Shelter Forest International Acquisition, Inc. v. United States

Slip Op. 26-5
UNITED STATES COURT OF INTERNATIONAL TRADE
SHELTER FOREST INTERNATIONAL
ACQUISITION, INC.,
Plaintiff,
and
GREATRIVER WOOD CO., LTD., ET
AL.,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
and
COALITION FOR FAIR TRADE IN
HARDWOOD PLYWOOD,
Defendant-Intervenor.
Before: Mark A. Barnett, Chief Judge
Consol. Court No. 23-00144
PUBLIC VERSION
OPINION AND ORDER
[Remanding the U.S. Department of Commerce’s affirmative finding of circumvention of
the antidumping and countervailing duty orders on certain hardwood plywood products
from the People’s Republic of China.]
Dated: January 28, 2026
William Chandler, Pillsbury Winthrop Shaw Pittman LLP, of Washington, DC, argued for
Plaintiff Shelter Forest International Acquisition, Inc. Also on the brief were Daniel L.
Porter, William C. Sjoberg, and Ana M. Amador.
William Marshall, Sandler Travis & Rosenberg, P.A., of New York, NY, argued for
Consolidated Plaintiffs USPLY LLC, Boise Cascade Building Materials Distribution LLC,
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Cabinetworks Group Inc., ACPI Wood Products LLC, Cabinetworks Group Middlefield,
LLC, and Cabinetworks Group Michigan, LLC.
Bryan P. Cenko, Mowry & Grimson, PLLC, of Washington, DC, argued for Consolidated
Plaintiffs Concannon Lumber Company, Northwest Hardwoods, Inc., Richmond
International Forest Products LLC, Taraca Pacific Inc., UFP International, LLC,
Medallion Forest Products, Hardwoods Specialty Products USLP, Paxton Hardwoods
LLC, and Rugby Holdings LLC. 1 Also on the brief were Jeffrey S. Grimson and Jill A.
Cramer.
Gregory S. Menegaz and Vivien J. Wang, The Inter-Global Trade Law Group PLLC, of
Washington, DC, argued for Consolidated Plaintiffs American Woodmark Corporation,
Del Valle Kahman & Company, Ike Trading Company Limited, Pittsburgh Forest
Products, Panoply Wood Products USA Inc., American Pacific Plywood, Inc., Eagle
Industries Company Limited, Golden Bridge Industries Pte. Ltd., Lechenwood Viet Nam
Company Limited, Arrow Forest International Co., Ltd., Her Hui Wood (Vietnam) Co.,
Long LUU Plywood Production Co., Ltd., TEKCOM Corporation, and Vietnam Zhongjia
Wood Company Limited. Also on the brief were Alexandra H. Salzman and Judith L.
Holdsworth.
Stephen Brophy, Husch Blackwell, LLP, of Washington, DC, for Consolidated Plaintiff
Greatriver Wood, Co., Ltd.
Gregory S. McCue, Steptoe LLP, of Washington DC, for Consolidated Plaintiff Tumac
Lumber Co., Inc.
Sosun Bae, Senior Trial Counsel, and Collin T. Mathias, Trial Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued
for Defendant United States. Also on the brief were Brian M. Boynton, Principal Deputy
Assistant Attorney General, Patricia M. McCarthy, Director, and Tara K. Hogan,
Assistant Director. Of counsel on the brief was Savannah Maxwell, Attorney, Office of
the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of
Commerce, of Washington, DC.
Stephanie M. Bell, Wiley Rein LLP, of Washington DC, argued for Defendant-Intervenor
Coalition for Fair Trade in Hardwood Plywood. Also on the brief were Timothy C.
Brightbill, Tessa V. Capeloto, Maureen E. Thorson, and John Allen Riggins.
1 The court also granted these parties’ motion to intervene as plaintiffs. Order (Aug. 23,
2023), ECF No. 15. Following consolidation, however, they participated as consolidated
plaintiffs, not as plaintiff-intervenors.
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Barnett, Chief Judge: This consolidated case addresses the U.S. Department of
Commerce’s (“Commerce” or “the agency”) affirmative final determination of
circumvention of the antidumping duty (“AD”) and countervailing duty (“CVD”) orders on
certain hardwood plywood products from the People’s Republic of China (“China”). See
Certain Hardwood Plywood Prods. From the People’s Republic of China, 88 Fed. Reg.
46,740 (Dep’t Commerce July 20, 2023) (final scope determination and affirmative final
determination of circumvention of the AD and CVD orders) (“Final Determination”), ECF
No. 21-6, and accompanying Issues and Decision Mem., A-570-051, C-570-052 (July
14, 2023) (“I&D Mem.”), ECF No. 21-7. 2 Circumvention determinations are governed by
section 781 of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677j (2018). 3 In the
Final Determination, Commerce found that imports of certain hardwood plywood
completed in Vietnam using inputs from China under five production scenarios,
discussed in more detail below, are circumventing the AD/CVD orders on certain
hardwood plywood from China. 88 Fed. Reg. at 46,740.
2 The administrative record for the Final Determination is contained in public and
confidential antidumping and countervailing duty records. See Public AD R. (“PR”),
ECF No. 21-1; Confid. AD R. (“CR”), ECF No. 21-2; Public CVD R., ECF No. 21-3;
Confid. CVD R., ECF No. 21-4. Parties filed joint appendices containing record
documents cited in their briefs. Tranche I Confid. J.A. (Part 1), ECF No. 66; Tranche I
Public J.A. (Part 1), ECF No. 67; Tranche I Confid. J.A. (Part 2), ECF No. 82; Tranche I
Public J.A. (Part 2), ECF No. 83; Tranche II Confid. J.A. (Part 1), ECF No. 90; Tranche
II Public J.A. (Part 1), ECF No. 91; Tranche II Confid. J.A. (Part 2), ECF No. 114;
Tranche II Public J.A. (Part 2), ECF No. 115; Suppl. Confid. J.A., ECF No. 123; Suppl.
Public J.A., ECF No. 124. Consistent with the parties, the court cites to the documents
filed on the record of the AD proceeding. The court references the confidential version
of the record documents unless otherwise indicated.
3 Citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, and
all citations to the U.S. Code are to the 2018 edition, unless otherwise specified.
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Multiple interested parties who participated in the circumvention inquiry,
consisting of Vietnamese producers or exporters and U.S. importers, filed a total of 22
actions challenging the Final Determination, which the court consolidated under this
lead case. See Order (Oct. 20, 2023), ECF No. 25. This consolidated case is now
before the court on motions for judgment on the agency record pursuant to U.S. Court
of International Trade Rule 56.2 filed by Plaintiff and Consolidated Plaintiffs. 4 The
United States (“the Government”) and Defendant-Intervenor Coalition for Fair Trade in
Hardwood Plywood (“the Coalition”) defend Commerce’s determination. Given the
number of issues raised, this case proceeded with two rounds of briefing as proposed
by the Parties (referred to as Tranche I and Tranche II). See Scheduling Order (Nov.
29, 2023), ECF No. 30. Tranche I covered procedural and certain evidentiary claims.
See id. at 1–2. Tranche II covered Commerce’s rejection of untimely new factual
information, compliance with 19 U.S.C. § 1677m(d), and use of adverse facts available.
See id. at 2. For the following reasons, the court remands the Final Determination for
reconsideration or further explanation consistent with this opinion.
4 For ease of reference, the court includes a three-part appendix at the conclusion of the
opinion identifying all parties and relevant briefs (including abbreviated citations) in each
round of briefing.
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BACKGROUND
I. 	Statutory Framework
A. Anti-Circumvention 5
The United States may, under certain circumstances, issue orders imposing
duties on goods determined to be subsidized by a foreign government or sold in the
U.S. market at less than fair value. 19 U.S.C. §§ 1671 (CVD), 1673 (AD). To address
circumvention of such orders, Congress has authorized Commerce to include
merchandise imported from a non-subject country within the scope of the orders
pursuant to statutory criteria. Id. § 1677j.
For “[m]erchandise completed or assembled in other foreign countries,” id.
§ 1677j(b), the relevant provisions of the anti-circumvention statute are as follows:
(1) In general
If--
(A) merchandise imported into the United States is of the same class or
kind as any merchandise produced in a foreign country that is the subject
of [an AD or CVD order],
(B) before importation into the United States, such imported merchandise
is completed or assembled in another foreign country from merchandise
which . . . (ii) is produced in the foreign country with respect to which such
order or finding applies,
(C) the process of assembly or completion in the foreign country referred
to in subparagraph (B) is minor or insignificant,
5 “Anti-circumvention” is typically used in reference to the purpose of the statute and
Commerce’s corresponding inquiry; however, the Parties and the court sometimes use
“anti-circumvention” and “circumvention” interchangeably.
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(D) the value of the merchandise produced in the foreign country to which
the antidumping duty order applies is a significant portion of the total value
of the merchandise exported to the United States, and
(E) [Commerce] determines that action is appropriate under this
paragraph to prevent evasion of such order or finding,
[Commerce] . . . may include such imported merchandise within the scope
of such order or finding . . . .
Id. § 1677j(b)(1).
To determine if the process is minor or insignificant, Commerce considers:
(A) the level of investment in the foreign country,
(B) the level of research and development in the foreign country,
(C) the nature of the production process in the foreign country,
(D) the extent of production facilities in the foreign countries, and
(E) whether the value of the processing performed in the foreign country
represents a small proportion of the value of the merchandise imported into
the United States.
Id. § 1677j(b)(2).
To determine whether to include such merchandise in an AD or CVD order
pursuant to paragraph (1), Commerce considers “the pattern of trade, including sourcing
patterns,” affiliations between “the manufacturer or exporter of the merchandise
described in paragraph (1)(B)” and “the person who uses the merchandise described in
paragraph (1)(B) to assemble or complete [the inquiry merchandise] in the foreign
country,” and the existence of increased “imports into the foreign country of the
merchandise described in paragraph (1)(B)” following “the issuance of [an AD or CVD]
order.” Id. § 1677j(b)(3).
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“[T]o the maximum extent practicable,” Commerce should issue its determination
“within 300 days from the date of the initiation of a countervailing duty or antidumping
circumvention inquiry.” Id. § 1677j(f).
B. Adverse Facts Available
During a circumvention inquiry, Commerce solicits information from interested
parties. If an interested party “withholds information that has been requested,” “fails to
provide such information by the deadlines,” “significantly impedes a proceeding,” or
provides information that “cannot be verified,” Commerce “shall, subject to section
1677m(d) . . . use the facts otherwise available in reaching the applicable
determination.” Id. § 1677e(a)(2). Section 1677m(d) governs deficient submissions. If
Commerce determines that a response is deficient, the agency “shall promptly inform
the [submitting party] of the nature of the deficiency and shall, to the extent practicable,
provide that [party] with an opportunity to remedy or explain the deficiency in light of the
time limits established for the completion of investigations or reviews under this
subtitle.” Id. § 1677m(d).
If, however, Commerce determines that “an interested party has failed to
cooperate by not acting to the best of its ability,” the agency “may use an inference that
is adverse to the interest of that party in selecting from among the facts otherwise
available.” Id. § 1677e(b)(1). The use of such inferences is commonly called “AFA” for
“adverse facts available.”
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II. 	Factual Background and Procedural History
A. Initiation and Information Gathering
On January 4, 2018, Commerce issued AD and CVD orders on “hardwood and
decorative plywood, and certain veneered panels” from China. Certain Hardwood
Plywood Prods. From the People’s Republic of China, 83 Fed. Reg. 504 (Dep’t
Commerce Jan. 4, 2018) (am. final determination of sales at less than fair value, and
AD order) (“Plywood AD Order”); Certain Hardwood Plywood Prods. From the People’s
Republic of China, 83 Fed. Reg. 513 (Dep’t Commerce Jan. 4, 2018) (CVD order)
(“Plywood CVD Order”) (together, “the Plywood Orders”). The Plywood Orders define
hardwood and decorative plywood, inter alia, “as a generally flat, multilayered plywood
or other veneered panel, consisting of two or more layers or plies of wood veneers and
a core, with the face and/or back veneer made of non-coniferous wood (hardwood) or
bamboo.” Plywood AD Order, 83 Fed. Reg. at 512; Plywood CVD Order, 83 Fed. Reg.
at 515. “[T]he scope of the Plywood Orders unambiguously covers hardwood plywood
and certain veneered panels that . . . ‘consist[] of two or more layers or plies of wood
veneers and a core,’ i.e., at least three plies.” Viet. Finewood Co. v. United States, 47
CIT __, __, 633 F. Supp. 3d 1243, 1262 (2023). 6
On February 25, 2020, shortly after Commerce initiated the scope inquiry
underlying the Finewood Scope Ruling discussed supra, note 6, the Coalition requested
6 Commerce had previously issued a scope ruling in which the agency concluded that
the Plywood Orders covered two-ply panels, and that such panels imported into
Vietnam from China by Vietnam Finewood Company Limited (“Finewood”) were not
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Commerce to issue a scope ruling that certain additional hardwood plywood products
that are assembled in Vietnam using Chinese inputs are also within the scope of the
Plywood Orders. Request for Scope Ruling/Anti-Circumvention Ruling (Feb. 25, 2020)
(“Ruling Req.”) at 1, CR 5–6, PR 19; see also Certain Hardwood Plywood [Prods.] From
the People’s Republic of China, 85 Fed. Reg. 3,024 (Dep’t Commerce Jan. 17, 2020)
(notice of covered merch. referral and initiation of [Finewood] scope inquiry). In the
alternative, the Coalition requested a country-wide circumvention finding. Ruling Req.
at 2, 31, 50–52. The Coalition focused on two production scenarios in which Chinese
producers or exporters shipped “the main components of hardwood plywood,” i.e., face,
back, and core veneers, from China to Vietnam for assembly into finished hardwood
plywood and exportation to the United States. Id. at 21. 7
Commerce requested clarification of the merchandise potentially subject to these
inquiries. See Coalition’s Resp. to Req. for Clarification (May 12, 2020) (“Coalition’s
May 12, 2020 Resp.”), CR 7, PR 20. Specifically, Commerce requested the Coalition to
substantially transformed in the manufacture of three-ply hardwood plywood. See
Enforcement and Protect Act (EAPA) Investigation No. 7252: Final Scope Ruling (Jan.
21, 2022) (“Finewood Scope Ruling”), CR 397, PR 394. Following the court’s decision
to remand that scope ruling, Commerce issued a revised scope ruling under protest.
See Far East Am., Inc. v. United States, 47 CIT __, __, 654 F. Supp. 3d 1308, 1310
(2023). The court sustained Commerce’s determination. Id. at 1311. No party
appealed, and the court’s decision became final. Far East Am., Inc. v. United States, 47
CIT __, __, 673 F. Supp. 3d 1333, 1337 (2023). Accordingly, it is settled law that the
scope of the Plywood Orders requires a minimum of three plies.
7 The two production scenarios the Coalition sought to include involved the production
in China of face veneers, back veneers, and either an assembled core or individual core
veneers; the shipment of these components to Vietnam for assembly into finished
hardwood plywood; and exportation of the finished hardwood plywood to the United
States. Ruling Req. at 21.
