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Plaintiffs in Vietnamese Plywood Case Defend Multiple Exporters Against Circumvention Finding

Another plaintiff group in a large, branching Vietnamese plywood circumvention investigation case raised exporter-specific arguments Jan. 2 against the Commerce Department’s adverse facts available-based circumvention finding for 20 exporters (Shelter Forest International Acquisition v. United States, CIT Consol. # 23-00144).

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The department applied AFA to each -- in an investigation lacking mandatory respondents -- because it found each of the 20 exporters provided “inconsistent or conflicting information” regarding their products and sales processes (see 2409230054). In turn, plaintiffs took aim at the investigation process, saying Commerce never notified them of the individual “minor discrepancies” in their questionnaire responses. The department only issued a single, general supplemental questionnaire to all respondents that was insufficient notice for their particular errors, they claimed.

In their Jan. 2 brief, consolidated plaintiffs led by American Woodmark Corporation said Commerce hadn’t justified its application of AFA for the exporters Eagle Industries, Golden Bridge, Lechenwood Viet Nam, Arrow Forest, Her Hui Wood, Long Luu Plywood, TEKCOM and Vietnam Zhongjia Wood.

Like previous filers, American Woodmark said Commerce was statutorily required to provide individual notices of deficiencies to each exporter (see 2501020052). It also said that Commerce incorrectly relied on the Vietnamese government’s import data to ding exporters for incongruities in their second supplemental questionnaire responses.

It said that “[r]espondents are not mind-readers and are not required to guess how Commerce intended to use the voluminous GOV Import Data.” And it pointed out that the department was still waiting on the answer to another supplemental questionnaire it had issued the Vietnamese government “to revise the import data previously submitted” when it received those second supplemental questionnaire responses.

The plaintiff also pushed back on Commerce’s decision to extend the investigation from one to three years for lack of time and resources. Instead of attempting to individually review every respondent, the department “should have reviewed the 51 short initial Q&V QRs in the 5 months -- from October 1, 2021 when it received all of them, to February 22, 2021 ... when it issued the 1st Supp. Q&V -- and gained a decent level of familiarity with all of them,” it said.

And American Woodmark also stood up for a number of specific exporters.

Eagle’s only discrepancy, it said, reasonably misunderstood the term “plywood inputs” under a question in its first questionnaire asking if it had sourced plywood inputs from China. It said the exporter read the term “to include only individual core veneers, veneered panels, or veneered core platforms … that are the center of this investigation.” So it wasn’t acting inconsistently when it disclosed affiliation with a Chinese exporter of face/back veneers in its second questionnaire, the plaintiff said.

The same interpretation issue appeared in the questionnaire responses returned by Golden Bridge, an exporter from Singapore, it said, although Golden Bridge continued to maintain it had never sourced any plywood or plywood inputs from affiliated face/back veneer producers from China. It also showed up in Long Luu’s investigation.

Meanwhile, Lechenwood, it said, “acknowledges that it made certain reporting mistakes in its questionnaire responses.” But these “either did not create a gap on the record or the mistakes occurred for the first time in Lechenwood’s second supplemental questionnaire response,” obligating Commerce to issue another deficiency questionnaire, it claimed. The mistakes were reasonable, and the exporter’s subsequent clarification of them wasn’t a “post hoc explanation,” it said.

“Commerce erred because a respondent’s explanation of a reporting error due to a misunderstanding of the questions asked by Commerce is necessarily post hoc, otherwise the respondent would not have made the error,” it said.

Arrow Forest only failed to provide certain information, as claimed by Commerce, requested of it in its second supplemental Q&V questionnaire, American Woodmark said; this, too, meant Commerce was required to issue a deficiency questionnaire.

Long Luu, as well as experiencing an alleged error in interpretation, misunderstood a request for sample purchase documentation, such as a bill of lading, and instead gave Commerce a “commercial invoice it received from its local reseller supplier.” It was also hit for not reporting post-period of review purchases of imported face/back veneers, even though it “was never asked to report information about” that purchase “at any time,” the plaintiff claimed.

And Her Hui “[i]n its moving brief … demonstrated that Commerce acted contrary to law in each instance cited in support of Commerce’s AFA application,” American Woodmark said (see 2402020054).