International Trade Judge Mark Barnett on Nov. 29 ordered attorneys for the case’s more than 31 plaintiffs and consolidated plaintiffs to give him two separate motions for judgment: one concerning claims about Commerce’s procedures in its scope and circumvention inquiries (see 2402020054), the other concerning “legal and factual” challenges to application of AFA to certain exporters.