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consider the inclusion of three additional scenarios based on Commerce’s view that
“there may be scenarios where plywood components produced in China are combined
with plywood components produced in Vietnam or third countries.” Id. at 2; see also id.
at 2–6 (discussing the additional scenarios). 8 The Coalition responded that Commerce
should find the merchandise produced under each additional production scenario to be
in-scope but made no specific mention of relying on an anti-circumvention analysis to
reach any determination for the three production scenarios. See id. at 2–6. 9
8 The three scenarios raised by Commerce consisted of (1) fully assembled veneer core
platforms manufactured in China and combined with face and/or back veneers
produced in Vietnam or third countries; (2) multi-ply panels of glued core veneers
manufactured in China that are combined in Vietnam to produce veneer core platforms
and combined with a face and/or back veneer produced in China, Vietnam, or a third
country; and (3) core veneers manufactured in China and processed into a veneer core
platform in Vietnam and combined with a face and/or back veneer produced in Vietnam
or other third country. Coalition’s May 12, 2020 Resp. at 2–6. Commerce proposed the
inclusion of a fourth scenario involving “core veneers fully produced in Vietnam or a
third country [that are] assembled into a veneer core platform in Vietnam and combined
with a face and back veneer produced in China”; however, the Coalition stated it was
not requesting Commerce to include such a scenario in its analysis. Id. at 6.
9 For two of Commerce’s additional scenarios, the Coalition premised its response on its
view that the scope of the Plywood Orders covered two-ply products. See Coalition’s
May 12, 2020 Resp. at 2, 4. For one of Commerce’s additional scenarios, namely, the
one involving “[c]ore veneers that are produced in China, further processed into a
veneer core platform in Vietnam, and combined with a face and/or back veneer
produced in Vietnam or other third country,” the Coalition stated that such merchandise
“should be found to be in scope” based on the relative value of the core veneers and the
absence of a substantial transformation of the individual core veneers. Id. at 5–6. It is
unclear whether the Coalition’s reference to relative value implies support for an anti-
circumvention analysis for this scenario rather than a scope analysis (because single
veneers were never considered by the agency to be in-scope), or whether the
Coalition’s reference to substantial transformation indicates sole reliance on a scope
analysis for this scenario.
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In June 2020, Commerce initiated scope and circumvention inquiries. Certain
Hardwood Plywood Prods. From the People’s Republic of China, 85 Fed. Reg. 36,530
(Dep’t Commerce June 17, 2020) (initiation of anti-circumvention inquiries and scope
inquiries on the AD and CVD orders; Vietnam assembly) (“Initiation Notice”). With
respect to circumvention, Commerce initiated the inquiry on a country-wide basis. Id. at
36,533. 10 Commerce included five production scenarios in the inquiries, the two
proposed by the Coalition and the three suggested by Commerce and described supra,
note 8, adding in reference to those three, “should such production scenarios exist.” Id.
at 36,531 n.12 (emphasis added). The hardwood plywood produced according to the
five production scenarios is referred to as “inquiry merchandise.” Id. at 36,531; see also
Clarification of Merchandise Subject to Anti-Circumvention and Scope Inquiries (July 9,
2020) (“Initiation Clarification Mem.”), PR 21.
Commerce proceeded to request information for these inquiries. After identifying
potential respondents, on September 10, 2020, Commerce issued quantity and value
(“Q&V”) questionnaires to 57 producers and exporters of hardwood plywood in Vietnam.
See Q&V Questionnaire for Vietnamese Producers and Exporters of Certain Hardwood
Plywood Prods. (Sept. 10, 2020) (“Q&V Questionnaire”), Attach. I, PR 62 (list of
companies). Fifty-one companies responded to the questionnaire, including two
unsolicited responses. See Prelim. Decision Mem. (July 22, 2022) (“Prelim. Mem.”) at
10 Initiation on a country-wide basis means that Commerce will consider whether a
“finding applicable to all exports might be warranted.” Initiation Notice, 85 Fed. Reg. at
36,533 n.38.
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3, PR 409. Eight companies that Commerce contacted did not respond. Id. None of
the responding companies reported producing inquiry merchandise. Id.
On February 22, 2021, Commerce issued supplemental questionnaires to the 51
responding companies and to the Government of Vietnam (“GOV”). Q&V Suppl.
Questionnaire for Vietnamese Producers and Exporters of Certain Hardwood Plywood
Prods. (Feb. 22, 2021) (“1st Suppl. Questionnaire”), Attach. I, PR 154 (list of
companies); [GOV] Scope Ruling/Anticircumvention Ruling Inquiry (Feb. 22, 2021),
Attach., PR 153. Forty-six of those companies and the GOV timely responded. See
Prelim. Mem. at 3.
On June 15, 2021, Commerce issued a second supplemental questionnaire to
the 46 companies that responded to the first supplemental questionnaire. Q&V Second
Suppl. Questionnaire for Vietnamese Producers and Exporters of Certain Hardwood
Plywood Prods. (June 15, 2021) (“2nd Suppl. Questionnaire”), Attach. I, PR 257 (list of
companies); see also Clarification of Second Q&V Suppl. Questionnaire Resp. (June
25, 2021) (“2nd Suppl. Clarification Mem.”), PR 272 (clarifying certain requests for
information in the Second Supplemental Questionnaire). Forty-five companies timely
responded. Prelim. Mem. at 3–4. The GOV also timely responded to a supplemental
questionnaire. Id. at 4.
Commerce issued 11 company-specific questionnaires. See, e.g., I&D Mem. at
133 n.690. The recipient companies responded. See id. In response to the Q&V and
later questionnaires, all respondents reported that they did not produce inquiry
merchandise. Prelim. Mem. at 4. Commerce explained that because all respondents
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reported that they did not produce inquiry merchandise, the agency declined to select
mandatory respondents. Id.
Commerce placed on the record documents obtained during an evasion
investigation conducted by U.S. Customs and Border Protection (“Customs” or “CBP”)
pursuant to 19 U.S.C. § 1517 (the Enforce and Protect Act or “EAPA”) that involved
Finewood. See Placing Docs. Relevant to this Proceeding on the R. (Feb. 18, 2022)
(“Finewood Mem.”), CR 396, PR 393. Those documents included the Finewood Scope
Ruling. 11
B. Preliminary Determination
In July 2022, Commerce issued an affirmative preliminary scope and
circumvention determination. Certain Hardwood Plywood Prods. From the People’s
Republic of China, 87 Fed. Reg. 45,753 (Dep’t Commerce July 29, 2022) (prelim. scope
determination and affirmative prelim. determination of circumvention of the AD and CVD
orders) (“Prelim. Determination”). Based on Commerce’s Finewood Scope Ruling,
Commerce determined that the output of three production scenarios is in-scope
merchandise. Prelim. Mem. at 15. Commerce further determined that two additional
11 Commerce issued the Finewood Scope Ruling in connection with a covered
merchandise referral from CBP pursuant to 19 U.S.C. § 1517(b)(4)(A). That provision
allows CBP to refer an issue to Commerce for a scope ruling if CBP is “unable to
determine whether the merchandise at issue is covered merchandise,” 19 U.S.C.
§ 1517(b)(4)(A), i.e., merchandise that is subject to an AD or CVD order, id.
§ 1517(a)(3).
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production scenarios involved merchandise that circumvented the Plywood Orders. Id.
at 16–26.
The three production scenarios Commerce preliminarily found to involve in-scope
merchandise were: (1) “[f]ace veneer, back veneer, and assembled core components
(e.g., veneer core platforms) manufactured in China and assembled in Vietnam”; (2)
“[f]ully assembled veneer core platforms manufactured in China that are combined in
Vietnam with face and/or back veneers produced in Vietnam or third countries”; and (3)
“[m]ulti-ply panels of glued core veneers manufactured in China that are combined in
Vietnam to produce veneer core platforms and combined with either a face and/or back
veneer produced in China, Vietnam, or a third country.” Id. at 15. 12
The two production scenarios Commerce preliminarily concluded did not involve
in-scope (i.e., two-ply) merchandise but met the criteria for circumvention were: (1)
“[f]ace veneer, back veneer, and individual core veneers produced in China and
assembled into hardwood plywood in Vietnam”; and (2) “[i]ndividual core veneers
manufactured in China and processed into a veneer core platform in Vietnam and
combined with a face and/or back veneer produced in Vietnam or other third country.”
Id. at 16. 13
12 The first production scenario Commerce preliminarily found to be in-scope was
proposed by the Coalition. The second and third production scenarios Commerce
preliminarily found to be in-scope were based on Commerce’s further inquiry. See
Coalition’s May 12, 2020 Resp.
13 The first production scenario in which Commerce preliminarily found circumvention
was based on the agency’s further inquiry while the second production scenario was
proposed by the Coalition. See id.
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At the time of the Preliminary Determination, Commerce considered that two
plies were sufficient to be considered in-scope merchandise. Accordingly, Commerce’s
three in-scope production scenarios involved Chinese-origin veneers consisting of at
least two plies that were not substantially transformed during assembly in Vietnam. See
id. at 14–15. Commerce’s two circumventing scenarios involved single-ply veneers of
Chinese origin, insufficient for Commerce to consider such merchandise to be in-scope
merchandise. See id. at 16–17, 26.
Most relevant here, with respect to circumvention, Commerce preliminarily
determined to apply AFA to non-responding companies and to the companies that
responded to Commerce’s multiple questionnaires but as to which Commerce
determined there were “significant discrepancies, inconsistencies, or misleading
information.” Id. at 10–11; see also id. at 12 (listing five bases for AFA). Commerce
provided additional explanation regarding the failings it attributed to each of the AFA
companies in a separate confidential memorandum. Appl. of [AFA] for the Prelim.
Determination (July 22, 2022) (“Prelim. AFA Mem.”), CR 412, PR 410. “As AFA,”
Commerce “preliminarily [found] that [the companies subject to AFA] produced and/or
exported hardwood plywood under all of the five production scenarios that are subject to
these inquiries.” Prelim. Mem. at 12–14. Commerce thus used its AFA finding to
determine “that Vietnamese companies are completing hardwood plywood in Vietnam
under the aforementioned production scenarios,” id. at 18, thereby meeting the second
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statutory criterion pursuant to 19 U.S.C. § 1677j(b)(1)(B) (completion or assembly in
another foreign country). 14
Commerce also relied, in part, on AFA to determine that the “process of
assembly and completion was minor or insignificant.” Id. at 20. In addition to the use of
adverse inferences, however, Commerce cited record evidence provided by the
Coalition and evidence from the Finewood scope proceeding. Id. at 19–20. 15
Commerce further stated that because “the core veneers . . . make up the vast majority
of the value of the wood materials,” any differences between the two circumventing
scenarios regarding sourcing of face or back veneers did not alter the analysis. Id. at
20 & n.83. Commerce primarily cited evidence provided by the Coalition, including a
declaration and data regarding patterns of trade, to support the agency’s finding that the
respondents were assembling or completing inquiry merchandise in Vietnam. See id. at
19–20. Commerce also cited the Coalition’s evidence to support the agency’s
conclusion that the additional statutory criteria all supported an affirmative
circumvention finding. See id. at 20–26 (discussing the level of investment, level of
research and development, nature of production processes, extent of production
facilities, and relative value of the processing performed, in Vietnam; the relative value
14 There is no dispute that the hardwood plywood exported from Vietnam to the United
States is of the same class or kind as the subject merchandise exported from China for
purposes of 19 U.S.C. § 1677j(b)(1)(A).
15 For its minor or insignificant analysis, Commerce also cited generally to the Finewood
Memorandum, Prelim. Mem. at 19 n.81, and a production cost memorandum
Commerce prepared concurrent with the preliminary memorandum using data from the
Finewood scope proceeding, see, e.g., id. at 20 n.82; Prod. Costs Analysis and Data for
the Prelim. Determination (July 22, 2022), CR 413, PR 411.
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of the merchandise produced in China; and the “additional factors” involving patterns of
trade, affiliations, and increased imports).
Commerce announced a certification program to administer the country-wide
preliminary finding. Id. at 27–28. The program would allow certain companies to certify
on an entry-specific basis that imports of hardwood plywood from Vietnam into the
United States did not contain inquiry merchandise. Id. at 27. However, Commerce
preliminarily determined that the 36 companies for which Commerce used AFA were not
eligible to participate in the certification program. Id. Commerce stated that it would
“reconsider the eligibility” of those companies “to participate in the certification process if
they demonstrate in a future segment of the [AD/CVD] proceedings (e.g., a changed
circumstances review or administrative review) that the hardwood plywood they produce
in and/or export from Vietnam was not produced under any of the production scenarios
subject to these inquiries.” Id. at 27–28.
C. Final Determination
On July 20, 2023, Commerce issued its affirmative Final Determination. 88 Fed.
Reg. at 46,740. While the determination covered the five production scenarios, I&D
Mem. at 10–11, Commerce stated summarily, “the entire premise of these inquiries is
whether Vietnamese companies imported Chinese core veneers, or face/back veneers
plus core veneers, to use in the production of their hardwood plywood,” id. at 139.
Commerce also stated that it declined to accept new factual information submitted after
the Preliminary Determination for use in the Final Determination. Id. at 5.
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In summarizing changes from the Preliminary Determination, Commerce
explained that it first had to reconsider its earlier finding that three production scenarios
involved in-scope merchandise because of the agency’s reversal of the Finewood
Scope Ruling. Id. at 10–11. That reversal came in a remand determination to comply
with the unambiguous scope language requiring a minimum of three plies. See Far
East Am., 654 F. Supp. 3d at 1310. For this Final Determination, Commerce found that
merchandise produced under the first three scenarios “enter[s] Vietnam further
downstream in the production process” as compared to the scenarios that Commerce
“preliminarily determined [were] circumventing the [Plywood Orders].” I&D Mem. at 11.
Thus, Commerce found, “the circumvention analysis outlined in the Preliminary
Determination . . . supports an affirmative circumvention determination for these three
scenarios.” Id.
In addressing the statutory criteria, Commerce explained that the evidence
supporting its earlier finding “that production scenarios four and five involve the
completion of merchandise using inputs produced in China” also supported the “finding
that hardwood plywood produced under scenarios one, two, and three exported to the
United States from Vietnam was assembled and completed in Vietnam using Chinese-
origin hardwood plywood inputs” and was thus circumventing the Plywood Orders. Id.
at 12 & n.28 (citing Prelim. Mem. at 18). Commerce also found that the petitioner-
provided evidence, in conjunction with Commerce’s use of AFA, supported a finding that
production under all five scenarios is minor and insignificant. Id. at 12–14, 30–45.
Commerce made no changes to its preliminary analysis for the “additional factors”
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considered pursuant to 19 U.S.C. § 1677j(b)(3), namely, patterns of trade, affiliation,
and import levels. Id. at 14, 45–53.
Commerce made certain changes with respect to the list of companies subject to
AFA. Id. at 14, 75–76 (removing two companies from the list of AFA companies
ineligible to certify their exports). In response to claims that Commerce failed to comply
with 19 U.S.C. § 1677m(d) before resorting to AFA, Commerce claimed that
“respondents were repeatedly notified of the necessary information that Commerce
requested and they were also provided with multiple opportunities to provide that
information.” Id. at 123. Commerce considered the first and second supplemental
questionnaires issued to all responding companies and the company-specific
questionnaires issued to a subset of those respondents to constitute notice of any
deficiencies and stated that it was not practicable to issue additional questionnaires. Id.
at 123–33. Commerce separately explained its determination to apply AFA to two
companies that failed verification, id. at 147–50, 158–65, and to apply AFA to two
companies that responded to the Q&V Questionnaire but failed to respond to the First
Supplemental Questionnaire (and thus were not issued the Second Supplemental
Questionnaire), id. at 105–09.
Commerce listed three groups of AFA companies totaling 37 companies in the
appendices accompanying the Issues and Decision Memorandum: 20 “companies that
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Consol. Court No. 23-00144 	Page 20
failed to provide usable responses”; 16 four “companies that refused and failed
verification”; 17 and 13 “companies that failed to respond.” 18 Id., Apps. I–III (formatting
altered).
