US Conceded Commerce Lacked Adequate Info in Circumvention Finding, Plywood Importers Say
A number of consolidated plaintiffs, who referred to themselves as “ST&R,” said Jan. 2 the U.S. “appear[ed] to concede” that the Commerce Department lacked adequate information when it determined multiple Vietnamese plywood exporters had been circumventing an antidumping duty order on hardwood plywood from China (Shelter Forest International Acquisition v. United States, CIT Consol. # 23-00144).
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In the complex two-tranche case brought by a number parties against the Commerce Department’s affirmative circumvention finding (see 2402020054 and 2404020054), the consolidated plaintiffs, led by Cabinetworks Group, said in a response brief that the U.S.’s arguments supporting application of adverse facts available to 20 exporters were “circular and self-contradictory.”
“While Commerce took more than three years to render its final determination in this inquiry, Defendant simultaneously argues that Commerce lacked the resources to comply with the statutory requirements of 19 U.S.C. 1677m(d),” it said.
The department applied AFA because it found the 20 exporters provided “inconsistent or conflicting information” regarding their products and sales processes (see 2409230054). In turn, all the case’s plaintiffs -- which include the exporters and U.S. importers -- took aim at the process by which Commerce undertook the investigation. They argued that Commerce, which reviewed all 20 of the exporters instead of selecting mandatory respondents, never notified them of the individual “minor discrepancies” in their questionnaire responses. The department instead issued all of them a general supplemental questionnaire that was insufficient to put them on notice for their particular errors, they claimed.
The government said Commerce issued the general supplemental because it lacked the time and resources to issue one individually for each respondent.
But “[t]he mere statement that it was too difficult for Commerce to comply with 19 U.S.C. § 1677m(d) does not relieve it of its obligations to do so,” the plaintiffs said in their brief. It said that both the language of the statute and court precedent makes “abundantly clear” that Commerce must notify respondents of perceived deficiencies, and the department failed to do so.
The U.S. was also incorrect in arguing that those perceived deficiencies, on their own, were enough to justify Commerce’s application of AFA even though the department hadn’t made a particular finding that the respondents hadn’t cooperated to the best of their ability, the consolidated plaintiffs said.
They then again focused particularly on the assignment of AFA to exporters Innovgreen, Hai Hein, Camlam, Govina and Groll Ply, the particular subjects of tranche II (see 2404020054).
Regarding Innovgreen and Hai Hein, they said Commerce failed to support findings each was affiliated with a Chinese company. They also said that, in Innovgreen’s case, the department misunderstood the definition of “core veneers” and wrongly focused on the thickness of Innovgreen’s imported veneers instead of their purpose -- which is how core veneers are differentiated from “face” and “back” veneers.
Commerce’s rejection of Camlam’s corrections to the record at verification, meanwhile, was “contrary to Commerce’s obligation to conduct fair and accurate proceedings,” they said. That information would have reconciled Camlam’s financial statements and sales records, making only minor Q&V corrections, they said.
“Commerce routinely considers minor corrections as part of the verification process,” the brief said.
The consolidated plaintiffs also argued that Govina’s records were reliable, despite the department’s claim otherwise. And it said the U.S. “appears to misunderstand the record” regarding Groll Ply’s own statement of affiliation; the exporter initially erred by reporting it wasn’t affiliated with a Chinese input supplier, but it corrected the mistake and provided additional documentation in its second supplemental response. As it had in other instances, however, “Commerce improperly characterized this correction as a contradiction,” the consolidated plaintiffs said.