In the Final Determination, Commerce made a country-wide circumvention
finding. 88 Fed. Reg. at 46,741; see also I&D Mem. at 189–92. Commerce affirmed its
establishment of a certification program for “eligible firms to certify when their entries
are not produced under any of the [five] production scenarios.” I&D Mem. at 194.
Commerce continued to prohibit all AFA companies from participating in the certification
regime. Id. As a result, entries from AFA companies would be suspended and the
importers required to pay cash deposits of estimated AD and CVD duties. Id. at 195.
Commerce explained that suspended entries may be reviewed for a determination as to
16 Those companies are: Arrow Forest International Co., Ltd, BAC Son Woods
Processing Joint Stock Company, BHL Thai Nguyen Corp., Eagle Industries Company
Limited, Golden Bridge Industries Pte. Ltd., Govina Investment Joint Stock Company,
Greatriver Wood Co. Ltd., Groll Ply and Cabinetry, Hai Hien Bamboo Wood Joint Stock
Company, Her Hui Wood (Vietnam) Co., Ltd., Hoang LAM Plywood Joint Stock Co.,
Huong Son Wood Group Co., Ltd., Innovgreen Thanh Hoa Co. Ltd., Lechenwood Viet
Nam Company Limited, Long LUU Plywood Production Co., Ltd., Long Phat
Construction Investment and Trade Joint Stock Company, Plywood Sunshine Ltd. Co.,
Quang Phat Woods JSC, TEKCOM Corporation, and Win Faith Trading.
17 Those companies are: Cam Lam Joint Stock Company, TL Trung Viet Company
Limited, VVAT Company Limited, and Zhongjia Wood Company Limited.
18 The non-responding companies are: Bao Yen MDF Joint Stock Company, BHL
Vietnam Investment and Development, Dong Tam Production Trading Company
Limited, Linwood Vietnam Co. Ltd, Quoc Thai Forestry Import Export Limited Company,
Rongjia Woods Vietnam Company Limited, Sumec Huongson Wood Group Co. Ltd.,
Tan Tien Co. Ltd, Thang Long Wood Panel Company Ltd., Thanh Hoa Stone Export
Company, Truong Son North Construction JSC, Vietind Co. Ltd., and Vietnam Golden
Timber Company Limited.
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whether they contain subject merchandise in a subsequent administrative review. See
id.
This appeal followed. The court heard oral argument on July 1, 2025. Docket
Entry, ECF No. 127. 19
J URISDICTION AND S TANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(vi) and 28
U.S.C. § 1581(c). The court will uphold an agency determination that is supported by
substantial evidence and otherwise in accordance with law. 19 U.S.C.
§ 1516a(b)(1)(B)(i).
DISCUSSION
From the Initiation Notice in June 2020 to the Final Determination in July 2023,
Commerce spent three years investigating more than 50 Vietnamese companies for
circumvention of the Plywood Orders. The court first addresses certain procedural
challenges to Commerce’s Final Determination before turning to Commerce’s
compliance with the statutory facts available and adverse facts available requirements
and other matters that are necessary to address at this time. While the procedural
challenges that follow are not meritorious, the court finds that a remand is required for
various reasons tied to Commerce’s use of AFA.
19 Subsequent citations to the oral argument include the approximate time stamp from
the recording, which is available at https://www.cit.uscourts.gov/sites/cit/files/
20250701_23-00144_MAB.mp3. (The court is aware that the time stamp may vary
between the online version of the recording and any downloaded versions of the
recording and provides time stamp ranges in an effort to account for the difference.)
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I. 	Procedural Challenges
Plaintiffs’ challenges to Commerce’s approach to the inquiry almost exclusively
implicate decisions that are left to the agency’s discretion. Thus, they are readily
dismissed.
A. Data Collection and Use of Secondary Sources
DH Plaintiffs 20 argue that the agency’s data collection was inadequate, and that
the agency erred by relying on “uncorroborated secondary sources.” DH Pls.’ T1 Mem.
at 20–27; see also Greatriver’s T1 Mem. at 17–21; MG Pls.’ T1 Mem. at 28–33.
Nothing in the statute prescribes specific questions Commerce must ask.
Plaintiffs fault Commerce for not requesting information specific to the statutory criteria
governing circumvention, see, e.g., DH Pls.’ T1 Mem. at 21–23, but Commerce
requested information relevant to the production of inquiry merchandise by the
respondents and about affiliations with producers or exporters of plywood or plywood
inputs in China, see, e.g., Q&V Questionnaire, Attach. II. While Commerce may have
curtailed its data collection when it concluded that the AFA companies’ responses
regarding the nonproduction of inquiry merchandise were inadequate to the agency’s
inquiry, Commerce was not required to request information regarding the additional
20 For consistency and ease of reference, the court uses the same firm-based naming
conventions for groups of plaintiffs that are used by the parties in their respective briefs.
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statutory criteria that are relevant to whether inquiry merchandise is circumventing the
Plywood Orders when no company reported producing inquiry merchandise. 21
Plaintiffs’ arguments regarding Commerce’s reliance on a petitioner-provided
declaration and information from the Finewood scope proceeding, see, e.g., DH Pls.’ T1
Mem. at 24–27, also lack merit. While framed as a failure to “corroborate” information,
Plaintiffs’ real concern appears to lie in the weight Commerce afforded to those sources
of information. See, e.g., id. at 25 (asserting that Commerce “cite[s] almost exclusively
to the Coalition’s submission in support of its findings”); id. at 26 (arguing that
Commerce failed to consider factors relevant to the determination whether “to accord
weight to . . . a declaration”). But interested parties had, and used, the opportunity to
rebut the information in the Coalition’s declaration. See, e.g., Cmts. [on] Pet’r’s Req. for
Scope/Anti-Circumvention Inquiry (Mar. 20, 2020) at 22, CR 6–7, PR 19 (discussing
their position that the declaration “provides no concrete evidence whatsoever to support
[the Coalition’s] hypothesis”). With respect to the Finewood scope documents,
Commerce placed those documents on the record of this proceeding and provided
interested parties with the opportunity to submit rebuttal information. Finewood Mem. at
1. Plaintiffs have not offered persuasive reasons to reject Commerce’s use of this
21 Indeed, had Commerce concluded that the AFA companies’ responses regarding the
lack of production of inquiry merchandise were reliable, there likely would have been no
need for Commerce to request additional information. The court’s conclusion that
Commerce erred in its AFA analysis, discussed below, does not change the court’s
assessment with respect to the decisions Commerce made at the time it prepared the
questionnaires.
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information. 22 As to the weight Commerce afforded these sources of information in
support of the agency’s affirmative circumvention determination, the court need not
further address whether substantial evidence ultimately supported Commerce’s
determination because the court’s resolution of arguments regarding the agency’s use
of AFA requires a remand and, thus, the nature of the record may change.
To the extent Plaintiffs seek to argue that Commerce failed to comply with the
corroboration requirement in 19 U.S.C. § 1677e(c), Plaintiffs failed to develop any
argument that the corroboration provision applied to the record information Commerce
obtained or placed on the record in this circumvention inquiry. See DH Pls.’ T1 Mem. at
27 (containing what appears to be an incidental citation to section 1677e(c) within a
block quotation intended to support the view that the “court simply cannot accept
Commerce’s finding of circumvention exclusively on uncorroborated secondary sources
as supported by substantial evidence”). Accordingly, the court declines to further
address the argument. See࣯ Home Prods. Int., Inc. v. United States,ௗ36 CIT 665, 673,
837 F. Supp. 2d 1294, 1301 (2012)ௗ(“[I]ssues adverted to in a perfunctory manner,
unaccompanied by some effort at developed argumentation, are deemed waived.”
(quotingௗUnited States v. Zannino,ௗ895 F.2d 1, 17 (1st Cir.1990) (alteration in original))).
22 Contrary to Plaintiffs’ arguments, MG Pls.’ T1 Mem. at 28, 32; Greatriver’s T1 Mem.
at 18, Commerce’s reversal of its Finewood scope ruling based on the court’s
interpretation of the scope language does not suggest inherent inaccuracies in the
underlying factual information collected during the Finewood Scope Proceeding,
particularly insofar as that information is contemporaneous with a portion of the inquiry
period.
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B. Non-selection of Mandatory Respondents
Greatriver argues that Commerce erred by failing to select mandatory
respondents. Greatriver’s T1 Mem. at 18; Greatriver’s T1 Reply at 3–4.
Nothing in the circumvention statute suggests, let alone requires, the selection of
mandatory respondents. Even in AD/CVD investigations and administrative reviews,
Commerce’s selection of mandatory respondents is discretionary. See 19 U.S.C.
§ 1677f-1(c)(2), (e)(2). Although Greatriver points out that Commerce has selected
mandatory respondents in the past, Greatriver’s T1 Mem. at 20, the agency explained
that “there is no established practice for selecting respondents” for circumvention
inquiries, I&D Mem. at 21, and Greatriver demonstrates no error in that assertion.
Disagreement with Commerce’s reasons for not selecting mandatory
respondents here is not a basis for a remand. Commerce stated that it did not select
mandatory respondents because no respondents “reported selling inquiry merchandise
to the United States.” I&D Mem. at 22. While examining the no-shipment claims of the
largest exporters considered representative of the Vietnamese industry may be a more
efficient preliminary step than attempting to “fully vet” such claims from roughly 50
companies, id. at 21, that decision was for Commerce to make. However, as discussed
herein, Commerce cannot avoid its statutory obligations pursuant to 19 U.S.C.
§ 1677m(d) based on impracticability arising from a circumstance solely within
Commerce’s control (i.e., its decision not to select respondents for individual
examination).
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C. Time Taken to Complete the Circumvention Inquiry
STR Plaintiffs fault Commerce for taking roughly 1,120 days to complete its
investigation, rather than the 300 days “contemplated” by the statute. STR Pls.’ T1
Mem. at 28 (citing 19 U.S.C. § 1677j(f)). DH Plaintiffs raise a similar argument. DH
Pls.’ T2 Mem. at 86–87. Plaintiffs overreach: the statute directs the agency to make the
determination within 300 days of initiation “to the maximum extent practicable.” 19
U.S.C. § 1677j(f). STR Plaintiffs offer no legal basis for judicial action in response to
Commerce exceeding a non-mandatory deadline. DH Plaintiffs’ arguments are likewise
short on legal authority for the court to impose any consequence for Commerce
exceeding this timeline.
In sum, Plaintiffs’ procedural challenges either lack merit or implicate issues,
such as Commerce’s weighing of the evidence, that the court must hold in abeyance
pending Commerce’s remand determination. See infra, Section VI. Accordingly, none
of Plaintiffs’ procedural arguments provide an independent basis for a remand.
II. 	Adverse Facts Available (“AFA”)
For the Final Determination, Commerce concluded that the AFA companies
failed to cooperate to the best of their ability and treated their questionnaire responses
stating that they do not produce inquiry merchandise as unreliable. 23 A crucial statutory
23 While the focus of Commerce’s Final Determination, and, in particular, the agency’s
Issues and Decision Memorandum, is on the AFA companies, the court infers from the
difference between the number of AFA companies and the number of Q&V
questionnaires the agency issued that Commerce accepted the no-shipment claims
from roughly 20 companies. Commerce’s cash-deposit instructions to Customs stated
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Consol. Court No. 23-00144 	Page 27
predicate for Commerce’s affirmative circumvention finding, namely, that inquiry
merchandise relevant to the five production scenarios is being completed or assembled
in Vietnam for purposes of 19 U.S.C. § 1677j(b)(1)(B), is thus based on an adverse
inference. I&D Mem. at 11–12 (discussing completion of merchandise in a foreign
country); Prelim. Mem. at 18 (stating that, “as AFA, we preliminarily find that
Vietnamese companies are completing hardwood plywood in Vietnam under the
aforementioned production scenarios,” and that such finding is “bolstered” by trade data
and a declaration provided by the Coalition).
As an initial matter, contrary to the Government’s position, Commerce’s use of
AFA is not moot. The Government argues that Commerce’s use of an adverse
inference is moot because the consequences of AFA—ineligibility to certify and
requirement to pay cash deposits—have been superseded by the final results of the fifth
administrative review (“AR5”), in which certain companies obtained cash-deposit
refunds and entry into the certification regime. Oral Arg. 2:17:30–2:24:30. Plaintiffs
argue that Commerce’s use of AFA is not moot because the circumvention finding
amounts to a presumption that may be rebutted if the companies are eligible to certify,
but the requirement to certify extends for the life of the Plywood Orders and the
eligibility to certify may be rescinded. Oral Arg. 2:26:30–2:34:30. The court disagrees
with the Government because, in the absence of evidence of the production of inquiry
generally that “importers and exporters of hardwood plywood from Vietnam are eligible
for the certification process” unless they are identified as ineligible in the instructions.
See Message No. 3215402 (Aug. 3, 2023) ¶ 5(a), PR 845. Commerce listed 37
companies as ineligible. See id.
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merchandise by respondents, Commerce’s use of AFA underpins the agency’s entire
affirmative determination, without which there would be no certification regime.
Additionally, in AR5, Commerce did not find that all AFA companies are eligible to
participate in the certification process, and AR5 did not address the assessment rates
for all entries that were suspended in the course of the circumvention inquiry. See
generally Decision Mem. for Hardwood Plywood Prods. From China, A-570-051, C-570-
052 (May 12, 2025) (“AR5 Decision Mem.”). 24 Importantly, as the Government
acknowledges, any remand regarding Commerce’s use of AFA may require Commerce
to reconsider its basis for a country-wide circumvention finding if Commerce continues
to reach an affirmative determination. Oral Arg. 2:22:30–2:25:00. Accordingly, the
court addresses Commerce’s AFA analysis.
A. Compliance with 19 U.S.C. § 1677m(d)
As noted above, if Commerce determines that a response is deficient, the
agency has an obligation to “promptly inform the [submitting party] of the nature of the
deficiency and shall, to the extent practicable, provide that [party] with an opportunity to
remedy or explain the deficiency in light of the time limits established for the completion
of investigations or reviews under this subtitle.” 19 U.S.C. § 1677m(d). Compliance
with section 1677m(d) is a necessary predicate to the agency’s use of the facts
otherwise available and, thus, the adverse inferences drawn from the facts available.
24 Commerce’s decision memoranda are publicly available at https://access.trade.gov/
public/FRNoticesListLayout.aspx, with separate links for pre- and post-June 2021
memoranda.
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Plaintiffs contend that they lacked adequate notice of deficiencies prior to the
preliminary determination. STR Pls.’ T2 Mem. at 16–19; DH Pls.’ T2 Mem. at 19–20,
38–40, 47–48, 52–53, 59–60, 62–63, 66–67, 70–71 (advancing similar arguments for
each respondent); 25 Greatriver’s T2 Mem. at 14–17; MG Pls.’ T2 Mem. at 16, 19–20.
The Government counters that Commerce made “repeated requests” for information in
the form of supplemental questionnaires both to respondents and to the GOV, and
those requests provided notice of deficiencies. Def.’s T2 Resp. at 17–19. 26 Moreover,
the Government contends, steps taken by some respondents to correct deficiencies
identified in response to GOV data and comments by the Coalition mean that notice
was adequate. Def.’s T2 Resp. at 19. According to the Coalition, Commerce had to
balance the recommended 300-day timeframe for completion with section 1677m(d)’s
requirement to provide an opportunity to remedy deficiencies “to the extent practicable.”
Def.-Int.’s T2 Resp. at 15.
In this inquiry, Commerce issued two types of supplemental questionnaires:
“generic” first and second supplemental questionnaires, so characterized because they
were sent to all responding companies and included the same generic questions, and
25 With respect to Golden Bridge Industries Pte. Ltd., Commerce identified a
discrepancy based on that company’s response to a request Commerce made for the
first time in the Second Supplemental Questionnaire. DH Pls.’ T2 Mem. at 38–39. DH
Plaintiffs argue that Commerce’s June 25, 2021, memorandum clarifying HTS codes to
be reported in the second supplemental questionnaire response does not relieve
Commerce of its obligations under 19 U.S.C. § 1677m(d). Id. at 56–57.
26 This reference to “repeated requests” for information appears throughout this section
of the Government’s brief and with respect to specific companies. See Def.’s T2 Resp.
at 17–115.
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“company-specific” supplemental questionnaires sent to specific respondents with
questions specific to that respondent. Whether any supplemental questionnaire
constitutes adequate notice is fact-specific and depends on the questionnaires
themselves. As the court has observed, “one or more supplemental questionnaires can
fulfill [Commerce’s] obligation to provide an opportunity to remedy deficient submissions
pursuant to 19 U.S.C. § 1677m(d)” provided that the “subsequent questionnaire [gave]
the submitter actual notice of the deficiency or reiterated the initial request.” Apiário
Diamante Comercial Exportadora Ltda. v. United States, 48 CIT __, __, 705 F. Supp. 3d
1398, 1410 (2024) (internal citation omitted). The court first addresses whether the
generic supplemental questionnaires provided notice to respondents of any deficiencies
and then addresses whether the company-specific questionnaires provided notice to the
recipient company of the deficiencies upon which Commerce based its use of AFA.
1. 	First and Second Supplemental Questionnaires
Commerce asserted that the first and second supplemental questionnaires
discharged the agency’s duty under the statute to provide notice of deficiencies and it
was impractical to issue further questionnaires. I&D Mem. at 123, 125, 129–34. This
assertion applies to the companies that did not receive a company-specific
questionnaire and those that did receive a company-specific questionnaire but for whom
Commerce used AFA based on their responses to the generic supplemental
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questionnaires. 27 The court disagrees that Commerce provided these companies with
adequate notice of deficiencies in their prior questionnaire responses based solely on
the first and second supplemental questionnaires.
A review of the questionnaires dispels the notion that the generic supplemental
questionnaires provided adequate notice of deficiencies. Among other matters, the
Q&V Questionnaire requested information about plywood inputs produced in China,
inputs sourced from resellers in Vietnam, wood species, and affiliations with producers
or exporters of plywood or plywood inputs in China. Q&V Questionnaire, Attach. II. The
First Supplemental Questionnaire requested, among other matters, documentation from
companies that reported no exports of plywood using Chinese core components and
either reported peeling their own veneers or reported purchasing core components. 1st
Suppl. Questionnaire, Attach. II. The First Supplemental Questionnaire also requested
information about the respondents’ affiliations, if any, with Chinese manufacturers or
27 In the next section, the court discusses the respondents that received company-
specific questionnaires and addresses whether those questionnaires provided adequate
notice of deficiencies. That analysis shows that Win Faith Trading is the only
respondent for which the company-specific questionnaire provided notice of the
deficiency underlying Commerce’s use of AFA. Accordingly, the analysis in this section
applies to all companies listed in Appendix I of the Issues and Decision Memorandum
except Win Faith Trading. See I&D Mem., App. I. Those companies are: Arrow Forest
International Co., Ltd, BAC Son Woods Processing Joint Stock Company, BHL Thai
Nguyen Corp., Eagle Industries Company Limited, Golden Bridge Industries Pte. Ltd.,
Govina Investment Joint Stock Company, Greatriver Wood Co. Ltd., Groll Ply and
Cabinetry, Hai Hien Bamboo Wood Joint Stock Company, Her Hui Wood (Vietnam) Co.,
Ltd., Hoang LAM Plywood Joint Stock Co., Huong Son Wood Group Co., Ltd.,
Innovgreen Thanh Hoa Co. Ltd., Lechenwood Viet Nam Company Limited, Long LUU
Plywood Production Co., Ltd., Long Phat Construction Investment and Trade Joint
Stock Company, Plywood Sunshine Ltd. Co., Quang Phat Woods JSC, and TEKCOM
Corporation. See id.; supra, note 16.
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exporters of plywood or plywood inputs or with Chinese individuals with such affiliations.
Id. The Second Supplemental Questionnaire requested respondents to report the eight-
digit Harmonized Tariff Schedule (“HTS”) subheadings and description for all imports
under HTS headings 4408 and 4412, including the supplier names and sample entry
documentation, for respondents’ imports into Vietnam from China. 2nd Suppl.
Questionnaire, Attach II. Commerce also requested a list of Vietnamese suppliers of
plywood or plywood inputs; a description of products purchased from these Vietnamese
suppliers; and, as necessary, HTS information and documentation regarding the
suppliers’ purchase of plywood or plywood inputs from China. Id. Lastly, Commerce
requested similar HTS information and documentation for products that affiliates of the
respondents exported from China to Vietnam, including the identity of the Vietnamese
companies that the respondents’ Chinese affiliates provided with products covered by
HTS headings 4408 or 4412. Id.28
Neither supplemental questionnaire contains words like “clarify,” “deficient,”
“discrepancy,” or “inconsistency.” To the contrary, the supplemental questionnaires
sought “additional details.” 1st Suppl. Questionnaire, cover page at 1; 2nd Suppl.
28 Commerce issued a clarification regarding the Second Supplemental Questionnaire.
Commerce stated that the HTS information requested should be reported using the HTS
of Vietnam. Commerce also stated that it “seeks an exhaustive list of all products
exported from China and entered into Vietnam under subheadings 4408 and 4412 by
any affiliate of your company, regardless of where that affiliated company is located.”
2nd Suppl. Clarification Mem. at 1. Commerce further stated that it “requested
information for plywood and wood inputs of plywood exported from China to Vietnam,
regardless of the ultimate destination of that plywood or the plywood produced from
those wood inputs of plywood.” Id. at 2.
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Questionnaire, cover page at 1. Commerce’s attempt to equate “additional information”
with “clarification” is not persuasive. See I&D Mem. at 123 (“[The fact t]hat Commerce
requested this information in the First Supplemental Q&V Questionnaire notified
respondents that there were deficiencies in these areas in the Q&V Questionnaire
responses and that Commerce needed additional information/clarification.”).
Commerce stated no such request for clarification in either of the generic supplemental
questionnaires and instead stated that recipients were “receiving this letter because
[they] responded to Commerce’s” prior questionnaire. 1st Suppl. Questionnaire, cover
page at 1; 2nd Suppl. Questionnaire, cover page at 1.
Indeed, that Commerce sent the first and second supplemental questionnaires to
all companies that responded to the prior questionnaire, including those for whom
Commerce identified no errors in their responses, see 1st Suppl. Questionnaire, Cover
Letter at 1; 2nd Suppl. Questionnaire, Cover Letter at 1, undermines Commerce’s claim
that the supplemental questionnaires provided notice of any particular deficiency. While
Commerce need not use certain “magic words” to alert a respondent to a deficiency,
these generic and widely-issued supplemental questionnaires are the type of “[b]roadly
drawn” questionnaires that do not provide notice of any particular deficiency and
therefore deprives respondents of the opportunity to remedy later-identified deficiencies.
Hyundai Steel Co. v. United States, 45 CIT __, __, 518 F. Supp. 3d 1309, 1322 (2021);
see id. at 1326 (supplemental questionnaire did not satisfy section 1677m(d) when it
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mentioned “nothing about any error” and failed to use language that would alert the
respondent to a deficiency in a prior response). 29
Commerce’s, and by extension the Government’s, references to “repeated
requests” for information overstate the record. The Government argues that the First
Supplemental Questionnaire “addressed inconsistencies regarding affiliates and inputs,”
and the Second Supplemental Questionnaire “addressed multiple [additional] issues.”
Def.’s T2 Resp. at 17–18. But as discussed above, even if Commerce intended to
address those matters in the generic supplemental questionnaires, Commerce failed to
alert the respondents to any specific inconsistencies or issues. At most, with respect to
affiliations, Commerce requested overlapping information. Commerce first requested
information regarding affiliated producers or exporters of plywood or plywood inputs in
China, Q&V Questionnaire, Attach. II at 2 (question 8), then requested information
about affiliations with Chinese manufacturers or producers or with Chinese individuals
and their affiliations, 1st Suppl. Questionnaire, Attach. II at 2 (question 3). Commerce
followed these requests with a request for HTS and other information relevant to
affiliates and the affiliates’ exports from China into Vietnam, 2nd Suppl. Questionnaire,
Attach. II at 2 (question 3.a), later clarifying that HTS information should be reported
regardless of the affiliate’s location, 2nd Suppl. Clarification Mem. at 1. But Commerce
did not express any deficiency in, or need to revisit, previous answers. Rather,
29 Commerce’s company-specific questionnaires referenced prior responses by each
recipient respondent and requested reconciliation of those responses with other
reported information. See, e.g., Plywood Sunshine Co. Ltd. Q&V Suppl. Questionnaire
(Feb. 26, 2021) (“Plywood Sunshine Suppl. Questionnaire”), CR 159, PR 163.
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Commerce requested partially overlapping information in an iterative and slightly
different fashion. 30
Accordingly, even with this minimal overlap, Commerce’s generic supplemental
questionnaires did not provide notice of the multiple deficiencies Commerce
subsequently claimed as the basis for AFA, which also included issues surrounding the
reporting of HTS codes, veneer type, wood species type, suppliers, and shareholders;
discrepancies with GOV data; missing Customs papers; and corrections to prior
responses that were not explicitly presented as such. 31
The Government further suggests that data from the GOV, and the Coalition’s
submissions, should have alerted respondents to inconsistencies in their questionnaire
responses or with respect to the GOV data or other record evidence, and that this
30 Commerce’s memorandum clarifying the Second Supplemental Questionnaire
indicates that the agency distinguishes information about companies “in China,” the
language used in the Q&V Questionnaire, from information about “Chinese companies,”
akin to the language used in the First Supplemental Questionnaire. Compare Q&V
Questionnaire, Attach. II at 2, with 1st Suppl. Questionnaire, Attach. II at 2.
Presumably, then, exporting a product from China to Vietnam requires a company to be
“in China” but not necessarily “Chinese” with respect to ownership. See 2nd Suppl.
Clarification Mem. at 1. Thus, Commerce requested different information in the Q&V
and first supplemental questionnaires, belying Commerce’s assertion that it made
“repeated requests for the same information.” I&D Mem. at 131.
31 Many respondents assert that they first learned about Commerce’s concerns with
their questionnaire responses in the Preliminary Determination, roughly a year after
responses to the Second Supplemental Questionnaire were filed, and thus not
“promptly” with respect to any questionnaire response. Commerce does not rely on the
Preliminary Determination to fulfill the notice requirement. See, e.g., I&D Mem. at 126
(explaining that “[a]lthough Commerce explained its findings for the first time in the
Preliminary Determination, Commerce had notified the parties of deficiencies, and
provided them with an opportunity to remedy the deficiencies”). Accordingly, the court
reviews Commerce’s position that the generic supplemental questionnaires provided the
requisite notice and finds that they did not.
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information is relevant to 19 U.S.C. § 1677m(d). Def.’s T2 Resp. at 18–19 (relying, in
part, on 19 C.F.R. § 351.501(c)(1)(v)). The question is not, however, whether
respondents had the opportunity, pursuant to Commerce’s regulations, to submit
rebuttal factual information. Rather, the question before the court is whether Commerce
complied with its obligations pursuant to 19 U.S.C. § 1677m(d). The Government offers
no authority for the proposition that interested party filings alone may fulfill that
requirement. And while the Government relies on New Mexico Garlic Growers Coalition
v. United States, 42 CIT __, __, 352 F. Supp. 3d 1281, 1294–95 (2018), for the
proposition that notice requirements are satisfied when “the petitioner submits
comments regarding the deficiencies and Commerce issues a supplemental
questionnaire,” Def.’s T2 Resp. at 20, that case is unavailing. There, Commerce issued
a specific supplemental questionnaire based on the petitioner’s comments about
“misreporting.” N.M. Garlic Growers, 352 F. Supp. 3d at 1294–95. That relationship
between a petitioner’s comments and Commerce’s supplemental questionnaires is
absent here.
Arguments surrounding administrability and practicability are also unpersuasive.
The Coalition suggests that “the scale of the underlying investigation” makes this a case
of first impression with respect to Commerce’s compliance with 19 U.S.C. § 1677m(d),
Def.-Int.’s T2 Resp. at 16 n.3, but the requirement to inform respondents of deficiencies
does not change based on the number of respondents or because Commerce declined
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to select mandatory respondents. 32 Similarly, while the court is mindful that Commerce
operates under time and resource constraints, see I&D Mem. at 133 (describing the
“unprecedented” scale of the investigation), the court is likewise mindful that 19 U.S.C.
§ 1677j(f) lacks a mandatory statutory deadline, as evidenced by the three years
Commerce spent on this inquiry.
Case law cited by the Government to support Commerce’s reliance on the
generic supplemental questionnaires is largely inapposite because those cases involved
explicit notice. See Def.’s T2 Resp. at 19. In Maverick Tube Corp. v. United States, the
U.S. Court of Appeals for the Federal Circuit (“Federal Circuit”) found the notice
requirement met when, in the supplemental questionnaire, “Commerce noted that
Borusan ‘did not . . . report [hot-rolled steel] purchases for [Borusan’s] two other mills,’
despite the original questionnaire asking for that information.” 857 F.3d 1353, 1356
32 Regarding this point, parties debate the relevance of Hitachi Energy USA Inc. v.
United States, 34 F.4th 1375, 1384 (Fed. Cir. 2022), namely, the statement that “the
statutory entitlement to notice and opportunity to remedy any deficiency is unqualified.”
The Hitachi court subsequently issued an order modifying the sentence to state that “the
statutory entitlement to notice and opportunity to remedy any deficiency is unqualified in
the circumstances of this case.” Hitachi Energy USA Inc. v. United States, 2022 WL
17175134, at *1 (Fed. Cir. Nov. 23, 2022) (per curiam) (emphasis added) (denying
petition for panel rehearing or rehearing en banc). The modification is consistent with
the statutory language tempering Commerce’s obligation to provide an opportunity to
remedy a deficiency based on what is “practicable” and “in light of the time limits
established for the completion of investigations or reviews.” 19 U.S.C. § 1677m(d).
The statute, however, requires notice regardless of whether Commerce is able to afford
the respondent an opportunity to remedy the deficiency. See id. (stating that
Commerce shall inform the respondent of the deficiency and shall, when practicable,
provide an opportunity to remedy the deficiency). Such notice is important also for
respondents to dispute Commerce’s deficiency finding and exhaust their administrative
remedies. Here, however, for the respondents covered by this analysis, Commerce
provided neither timely notice nor opportunity to remedy deficiencies.
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(Fed. Cir. 2017) (second alteration in the original). Likewise, in Essar Steel Ltd. v.
United States, the supplemental questionnaire specifically identified a response to the
original questionnaire and contrasted it with a press release, thus clearly identifying a
precise inconsistency. 678 F.3d 1268, 1275–76 (Fed. Cir. 2012). 33
Recently, in Baroque Timber Industries (Zhongshan) Co. v. United States, the
court followed the rationale of Maverick Tube to hold that Commerce did not comply
with section 1677m(d) because the agency did not explicitly identify the deficiency and
request clarification. 49 CIT __, __, 766 F. Supp. 3d 1296, 1311–13 (2025). 34 The
court reasoned that “Commerce’s repetition alone of the [pertinent] questions was not
sufficient to provide the [responding party] with notice that its initial responses to those
questions were deficient.” Id. at 1313. Based on the foregoing, the court reaches the
same conclusion here. 35
33 Essar, in fact, does not address notice but rather involves a challenge to Commerce’s
conclusion that a party did not act to the best of its ability in responding to the
questionnaire. 678 F.3d 1268 at 1275–76.
34 The court issued a parallel opinion in Baroque Timber Industries (Zhongshan) Co. v.
United States, 49 CIT __, 776 F. Supp. 3d 1290 (2025), holding the same.
35 The Government also cites Saha Thai Steel Pipe Public Co. v. United States, 47 CIT
__, __, 663 F. Supp. 3d 1356, 1373–74 (2023), and Apiário Diamante, 705 F. Supp. 3d
at 1410. Def.’s T2 Resp. at 19–20. Those cases are distinguishable. See Saha Thai,
663 F. Supp. 3d at 1373–74 (finding compliance with 19 U.S.C. § 1677m(d) when
Commerce issued a “series of questionnaires” seeking information about affiliates and
the respondent demonstrated understanding of the questions); Apiário Diamante, 705 F.
Supp. 3d at 1410–11 (acknowledging that a supplemental questionnaire may suffice for
purposes of notice but rejecting the Government’s argument that general references to
“acceptable types of documentation” was sufficient to provide notice by “reiterat[ing] the
requests . . . for correspondence”). Additionally, in Hyundai Heavy Industries, Co. v.
United States, the court concluded that Commerce complied with 19 U.S.C. § 1677m(d)
when the agency issued a supplemental questionnaire specifically requesting the
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Accordingly, the court finds that, for the companies covered by this analysis, see
supra, note 27, Commerce failed to comply with 19 U.S.C. § 1677m(d). As such, a
remand is required for Commerce to afford the statutorily required notice and
opportunity to remedy deficiencies with respect to these companies.
2. 	Company-Specific Questionnaires
For the respondents that received company-specific questionnaires, additional
analysis is necessary to consider whether those questionnaires provided notice of the
deficiencies the agency relied on to disregard the responses and use AFA. 36
i. 	Plywood Sunshine Co. Ltd. (“Plywood Sunshine”)
Commerce stated three bases for using AFA with respect to Plywood Sunshine:
inconsistencies between responses to the Q&V and second supplemental
questionnaires regarding the reporting of Vietnamese suppliers of plywood inputs; 37
respondent to clarify its earlier answer to a question about service-related revenue and,
if necessary, to revise its sales database. 42 CIT __, __, 332 F. Supp. 3d 1331, 1337,
1341–42 (2018). Hyundai Heavy Industries does not support Commerce’s actions here.
36 While the court addresses these companies individually based on their particular
facts, Commerce also relied on deficiencies in their responses to the generic
supplemental questionnaires to use AFA. The court’s analysis of the generic
supplemental questionnaires thus applies equally to these respondents.
37 Commerce explained that although Plywood Sunshine initially reported that it did not
source inputs from resellers in Vietnam, in the second supplemental questionnaire
response Plywood Sunshine reported purchasing inputs from Vietnamese suppliers.
Prelim. AFA Mem. at 20 & nn.176–77 (citing Submission of Q&V Resp. (Oct. 1, 2020)
(“Plywood Sunshine Q&V Resp.”) at 3–4, CR 49–50, PR 96, and Submission of Second
Suppl. Q&V Resp. (July 8, 2021) (“Plywood Sunshine 2nd Suppl. Resp.”), Ex. 2, CR
274–75, PR 306).
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revisions to the reporting of wood species; 38 and a failure to fully respond to
Commerce’s request for “an exhaustive list” of products exported from China to Vietnam
under certain tariff subheadings regardless of where the affiliate was located. Prelim.
AFA Mem. at 20. 39 In Plywood Sunshine’s company-specific questionnaire, Commerce
requested further information about the timing of the company’s plywood sales and
exports to the United States, and about the wood species and veneer type for sales
during the inquiry period. Plywood Sunshine Suppl. Questionnaire, Attach. 40
MG Plaintiffs contend that Commerce failed to provide notice of, or an
opportunity to explain or remedy, any deficiencies. MG Pls.’ T2 Mem. at 17–20. In
support of Commerce’s determination, the Government references its prior arguments
38 Commerce stated that Plywood Sunshine reported [[ 	]] in the Q&V
questionnaire response but no species for the [[ 	]]. Prelim. AFA
Mem. at 20 & n.178 (citing Plywood Sunshine Q&V Resp., Ex. 1 at Attach. II-C).
According to Commerce, Plywood Sunshine “contradicted this information” when it
reported producing plywood with face and back veneers, and reported purchasing
[[ 	]] and [[ 	]]. Id. at 20 & nn.179–81
(citing Submission of Suppl. Q&V Resp. (Mar. 25, 2021) (“Plywood Sunshine 1st Suppl.
Resp.”) at 2, CR 212, PR 229; Plywood Sunshine 2nd Suppl. Resp., Exs. 1–3). The
court understands Commerce’s citation to page 2 of the first supplemental questionnaire
response to identify information on page 5 of the document’s internal pagination, which
is the second page of Plywood Sunshine’s response to the company-specific
questionnaire.
39 The court cites to the preliminary AFA memorandum throughout this section based on
Commerce’s detailed analysis therein. In the I&D Memorandum, Commerce addressed
arguments made by counsel for Plywood Sunshine more generally in its discussion of
section 1677m(d) and AFA. See I&D Mem. at 123–24.
40 Commerce noted that Plywood Sunshine had reported plywood sales only in [[
]] even though the company was incorporated in [[ 	]]. Plywood Sunshine
Suppl. Questionnaire, Attach. (question 1). Commerce also requested Plywood
Sunshine to report the wood species for any [[ 	]] after Plywood
Sunshine reported only [[ 	]] for [[ 	]]. Id., Attach. (question 2).
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about section 1677m(d) generally and states that the company-specific questionnaire
“address[ed] at least one of the issues” that underpinned Commerce’s use of AFA.
Def.’s T2 Resp. at 110; see also Def.-Ints.’ T2 Resp. at 51.
With respect to the reporting of resellers with inputs sourced from China,
Commerce faulted Plywood Sunshine for information provided in response to the
Second Supplemental Questionnaire. See Prelim. AFA Mem. at 20. The matter was
therefore not addressed in the company-specific questionnaire, which pre-dated the
Second Supplemental Questionnaire by several months. Compare Plywood Sunshine
Suppl. Questionnaire (dated Feb. 26, 2021), with 2nd Suppl. Questionnaire (dated June
15, 2021).
The same is true with respect to Plywood Sunshine’s response to Commerce’s
request for all tariff headings used by affiliates that exported plywood or plywood inputs
from China to Vietnam. Plywood Sunshine reported that it had no exports under
headings 4408 or 4412 by Chinese affiliates to report. See Plywood Sunshine 2nd
Suppl. Resp. at 3. However, after issuing the Second Supplemental Questionnaire,
Commerce clarified that it sought such information regardless of where the affiliate is
located. See 2nd Suppl. Clarification Mem. at 1. While there is no evidence that
Plywood Sunshine had any non-Chinese affiliates shipping such inputs from China to
report, Commerce faulted the company for not being “fully responsive to Commerce’s
request for information.” Prelim. AFA Mem. at 20. More importantly, to the extent that
Commerce identified a deficiency in Plywood Sunshine’s response to this new
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information request, Commerce was required to comply with 19 U.S.C. § 1677m(d)
before using this response as a basis for its use of AFA.
With respect to wood species, Commerce provided notice of a perceived gap in
Plywood Sunshine’s reporting regarding face or back veneer species. See Plywood
Sunshine Suppl. Questionnaire, Attach. at 1–2 (question 2). While Plywood Sunshine
was notified of this deficiency, Commerce faulted the company for “contradict[ing]”
earlier-reported information. Prelim. AFA Mem. at 20 & n.179 (citing Plywood Sunshine
1st Suppl. Resp.). Although section 1677m(d) permits Commerce, subject to section
1677m(e), to disregard additional information if Commerce “finds that such response is
not satisfactory,” Commerce failed to support its decision to disregard the supplemental
information with any such finding. Commerce also did not address Plywood Sunshine’s
fuller explanation regarding its clarification of the reported production and sales
information. See, e.g., Plywood Sunshine 1st Suppl. Resp. at 5 (stating that, during the
inquiry period, the company “sold only veneer core platforms in the domestic market”
but that, in April 2020, Plywood Sunshine “sold its first container” of “plywood with birch
face and back veneer . . . to the United States”). Commerce failed to explain why this
additional information, specifically requested by the agency, should be treated as
contradictory and as a basis for AFA.
Thus, in sum, Commerce’s issuance of a company-specific questionnaire did not
provide adequate notice of the deficiencies Commerce claims to exist with respect to
Vietnamese suppliers, tariff schedules, and the additional information Plywood
Sunshine provided with respect to wood species and veneer type.
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ii. 	Win Faith Trading Ltd. (“Win Faith”)
For Win Faith, Commerce based its determination to use AFA on inconsistent
answers about a specific affiliated company. Prelim. AFA Mem. at 23. Win Faith had
reported that it was affiliated with a Chinese exporter (“company A”) 41 but also that it
was not affiliated with any Chinese plywood producers. Id. Commerce pointed to
“publicly-available information” to show that company A “specialized in manufacturing
and exporting wood panel products, including plywood,” and that company A’s “related
group of companies includes multiple plywood factories.” Id. Commerce further
identified a sales contract connecting company A to Win Faith’s U.S. sales. Id.
Commerce issued a company-specific questionnaire to Win Faith asking it to
remedy these inconsistencies. [Win Faith] Q&V Suppl. Questionnaire (June 29, 2021)
(“Win Faith Suppl. Questionnaire”), CR 238, PR 276. In its response, Win Faith
explained that company A “is only a trading company” that describes itself in a particular
manner (i.e., as affiliated with producers) “for advertisement purposes.” Win Faith’s
Resp. to the Q&V Suppl. Questionnaire (July 6, 2021) (“Win Faith Suppl. Resp.”) at 2,
CR 250, PR 288. Win Faith further pointed to Commerce’s determination in other
segments and proceedings involving China that company A “is only a trading company.”
Id. Win Faith further attested that “none of its Chinese affiliates produce plywood or
plywood inputs.” Id. Commerce deemed this response unpersuasive and continued to
use AFA for the Final Determination. See I&D Mem. at 102–03.
41 The identity of the exporter, [[ 	]],
is considered proprietary information.
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MG Plaintiffs contend that, “[t]o the extent that Commerce had further questions”
regarding Win Faith’s responses, section 1677m(d) required Commerce to issue
another questionnaire. MG Pls.’ T2 Mem. at 16. But as it concerns Win Faith,
Commerce issued a clear questionnaire noting the inconsistencies in Win Faith’s
reporting and requested Win Faith to reconcile those statements and provide further
information about affiliated Chinese producers of plywood or plywood inputs. See Win
Faith Suppl. Questionnaire. Win Faith thus had the opportunity to explain and
document the reasons for any inconsistent statements. Commerce was not required to
provide Win Faith with another opportunity to do so.
iii. 	Lechenwood Viet Nam Company Limited (“Lechenwood”)
Commerce identified two issues with Lechenwood’s reporting: Lechenwood’s
reporting of its affiliations with Chinese producers of plywood or plywood inputs and
Lechenwood’s reporting of HTS codes for its inputs imported into Vietnam from China.
Prelim. AFA Mem. at 17–18; I&D Mem. at 98–99. On the first issue, Commerce issued
Lechenwood a company-specific questionnaire. See [Lechenwood] Q&V Suppl.
Questionnaire (Feb. 26, 2021), Attach., PR 161. DH Plaintiffs contend that Commerce
failed to comply with 19 U.S.C. § 1677m(d) only with respect to Lechenwood’s reporting
of HTS codes. DH Pls.’ T2 Mem. at 46–49; see also Shelter Forest’s T2 Mem. at 14–18
(advancing a similar argument). 42 The Government asserts that Commerce explained
42 Shelter Forest asserts that “a simple clarification could have addressed”
Lechenwood’s reporting of its affiliates, Shelter Forest’s T2 Mem. at 20, but does not
explain why Commerce’s issuance of a company-specific questionnaire on this matter
failed to provide the necessary notice of Commerce’s need for further information.
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why it was not practicable to issue another questionnaire. Def.’s T2 Resp. at 94 (citing
I&D Mem. at 133).
Lechenwood responded to Commerce’s Second Supplemental Questionnaire on
July 9, 2021. [Lechenwood] Submission of Second Suppl. Q&V Resp. (July 9. 2021)
(“Lechenwood 2nd Suppl. Resp.”), CR 348, PR 338. Therein, Lechenwood reported
various six-digit, nine-digit, and ten-digit tariff subheadings, id. Ex. 1, but not the eight-
digit subheadings Commerce had requested or the customs declarations for the
corresponding entries, see 2nd Suppl. Questionnaire, Attach. II at 1; Prelim. AFA Mem.
at 18. Commerce further stated that data from the GOV indicated that Lechenwood had
imports under an unreported HTS subheading. Prelim. AFA Mem. at 18. Commerce
also found that Lechenwood had reported invalid subheadings. Id. at 18 n.159.
As a general matter, Commerce’s assertion that its questionnaires provided
adequate notice of deficiencies and the opportunity to address those deficiencies, I&D
Mem. at 133, is unsupported by record evidence with respect to deficiencies identified in
Lechenwood’s response to the Second Supplemental Questionnaire. While
Lechenwood responded to the Second Supplemental Questionnaire on July 9, 2021,
Lechenwood 2nd Suppl. Resp. at 1, Commerce issued no supplemental questionnaires
with respect to the HTS reporting first requested in the Second Supplemental
Questionnaire in the more than 12 months between Lechenwood’s response and the
Preliminary Determination.
Additionally, with respect to the timing of Lechenwood’s submission relevant to
the GOV’s submissions, the GOV submitted initial data on April 6, 2021. I&D Mem. at
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76; see also id. at 130 & n.669 (referencing the GOV’s initial April 2021 submission and
a June 2021 submission with English translations). But on July 21, 2021, the GOV
submitted a revised dataset. See [GOV] Resp. to the Suppl. Questionnaire (July 21,
2021) (“GOV July 21, 2021 Submission”), Ex. GOV-02, CR 362, 364, PR 351, 353. 43
The revisions to the GOV data were necessary, in part, to provide product codes and
English-language translations for the names of Vietnamese importers. Suppl.
Questionnaire for GOV (June 15, 2021), CR 235–36, PR 260. Commerce also
requested documentation regarding specified importers, including Lechenwood. Id.
Attach. II.
As previously noted, Lechenwood filed its response to the Second Supplemental
Questionnaire on July 9, 2021, Lechenwood 2nd Suppl. Resp. at 1, before the GOV
submitted its final data set, see GOV July 21, 2021 Submission, Ex. GOV-02.
Commerce’s assertion that “the GOV provided its information before the responses to
Commerce’s second supplemental questionnaires were due” and that “parties were able
to address any inconsistencies between the GOV data and their initial or first
supplemental questionnaire responses in their [second] supplemental questionnaire
responses,” I&D Mem. at 76; see also id. at 130, is undermined by the content and
timing of the various submissions. Commerce failed to consider adequately that the
GOV provided information that Commerce did not request in the initial Q&V
Questionnaire or First Supplemental Questionnaire or that the GOV filed revised data
43 On August 9, 2021, the GOV provided the data in Excel format. CR 391, PR 371.
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after parties, such as Lechenwood, responded to the Second Supplemental
Questionnaire.
Accordingly, while Commerce complied with 19 U.S.C. § 1677m(d) with respect
to Lechenwood’s reporting regarding its affiliates, Commerce did not comply with the
statute with respect to Lechenwood’s reporting of HTS codes. 44
iv. 	Eagle Industries Company Limited (“Eagle” or “Eagle
Industries”)
In relying on adverse facts available for Eagle Industries, Commerce pointed to
discrepancies created by Eagle’s second supplemental questionnaire response. [Eagle]
Q&V Second Suppl. Questionnaire [Resp.] (July 9, 2021) (“Eagle 2nd Suppl. Resp.”),
CR 319–22, PR 324. First, Commerce explained that Eagle Industries initially stated
that it was affiliated with a Chinese plywood producer but did not source plywood from
that producer. Prelim. AFA Mem. at 6–7. Eagle Industries later, however, listed that
producer as a supplier, and GOV data indicated the same. Id. at 7. Second,
Commerce challenged Eagle Industries’ reporting of certain types of veneers as face
44 Commerce stated that its use of AFA was justified for the companies with “two or
more . . . failings” in their questionnaire responses. I&D Mem. at 140. Because the
court is remanding Commerce’s use of AFA for Lechenwood with respect to one of two
bases, Commerce must reconsider its use of AFA for this company. On remand, to the
extent Commerce continues to use AFA, Commerce may also reconsider its use of this
potentially arbitrary “two or more” metric, id., and, instead of using that metric, explain
why “none of the reported data is reliable or usable,” Zhejiang DunAn Hetian Metal Co.
v. United States, 652 F.3d 1333, 1348 (Fed. Cir. 2011). Any change in Commerce’s
approach to AFA must, however, be applied consistently to the respondents.
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veneers instead of core veneers. Id. at 7. 45 Commerce rejected Eagle Industries’
contention that these responses constituted corrections or modifications. I&D Mem. at
76–77.
While Commerce stated that the company-specific questionnaire for Eagle
Industries “addressed inconsistencies within the source documents provided by Eagle”
and thus provided notice of deficiencies, id. at 125, neither DH Plaintiffs nor the
Government meaningfully discuss Eagle Industries’ company-specific questionnaire,
see DH Pls.’ T2 Mem. at 11–23; Def.’s T2 Resp. at 17–22, 45–51. Instead, DH
Plaintiffs argue that Commerce failed to notify Eagle about the deficiencies found in
relation to the generic supplemental questionnaires. DH Pls.’ T2 Mem. at 15–23.
The point is well-taken. The company-specific questionnaire Commerce issued
to Eagle Industries did not provide notice of the deficiency that Commerce later used as
45 With respect to veneer type (i.e., face/back/core), Commerce appeared simply to
disagree with Eagle’s reporting rather than find a specific deficiency. See Prelim. AFA
Mem. at 7; I&D Mem. at 85. The issue raised with respect to Eagle appears to stem
from the fact that the scope of the Plywood Orders does not expressly distinguish
between a three-ply core platform exported to the United States (where additional
veneers may be added), and other hardwood plywood consisting of three plies. See
I&D Mem. at 84–85 (stating that Eagle “attempts to characterize its use of core veneer
imports as face and back veneers rather than core veneers because Eagle used them
as the outermost veneers” in subsequent exports to the United States). Relying on the
scope language, Commerce claimed that “a veneer cannot be a face or back veneer if it
is not attached to a core,” id. at 85 (emphasis omitted), but the scope also defines the
core in relation to “material(s) that are situated between the face and back veneers,” id.
at 6. To the extent Commerce found Eagle’s claims regarding veneer type to be
unsupported or warranting additional scrutiny based on ultimate use, Commerce should
have requested Eagle Industries to provide further documentation to support its
characterizations of veneer type before declaring those characterizations erroneous or
unreliable.
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the basis for AFA. Rather, Commerce issued Eagle a company-specific questionnaire
to obtain additional and clarifying information about the company’s first shipment to the
United States. [Eagle] Q&V Suppl. Questionnaire (June 29, 2021) at 1, Attach., CR
239, PR 277. Commerce inquired about a discrepancy in the bill of lading with respect
to the relationship between Eagle and two other entities and requested a different copy
of the bill of lading. Id. Commerce also identified a discrepancy between Eagle
Industries’ date of incorporation and the date of one of Eagle’s purchase orders. Id.
Eagle responded to the company-specific questionnaire on July 6, 2021, Eagle Indus.’
Resp. to the Q&V Suppl. Questionnaire (July 6, 2021), CR 249, PR 287, and to the
second supplemental questionnaire three days after that, Eagle 2nd Suppl.
Questionnaire Resp.
Because Eagle’s company-specific questionnaire (dated June 29, 2021) predates
Eagle’s response to the generic second supplemental questionnaire (dated July 9,
2021), the company-specific questionnaire did not provide notice of the discrepancies in
that July 9 response underlying Commerce’s use of AFA. See Prelim. AFA Mem. at 6–
7. Despite Commerce’s issuance of a company-specific questionnaire, in this case,
Eagle is in the same position as a respondent that received only the generic
supplemental questionnaires. Because the generic supplemental questionnaires failed
to provide notice of any deficiencies in Eagle’s responses, Commerce failed to comply
with 19 U.S.C. § 1677m(d) with respect to Eagle industries.
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v. 	Groll Ply & Cabinetry Ltd. (“Groll Ply”)
Commerce identified three discrepancies with respect to Groll Ply. First,
Commerce discussed Groll Ply’s seemingly contradictory reporting regarding its
affiliations with producers or exporters of plywood or plywood inputs in China,
highlighting one specific company. See Prelim. AFA Mem. at 11. Next, Commerce
identified discrepancies in Groll Ply’s reporting of its imports from China with respect to
date and HTS codes as compared to the GOV data. Id.46 Lastly, Commerce explained
that although Groll Ply reported consuming a certain species of domestically sourced
core veneer, the GOV data suggested that Groll Ply imported merchandise from China
that had “characteristics indicative of core veneers.” Id. at 11–12.
STR Plaintiffs argue that Commerce failed to comply with 19 U.S.C. § 1677m(d).
STR Pls.’ T2 Mem. at 35. The Government counters that “[n]otwithstanding practicality
concerns, given the discrepancies woven throughout Groll Ply’s questionnaire
responses, it was reasonable for Commerce to expect that issuing another
supplemental questionnaire would not resolve the discrepancies.” Def.’s T2 Resp. at
62.
The first company-specific questionnaire for Groll Ply addressed an
inconsistency between Groll Ply’s reported date of incorporation and the dates of certain
reported shipments. See [Groll Ply] Q&V Suppl. Questionnaire (Feb. 26, 2021), Attach.,
46 Commerce noted that Groll Ply reported importing inputs from China into Vietnam in
[[ 	]] but that the GOV data reflected entries also in [[ 	]]. Prelim. AFA
Mem. at 11.
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PR 159. Groll Ply responded that it had mistakenly reported its incorporation as April
2020, when the company was incorporated in April 2019. [Groll Ply] Submission of
Suppl. Q&V Resp. (Mar. 29, 2021) (“Groll Ply 1st Suppl. Resp.”), Attach. at 1, CR 221,
PR 238. Groll Ply’s second company-specific questionnaire identified “missing
information” and posed “additional questions about [Groll Ply’s] ownership.” I&D Mem.
at 125. In that second company-specific questionnaire, Commerce identified
documentation from a sale between a Groll Ply intermediary and a U.S. customer, then
sought information about an individual’s involvement with Groll Ply, documentation
associated with Groll Ply’s first shipment to the United States, and documentation from
Groll Ply’s subsequent four shipments to a certain U.S. customer. [Groll Ply] Q&V
Second Suppl. Questionnaire (June 15, 2021) (“Groll Ply 2nd Suppl. Questionnaire”),
Attach. I, CR 234, PR 259. 47 Groll Ply provided information about the person’s
involvement with the company and the requested documentation. See [Groll Ply]
Submission of Q&V Resp. (July 6, 2021) (“Groll Ply 2nd Suppl. Resp.”), Attachs. I–II,
CR 252, PR 290.
The company-specific questionnaires did not provide notice of the deficiencies
Commerce later relied on to use AFA. Regarding Commerce’s finding of discrepancies
with respect to Groll Ply’s reported affiliations in response to the First Supplemental
Questionnaire, while Groll Ply stated that it “is not affiliated with any producers or
exporters of plywood or plywood inputs in China,” Groll Ply 1st Suppl. Resp., Attach. II
47 Specifically, Commerce inquired about [[ 	]]. Groll Ply 2nd Suppl.
Questionnaire, Attach. I at 1.
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at 2, Groll Ply disclosed the name of the individual and company that formed the basis
for the discrepancy Commerce identified, id., Attach. II at 3; see also Prelim. AFA Mem.
at 11. 48 That individual, [[ 	]], is not the same individual, [[ 	]], that
Commerce requested Groll Ply to address in the second company-specific
questionnaire. Thus, while Commerce issued its second company-specific
questionnaire to Groll Ply in order to inquire about certain information in its first
supplemental questionnaire response, Commerce did not request further information
about [[ 	]]. See Groll Ply 2nd Suppl. Questionnaire, Attach. I. 49
Commerce’s two additional bases for using AFA, namely, inconsistencies with
GOV data regarding Groll Ply’s reporting of HTS codes, dates of importation, and the
types of veneers purchased by Groll Ply from China, see Prelim. AFA Mem. at 11–12,
were not among the deficiencies Commerce informed Groll Ply about in the company-
specific questionnaires. Additionally, the Government’s assertion that Commerce
48 In the First Supplemental Questionnaire, Commerce requested Groll Ply to state
whether it is “affiliated with . . . any Chinese individual that is affiliated with any Chinese
manufacturer and/or exporter of plywood or plywood inputs.” 1st Suppl. Questionnaire,
Attach. II at 2. While Groll Ply responded in the negative, it reported information about a
shareholder, [[ 	]], who [[
]]. Groll Ply
1st Suppl. Resp., Attach. II at 3. That company, [[ 	]], served as [[
]] the U.S. customer and Groll Ply on Groll Ply’s sales of hardwood plywood to
the United States. Id at 4. Groll Ply provided documentation identifying [[ 	]] as
the seller of Groll Ply’s first shipment to the United States and [[
]]. Id., Ex. 2. Groll Ply later provided evidence that [[ 	]] sold [[
]] to Groll Ply from China. See [Groll Ply] Re-Submission of Second Suppl. Q&V
Resp. (Aug. 6, 2021), Ex. 2, CR 387–88, PR 335.
49 Specifically, Commerce inquired about [[ 	]], Groll Ply 2nd Suppl.
Questionnaire, Attach. I, but not [[ 	]] or his company, [[
]], Groll Ply 1st Suppl. Resp., Attach. II at 3.
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reasonably declined to issue further questionnaires based on an expectation that any
responses would generate further discrepancies is unsupported by record evidence
because when Commerce informed Groll Ply about deficiencies, the company
addressed them. Accordingly, Commerce failed to comply with 19 U.S.C. § 1677m(d)
with respect to Groll Ply.
vi. 	Hai Hien Bamboo Wood Joint Stock Co. (“Hai Hien”)
Commerce cited two deficiencies to justify its use of AFA with respect to Hai
Hien. First, Commerce stated that, although Hai Hien asserted that it was not affiliated
with any Chinese producer or exporter, the record reflected otherwise. 50 Prelim. AFA
Mem. at 12; I&D Mem. at 93–94. Next, Commerce contested Hai Hien’s reporting of its
poplar veneers as face veneers based on data from the U.S. International Trade
Commission (“ITC”) about veneer thickness and wood species. Prelim. AFA Mem. at
12–13; I&D Mem. at 92–93.
In its company-specific questionnaire to Hai Hien, Commerce inquired about four
matters. First, Commerce sought additional information about one of Hai Hien’s
50 Commerce pointed to evidence placed on the record by the Coalition indicating that,
in 2017, [[
]]. Prelim. AFA Mem. at 12 &
n.103 (citing [Coalition] Cmts. on Certain Second Suppl. Q&V Questionnaire Resps.
(July 13, 2021), Ex. 3, CR 359, PR 346). This appeared to contradict Hai Hien’s
response to the company-specific questionnaire that [[
]], given that Hai Hien was reportedly incorporated in [[ 	]]. Prelim.
AFA Mem. at 12; Hai Hien’s Resp. to the General 2d SQ and Company-Specific Q&V
SQ (“Hai Hien Co-Specific Resp.”) (July 2, 2021) at 5, CR 242–44, PR 284.
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shareholders in relation to the company’s previous report that it was “not affiliated with
producers or exporters of plywood or plywood inputs in China in terms of common
ownership.” [Hai Hien] Q&V Suppl. Questionnaire (June 16, 2021) (“Hai Hien Suppl.
Questionnaire”), Attach., CR 237, PR 261. 51 Second, Commerce sought information
about investment capital that Hai Hien received from a plywood manufacturer in China
and a “Chinese investment representative of Hai Hien.” Id. Third, Commerce sought
information about the wood species of core, face, and back veneers and other details
about Hai Hien’s first shipment to the United States. Id. Finally, Commerce sought
clarification about the signatory on a certain sales contract. Id. On July 2, 2021, Hai
Hien responded to Commerce. Hai Hien Co-Specific Resp. Commerce, in defending
the company-specific questionnaire as sufficient notice of deficiency, explained that the
questionnaire addressed “inconsistent information about Hai Hien’s Chinese affiliates,
inconsistent information between the source documents provided by Hai Hien and the
narrative responses to Hai Hien’s June 16 Supplemental Response, and information
about one of Hai Hien’s representatives.” I&D Mem. at 125.
STR Plaintiffs argue that with respect to Hai Hien’s reporting regarding its
shareholder, any “misunderstanding could have been clarified” with an additional
questionnaire. STR Pls.’ T2 Mem. at 26–27. With respect to veneer type, they contend
51 Commerce requested additional information about [[ 	]]. Hai Hien Suppl.
Questionnaire, Attach. at 1.
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that “Commerce asked no questions and requested no documentation on the actual use
of the face veneers.” Id. at 28. 52
Commerce’s company-specific questionnaire afforded Hai Hien the opportunity to
provide additional information about the particular shareholder, [[ 	]]. Hai
Hien’s response, however, was unclear with respect to the company’s use of the term
“established.” 53
With respect to Commerce’s other basis for using AFA, Commerce’s company-
specific questionnaire inquired about wood species but not veneer type. Hai Hien
52 MG Plaintiffs adopt the arguments of others. MG Pls.’ T2 Mem. at 10. MG Plaintiffs
do not make additional arguments specific to Hai Hien but assert that for many
companies, including Hai Hien, the “Preliminary Determination served as the first notice”
of deficiencies. Id. at 9–10.
53 Commerce requested Hai Hien to report whether the shareholder “holds any positions
in, or owns any shares of any, Chinese producers or exporters of plywood or plywood
inputs.” Hai Hien Suppl. Questionnaire, Attach. at 1 (emphasis added). Because
Commerce’s question was phrased in the present tense, it would seemingly have been
accurate for Hai Hien to respond in the negative, because there is no indication that
[[ 	]] held any such positions as of the date of Hai Hien’s response. Instead,
Hai Hien reported that [[ 	]] has not held any such positions “[s]ince Hai Hien
was established.” Hai Hien Co-Specific Resp. at 5 (emphasis added). Commerce
understood that by “established,” Hai Hien intended to refer to its incorporation in
[[ 	]]. Prelim. AFA Mem. at 12. Hai Hien later argued that by “established” it meant
“restructured,” I&D Mem. at 93, which occurred in [[ 	]], [Hai Hien] Q&V
Questionnaire Resp. (Oct. 1, 2020), Attach. II at 2, CR 76–79, PR 106; see also Hai
Hien Case Br. (Jan. 10, 2023) at 3–4, CR 592, PR 752. But Commerce requested Hai
Hien to provide documentation to support its response about [[ 	]], where that
documentation, if so provided, could have shed light on Hai Hien’s response and what it
intended by the term “established.” Hai Hien Suppl. Questionnaire, Attach. at 1. Hai
Hien does not identify supporting documentation. See Hai Hien Co-Specific Resp. at 5.
Whether this ambiguity supports Commerce finding a failure to cooperate pertains to a
separate, but related, statutory consideration pursuant to 19 U.S.C. § 1677e(b)(1) that
the court need not reach at this time.
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Suppl. Questionnaire, Attach. 54 Accordingly, the company-specific questionnaire did
not provide notice of a deficiency for that issue. See Prelim. Mem. at 12–13 (discussing
concerns with Hai Hien’s reporting of veneer type). And while Hai Hien supplied the
information requested regarding plywood inputs in its response to the Q&V
questionnaire, Commerce rejected the characterization of its imported veneers as face
veneers, determining that they were core veneers, based on ITC data and information
that Commerce itself had previously collected. See id.; I&D Mem. at 92–93. 55 If
Commerce believed that this difference amounted to a deficiency, the agency should
have provided Hai Hien with a meaningful opportunity to respond. Absent such notice,
Commerce failed to meet the requirements of 19 U.S.C. § 1677m(d) with respect to Hai
Hien.
54 Regarding exhibits that Hai Hien provided in its March 8, 2021, first supplemental
Q&V response, the company-specific questionnaire requested Hai Hien to explain the
omission of poplar in its identification of species of veneer used in plywood cores as
well as documentation supporting the eucalyptus it used to produce plywood cores. Hai
Hien Suppl. Questionnaire, Attach. at 2.
55 Hai Hien reported that it used poplar face veneers imported from China to produce
plywood it exported to the United States. Prelim. AFA Mem. at 12. Commerce,
however, considered the thickness of the veneers to be indicative of core veneers. Id.
at 12–13. Commerce supported this characterization of veneer type with ITC data
showing that “poplar is one of the most common species used in core veneers by
Chinese plywood producers” and that “imported Chinese plywood rarely has face
veneers made of poplar.” Id. at 12. Commerce also previously found that
Dongfangjuxin used poplar for its core veneers, id., and records showed that core
veneers possess a thickness like that of Hai Hien’s poplar veneers, see I&D Mem. at
92–93.
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3. 	Conclusion Regarding 19 U.S.C. § 1677m(d)
The Government and the Coalition focus primarily on the number of
questionnaires Commerce issued. But section 1677m(d) implicates both the quantity
and quality of the questionnaires. The question before the court is whether Commerce
“promptly inform[ed]” the respondents of “the nature of the deficienc[ies]” and provided
them “with an opportunity to remedy or explain the deficiency in light of the [established]
time limits” or otherwise justified why it was not, at the time, practicable to do so. 19
U.S.C. § 1677m(d). For all respondents discussed above except Win Faith, Commerce
did not fulfill its obligations. Accordingly, for those companies for which Commerce
used AFA based on deficient (as distinct from non-existent) responses (aside from Win
Faith), Commerce’s circumvention determination must be remanded.
B. Failure to Cooperate
As mentioned above, Commerce “may use an inference that is adverse to the
interests of” a party if Commerce “finds that an interested party has failed to cooperate
by not acting to the best of its ability.” 19 U.S.C. § 1677e(b). “Compliance with the
‘best of its ability’ standard is determined by assessing whether respondent has put
forth its maximum effort to provide Commerce with full and complete answers to all
inquiries.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir. 2003).
“[T]he standard does not require perfection,” but “it does not condone inattentiveness,
carelessness, or inadequate record keeping.” Id.
Because Commerce’s use of AFA is subject to compliance with section
1677m(d), see 19 U.S.C. § 1677e(a), for the companies covered by the remand
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necessitated by the foregoing discussion, the court need not address the agency’s basis
for finding a failure to cooperate. Below, the court addresses arguments raised by
certain other companies about Commerce’s use of AFA based on their particular
circumstances.
1. 	Win Faith
Win Faith is the only company as to which Commerce used AFA based on
deficient questionnaire responses for which remand is not required pursuant to 19
U.S.C. § 1677m(d). As discussed above, Commerce applied AFA based on Win Faith’s
failures with respect to its reporting of affiliated hardwood plywood producers in China,
specifically, company A. 56 I&D Mem. at 102–03, 144. MG Plaintiffs contend that there
was no material gap in the record. MG Pls.’ T2 Mem. at 13. They further contend that
Win Faith provided evidence of Commerce’s own finding in the underlying antidumping
investigation that the affiliate is a trading company, evidence with which Commerce
failed to engage. Id. at 15.
The Government contends that there was a relevant gap in the record and
Commerce was not required to accept Win Faith’s reliance on the underlying
investigation because each segment of a proceeding has a different record. Def.’s T2
Resp. at 105–07. The Coalition contends that the issue is not whether company A is a
producer but whether company A, and therefore Win Faith, are affiliated with other
56 As described supra, note 41, company A is [[ 	]].
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Chinese plywood producers. Def.-Int.’s T2 Resp. at 56–58 (citing Prelim. AFA Mem. at
23).
MG Plaintiffs counter that the “applicable determination” is whether Win Faith
exported hardwood plywood to the United States with Chinese core veneers and that
affiliation is not relevant to this determination or, thus, a basis for AFA. MG Pls.’ T2
Reply at 14.
Commerce’s explanation for its use of AFA for Win Faith addresses two related
issues: whether company A is a plywood producer, and whether company A is affiliated
with other plywood producers in China. I&D Mem. at 102–103. While Commerce’s
findings regarding the latter issue are supported by substantial evidence, Commerce
failed to address evidence relevant to the first issue. Commerce’s determination to use
AFA for Win Faith will therefore be remanded.
Win Faith informed Commerce that company A is an affiliated trading company
and Chinese plywood exporter, i.e., not a producer. [Win Faith] Q&V Questionnaire
Resp. (Oct. 1, 2020), Attach. II at 5, CR 116, PR 116; [Win Faith] Q&V Suppl.
Questionnaire Resp. (Mar. 8, 2021) at 2, CR 174, PR 196; [Win Faith] Q&V Second
Suppl. Questionnaire (July 9, 2021) at 3, CR 313, PR 322. Win Faith explained that
Commerce determined that company A was a trading company in two prior
investigations, which established that the affiliate was found to be an exporter, not a
producer. [Win Faith] Rebuttal to Pet’r’s Cmts. on Q&V Questionnaire Resp. (Mar. 25,
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2021) at 2, CR 215, PR 231. 57 In discussing this issue, Commerce referred to its
preliminary determination, implying that Commerce had considered the investigations
and yet “found that Win Faith’s unsupported assertions did not overcome the record
evidence that supported the finding that Win Faith had a Chinese affiliate that produced
hardwood plywood.” I&D Mem. at 102. 58 Commerce’s preliminary decision
memorandum, however, does not address these prior investigations and, thus, failed to
address evidence relevant to the determinations as to whether company A is a plywood
producer, and, thus, whether Win Faith is affiliated with a plywood producer.
Also at issue was whether company A is itself affiliated with Chinese plywood
producers. See Prelim. AFA Mem. at 23; I&D Mem. at 102–03. Win Faith asserted,
without supporting evidence, that any advertised affiliations regarding company A and
plywood producers did not meet the definition of “affiliation” under Commerce’s
regulations. Win Faith Suppl. Resp. at 1–2. However, given the absence of evidence to
57 Win Faith cites to Certain Hardwood Plywood Products From the People’s Republic of
China, 82 Fed. Reg. 53,460, 53,466 (Dep’t Commerce Nov. 16, 2017) (final
determination of sales at less than fair value, and final affirmative determination of
critical circumstances, in part), and Hardwood and Decorative Plywood From the
People’s Republic of China, 78 Fed. Reg. 58,273 (Dep’t Commerce Sept. 23, 2013)
(final determination of sales at less than fair value).
58 In support, Commerce identified “[p]ublicly-available information indicat[ing] that
[[ 	]],” with whom Win Faith claimed affiliation, “is affiliated with [a] Chinese
plywood manufacturer.” Prelim. AFA Mem. at 23. Statements online further indicated
that [[ 	]] “has specialized in manufacturing and exporting wood panel products,
including plywood, for more than 20 years,” and that “[[ 	]] related group of
companies includes multiple plywood factories.” Id. The seller associated with Win
Faith’s first shipment of plywood to the United States during the inquiry period has an
email address ending in [[ 	]] and an address in the [[
]]. Id.
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support Win Faith’s position, Commerce reasonably found that Win Faith did not fully
cooperate with respect to the request for information regarding company A’s affiliations.
MG Plaintiffs’ assertion that information about affiliates is not relevant to the
“applicable determination,” which they define narrowly as whether Win Faith exported
hardwood plywood to the United States with Chinese core veneers, lacks merit. The
“applicable determination” is a determination pursuant to 19 U.S.C. § 1677j regarding
circumvention. See 19 U.S.C. § 1677e(a) (permitting Commerce to “use the facts
otherwise available in reaching the applicable determination under this subtitle”
(emphasis added)). 	Insofar as MG Plaintiffs intend to argue that information about
affiliates is not relevant to Win Faith’s production processes, that argument also fails as
undeveloped and contrary to Commerce’s discretion to decide what information the
agency needs to complete its inquiry. See, e.g., Ansaldo Componenti, S.p.A. v. United
States, 10 CIT 28, 37, 628 F. Supp. 198, 205 (1986) (“It is Commerce, not the
respondent, that determines what information is to be provided . . . .”). As Commerce
explained, “Commerce considers affiliations between respondents and the companies in
the country of the [Plywood] Orders to evaluate details like the likelihood of
circumvention, the ease of circumvention, sourcing capabilities, etc.” I&D Mem. at 140.
Commerce’s explanation is consistent with the anti-circumvention statute, which
includes affiliations among the considerations relevant to a circumvention finding. 19
U.S.C. § 1677j(b)(3)(B).
Commerce’s own reasoning, however, precludes the court from sustaining
Commerce’s overall use of AFA with respect to Win Faith. Commerce explained that
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“[i]t is the sum of two or more . . . failings that rendered the questionnaire responses
unreliable and warranted the application of AFA.” I&D Mem. at 140 (referring to the
companies to which Commerce applied AFA due to inconsistencies and discrepancies
in their questionnaire responses). In relation to Win Faith, Commerce discussed
deficiencies under the single heading of “Affiliation.” Id. at 102–03; see also Prelim AFA
Mem. at 23 (condensing Win Faith’s analysis into a single paragraph). Thus, it is
unclear whether Commerce considered Win Faith to have a single deficiency, or
multiple deficiencies relevant to this single area of inquiry. Because Commerce’s
determination regarding Win Faith’s deficient reporting is supported by substantial
evidence only in part, with respect to company A’s affiliations, and because Commerce
did not explain how it applied its own “two or more failings” standard for the use of AFA,
a remand is required for Commerce to reconsider its overall finding that Win Faith failed
to cooperate for purposes of 19 U.S.C. § 1677e(b)(1).
2. 	Cam Lam Joint Stock Company (“Cam Lam”)
Cam Lam is one of the companies that failed verification. Commerce determined
that the sales information Cam Lam attempted to submit at verification did not constitute
a minor correction to previously reported information. I&D Mem. at 147. Commerce
further determined that because such information was in Cam Lam’s possession and
should have been reported earlier, Cam Lam failed to cooperate to the best of its ability.
Id. at 150. “As AFA, [Commerce found] that Cam Lam had sales of inquiry merchandise
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during the inquiry period and that Cam Lam is ineligible to participate in the certification
program.” Id.
STR Plaintiffs contend that the corrections presented at verification were minor,
Commerce’s decision to end verification was unsupported by substantial evidence, and
the corrections presented were immaterial to the circumvention determination. STR
Pls.’ T2 Mem. at 28–31; STR Pls.’ T2 Reply at 14–16.
The Government contends that Cam Lam’s attempted corrections “amounted to
a near-wholesale revision of its Q&V data.” Def.’s T2 Resp. at 31; see also Def.-Int.’s
T2 Resp. at 22–24 (advancing similar arguments). The Government asserts that
Commerce reasonably concluded that the magnitude of the changes “call into question
the reliability of the entirety of Cam Lam’s reporting, including the species of veneers it
consumed, the suppliers of those veneers, the customers to whom it sold, and the
country of origin of the veneers.” Def.’s T2 Resp. at 33 (citing I&D Mem. at 150). Thus,
the Government contends, Commerce was within its discretion to end verification. Id. at
32.
Commerce’s determination to find the proposed corrections not minor, thus
ending verification and applying AFA, is supported by substantial evidence. As
Commerce explained:
[T]he quantity changes related to [Cam Lam’s] reported U.S. sales were
not limited to the month of July, despite Cam Lam’s explanation for the
changes largely resting on a change in that month and that being the only
month in which Cam Lam claimed reclassification of sales from U.S. to
third country. We also noted quantity changes of an unexpected
magnitude for a change to the conversion calculation from pieces to cubic
meters and for a company that should be very familiar with this type of
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conversion. Specifically, verifiers noted that the total reported U.S.
quantity was reduced by nearly 10 percent, and on a month-by-month
basis the changes ranged from an increase in more than 26 percent and a
decrease in more than 65 percent. Third country sales’ totals increased
from zero to over 11,400 cubic meters (m3) worth $4.6 million U.S. dollars
(USD), and domestic sales totals increased by 116 percent in volume
(5,565.12 m3 to 12,010.89 m3) and 79 percent in value ($2,761,711.84
USD to $4,949,904.40 USD).
I&D Mem. at 147 (quoting Verification of [Cam Lam] (Dec. 21, 2022) (“Cam Lam Ver.
Rep.”) at 3, CR 571, PR 689). STR Plaintiffs offer no explanation for why these
corrections should be considered minor and instead attack Commerce’s purported
decision not to allow Cam Lam to explain the corrections. STR Pls.’ T2 Mem. at 29–30.
However, the record indicates that when Commerce requested an explanation at
verification, Cam Lam officials could not provide one. Cam Lam Ver. Rep. at 3–4.
Commerce balances the “tension between finality and correct result” by accepting, at
verification, only minor corrections, those that remedy “minor mistakes in addition,
subtraction, or other arithmetic function, minor data entry mistakes, clerical errors
resulting from inaccurate copying, duplication, or the like, [or] minor classification
errors.” Goodluck India Ltd. v. United States, 11 F.4th 1335, 1342–43 (Fed. Cir. 2021)
(citations omitted) (alteration in original). Accepting the changes here “would have
impacted all of Cam Lam’s data.” I&D Mem. at 150. Commerce’s determinations that
the changes were not minor, that ending verification was appropriate, and that Cam
Lam failed to cooperate fully in responding to Commerce’s requests for information, are
supported by substantial evidence.
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3. 	Vietnam Zhongjia Wood Co. Ltd. (“Zhongjia”)
Zhongjia is another company that failed verification. Commerce found that
Zhongjia failed to “report all of the core veneers it purchased during the inquiry period,”
id. at 158, and failed to report one core veneer supplier (“company B”), 59 id. at 159. The
unreported core veneers consisted of kapok wood veneers, potentially with other
species of core veneers. 60 In the Second Supplemental Questionnaire, Commerce
requested “[a] complete list of all your Vietnamese suppliers of plywood or plywood
inputs.” 2nd Suppl. Questionnaire, Attach. II. Zhongjia did not report company B as
such a supplier. [Zhongjia] Second Suppl. Questionnaire [Resp.] (July 9, 2021)
(“Zhongjia 2nd Suppl. Resp.”) at 2, Ex. SQ2-3, CR 302, PR 318. At verification,
Zhongjia claimed that core veneers purchased from company B were not used for
plywood production but was unable to produce documentation to support that
statement. Verification of [Zhongjia] (Dec. 21, 2022) (“Zhongjia Ver. Rep.”) at 6, CR
566, PR 679. 61 Commerce’s verifiers “did not identify any kapok wood used to produce
plywood” in their “examination of Zhongjia’s records.” Id. In finding a failure to
59 The supplier is [[ 	]].
60 Commerce stated that “the core veneers [Zhongjia] purchased from this unreported
company included kapok wood veneers” I&D Mem. at 159 (emphases added), but did
not specify any other type of unreported wood veneers.
61 Zhongjia reported that “[company B] used to be a manufacturer at the same site
where Zhongjia is currently located” and that “Zhongjia purchased machinery, tools, and
veneers from [company B]” when company B went bankrupt and Zhongjia took over its
manufacturing site. Zhongjia Ver. Rep. at 6. Zhongjia reported using “the [[
]] from [company B] . . . [[ 	]] it purchased from
[company B], [[ 	]]”
and reported similar usage of the kapok wood veneers. Id.
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cooperate, Commerce stated that “[w]hether wood veneers are used to produce
hardwood plywood or plywood not sold to the United States does not negate the fact
that wood veneers are inputs used to produce plywood.” I&D Mem. at 159–60.
Commerce explained that verification is a spot check, and one error suggests the
presence of others. Id. at 160.
Commerce also faulted Zhongjia for failing to provide Quarter 1 (“Q1”) 2020
material input records. Id. at 161; id. at 163 (“[T]he majority of Zhongjia’s period of
inquiry sales occurred in Q1 2020,” and, thus, “the raw material inputs from that same
quarter were necessary for Commerce to verify Zhongjia’s reported information.”). As
AFA, Commerce found “that Zhongjia produced inquiry merchandise during the inquiry
period.” Id. at 165.
i. 	Unreported Inputs
DH Plaintiffs contend that Zhongjia did not report company B as a supplier
because Zhongjia understood the Second Supplemental Questionnaire to request
information about plywood or plywood input suppliers, and Zhongjia did not use the core
veneers it purchased from company B to make plywood. DH Pls.’ T2 Mem. at 79; see
also DH Pls.’ T2 Reply at 53. DH Plaintiffs further contend that “Zhongjia’s purchases
from [company B] consist of kapok wood veneers,” which are made from locally grown
timber and Commerce “did not identify any kapok wood used to produce plywood.” DH
Pls.’ T2 Mem. at 79–80 (quoting Zhongjia Ver. Rep. at 6). According to DH Plaintiffs,
Commerce’s statement that “Zhongjia did use some of its unreported hardwood
plywood veneer purchases to produce hardwood plywood,” I&D Mem. at 159, is
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unsupported by record evidence, DH Pls.’ T2 Mem. at 80. They further assert that
internal records regarding scrap consumption before the inquiry began were not
reasonably required to be kept under the objective showing of a failure to cooperate
required by Nippon Steel. Id. at 81; DH Pls.’ T2 Reply at 54.
The Government contends that Zhongjia was required to “report all Vietnamese
suppliers of plywood or plywood inputs regardless of whether the veneers were used to
produce hardwood plywood.” Def.’s T2 Resp. at 37. The Government reiterates
Commerce’s statement that “Zhongjia did use some of its unreported hardwood
plywood veneer purchases to produce hardwood plywood,” id. at 38 (quoting I&D Mem.
at 159), but also, somewhat inconsistently, that “[a]ll the record evidence shows is that
Zhongjia purchased kapok wood veneers, not what merchandise those veneers were
used to produce,” id. The Coalition advances similar arguments in support of
Commerce’s determination. Def.-Int.’s T2 Resp. at 58–61.
Commerce’s determination with respect to this issue is not supported by
substantial evidence. Commerce’s statement that “Zhongjia did use some of its
unreported hardwood plywood veneer purchases to produce hardwood plywood,” I&D
Mem. at 159, relies on a misinterpretation of one sentence in a rebuttal brief noting
Zhongjia’s response to a question by the verifiers asking “if Zhongjia purchased any
veneers from other companies that it did not report ‘whether or not the veneers were
used to produce plywood,’” id. at 159 n.818 (quoting Zhongjia Rebuttal Br. (Feb. 1,
2023) at 5, CR 607, PR 805). Unlike the question posed by the verifiers, Commerce’s
questionnaire requested a “complete list of all your Vietnamese suppliers of plywood or
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plywood inputs.” Zhongjia 2nd Suppl. Resp. at 2. Zhongjia listed none based on its
reasonable understanding that the question requested information about plywood input
suppliers. See DH Pls.’ T2 Mem. at 79 (citing Zhongjia Ver. Rep. at 6).
Commerce must “let the respondent know what information [Commerce] really
wants,” and may not fault a respondent “for failing to provide information beyond the
scope of the question that Commerce asked.” Baroque Timber, 766 F. Supp. 3d at
1314 (first quoting Ta Chen Stainless Steel Pipe v. United States, 23 CIT 804, 820,
1999 WL 1001194, at *13 (1999), then quoting Jinan Yipin Corp. v. United States, 31
CIT 1901, 1916, 526 F. Supp. 2d 1347, 1360–61 (2007)). Here, because Commerce
did not clearly request information about Vietnamese suppliers of veneers that were not
used as inputs in the production of plywood, Commerce’s determination that Zhongjia
erred in failing to report company B is not supported by substantial evidence.
ii. 	Q1 2020 Records
DH Plaintiffs contend that Zhongjia’s failure to have the Q1 2020 material input
purchase records available arose from Zhongjia’s accountant’s misunderstanding of the
verification agenda. DH Pls.’ T2 Mem. at 83. They further contend that Commerce
abused its discretion by not allowing Zhongjia time to retrieve the Q1 2020 records from
another location. Id. at 84–85; DH Pls.’ T2 Reply at 57–58. Lastly, they assert that
Commerce’s statement that it “was unable to review official records from 2019” is
incorrect. DH Pls.’ T2 Mem. at 85 (quoting I&D Mem. at 163).
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The Government contends that Commerce was not required to provide Zhongjia
with the additional time it need to produce the Q1 2020 records that it should have
prepared in advance for verification. Def.’s T2 Resp. at 40–42.
Commerce’s determination with respect to this issue is supported by substantial
evidence. Commerce’s verification agenda requested information from different
timeframes depending on the question. See Verification of Questionnaire Resps. (Oct.
7, 2022) at 9, PR 606. In one question, for example, Commerce requested that the
company provide sample documentation of its procedure for tracing the country of origin
of its wood inputs “for one sale in July 2019.” Zhongjia Ver. Rep. at 5. However, under
“Material Inputs,” Commerce did not specify 2019 records in stating that it would
“[r]eview the methodology used to determine that hardwood plywood inputs were, or
were not, purchased from, or originated from, the People’s Republic of China, including
(but not limited to): 1. Production records; 2. Material purchases and freight invoices; 3.
Material consumption charts/bills of material; 4. Lot Numbers.” Id. Commerce based its
request to inspect Q1 2020 records on this Material Inputs question. I&D Mem. at 161.
That Zhongjia claims to have misunderstood the questions is of no moment.
Moreover, Commerce explained that information from 2020 was particularly important
because “most” of Zhongjia’s “inquiry period sales actually occurred during Q1 2020”
and Zhongjia “only started using professional accounting software at the start of 2020.”
I&D Mem. at 163. Thus, there was all the more reason for Zhongjia to be prepared with
this information at verification, and Commerce did not abuse its ample discretion by
declining to extend verification for Zhongjia to retrieve the requested records.
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While the court sustains Commerce’s determination regarding Zhongjia’s failure
to produce the Q1 2020 records at verification, a remand is necessary for Commerce to
reconsider or explain further its decision to use AFA in light of the absence of
substantial evidence to support Commerce’s decision with respect to the unreported
inputs from company B. 62
4. 	TL Trung Viet Company Limited (“TL Trung”)
Because TL Trung declined to participate in verification the day before the
scheduled visit, Commerce found, as AFA, “that TL Trung . . . exported inquiry
merchandise during the inquiry period.” I&D Mem. at 167.
MG Plaintiffs contend that any adverse inference used against TL Trung must fail
because Commerce’s overall circumvention determination fails for the reasons stated in
their Tranche I brief regarding Commerce’s determination “that the process of assembly
or completion in . . . Vietnam was minor or insignificant.” MG Pls.’ T2 Mem. at 25. The
Government contends that Commerce’s use of AFA as to TL Trung should be
sustained. Def.’s T2 Resp. 44–45; see also Def.-Int.’s T2 Resp. at 54 (arguing the
same).
Commerce’s determination that TL Trung failed to cooperate is supported by
substantial evidence. Absent any alternative argument, Commerce’s determination
62 Commerce evaluated companies that failed verification differently from companies to
which it applied AFA for having at least two deficiencies. Oral Arg. 3:01:10–3:03:10;
see also I&D Mem. at 140 (explaining Commerce’s “two or more” failings standard with
respect to the companies that had deficient questionnaire responses, not with respect to
companies that failed verification).
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regarding TL Trung stands or falls on Commerce’s decision with respect to whether the
completion or assembly in Vietnam was minor or insignificant, an issue the court does
not yet reach. See infra, pages 81–82, 92–93.
5. 	Bao Yen MDF Joint Stock Company (“Bao Yen”) and Thang Long
Wood Panel Company Ltd (“Thang Long”)
Commerce applied AFA to Bao Yen and Thang Long because, although they
responded to the initial questionnaire, they did not respond to the First Supplemental
Questionnaire. 63 See I&D Mem. at 105–07. Commerce rejected Bao Yen’s explanation
of alleged third-party miscommunications. Id. at 105. Commerce also rejected Thang
Long’s explanation that the company erroneously believed it was not required to
respond and explained that the company was listed as a required respondent. Id. at
106–08.
MG Plaintiffs contend that Bao Yen and Thang Long acted to the best of their
abilities. MG Pls.’ T2 Mem. at 22. They assert that the failures arose from a
miscommunication with IKE Trading, which was responsible for representing the
companies’ interests in the proceeding, and the “reasonable” view that the companies
were excused from responding because they did not produce inquiry merchandise.
63 While Commerce and the parties discuss Bao Yen’s and Thang Long’s respective
failures to respond “to the supplemental Q&V questionnaires,” i.e., using the plural form,
I&D Mem. at 106; see also id. at 105 (“[W]e note that the supplemental questionnaires
listed both Bao Yen and Dong Tam as ‘Companies that are required to respond to this
supplemental questionnaire.’” (emphasis added)), only the First Supplemental
Questionnaire listed those companies as required respondents. See 1st Suppl.
Questionnaire, Attach. I; cf. 2nd Suppl. Questionnaire, Attach. I (not including either
company). Companies that did not respond to the First Supplemental Questionnaire did
not receive the second questionnaire. See Prelim. Mem. at 3–4.
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Id. at 23. According to Plaintiffs, Bao Yen’s and Thang Long’s failures were not
“particularly serious.” MG Pls.’ T2 Reply at 2 (quoting Oman Fasteners, LLC v. United
States, 125 F.4th 1068, 1087 (Fed. Cir. 2025)). They assert that applying AFA “led to
an inaccurate result” because Commerce assessed duties on non-subject merchandise.
Id. at 7.
The Government contends that any miscommunication or mistake about whether
a response was required does not excuse the failure to respond. Def.’s T2 Resp. at 28–
30. The Coalition supports Commerce’s determination. Def.-Int.’s T2 Resp. at 21–22.
Commerce’s determination is supported by substantial evidence. Bao Yen’s and
Thang Long’s reasons for not responding are not persuasive. The burden was on the
respondents to ensure their interests were protected throughout the inquiry, by
monitoring the agency docket, maintaining counsel as they had done originally, making
sure any third party allegedly responsible for representing their interests was doing so,
and promptly bringing any failures in that regard to Commerce’s attention. It was not
“reasonable” to conclude “that they were not required to respond to Commerce’s
supplemental questionnaires given that they did not produce plywood subject to
Commerce’s circumvention investigation,” MG Pls.’ T2 Mem. at 23, because their
responses were necessary to establish the relevant facts. Indeed, that excuse is at
odds with the argument that any non-response was the fault of IKE Trading. See id.
Contrary to Plaintiffs’ argument that the Oman Fasteners court raised the bar for
Commerce to use AFA only upon finding a “particularly serious failure to cooperate,”
MG Pls.’ T2 Reply at 2 (citation and emphasis omitted), this situation does not fall within
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the ambit of Oman Fasteners. There, the Federal Circuit used the phrase “serious
failure to cooperate” in connection with the court’s review of Commerce’s selection of
the highest possible dumping margin and compliance with section 1677e(d)(2)
regarding the agency’s “evaluation . . . of the situation that resulted in [Commerce] using
an adverse inference in selecting among the facts otherwise available.” Oman
Fasteners, 125 F.4th at 1086 (alteration in original) (emphasis omitted) (quoting 19
U.S.C. § 1677e(d)(2)). That situation is inapposite to the binary nature of Commerce’s
circumvention determination here. See, e.g., Max Fortune Indus. Co. v. United States,
37 CIT 549, 558 (2013) (observing that in a circumvention inquiry, unlike in an
antidumping investigation, “there is no calculation”) (internal quotation marks and
citation omitted). 64 In any event, MG Plaintiffs do not explain why a wholesale failure to
respond to a questionnaire is not a “serious failure to cooperate” even if that were the
relevant standard. Other arguments they present are equally lacking in merit. 65 See
MG Pls.’ T2 Reply at 3–7. Accordingly, Commerce’s determination that Bao Yen and
64 Oman Fasteners addressed this issue in the context of whether the public interest
factor supported a preliminary injunction barring the collection of cash deposits at the
assigned rate. 125 F.4th at 1085–88.
65 MG Plaintiffs argue that neither Bao Yen nor Thang Long had the “intent” not to
cooperate. MG Pls.’ T2 Reply at 4. However, “the statute does not contain an intent
element.” Nippon Steel, 337 F.3d at 1383. Additionally, they argue that Commerce’s
use of AFA “led to an inaccurate result whereby antidumping and countervailing duties
will be assessed against Bao Yen’s and Thang Long’s exports of non-subject
merchandise.” MG Pls.’ T2 Reply at 6. MG Plaintiffs’ characterizations merely
repackage their arguments against Commerce’s use of AFA and do not present
independent grounds for a remand. See id. at 7 (arguing that the record does not
“support such an inaccurate result when other [record] information . . . can fill any
alleged gap”).
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Thang Long did not cooperate to the best of their abilities is supported by substantial
evidence.
6. 	Conclusion Regarding Commerce’s Failure-to-Cooperate
Determinations
In sum, Commerce’s failure-to-cooperate determinations are supported by
substantial evidence with respect to Cam Lam, TL Trung, Bao Yen, and Thang Long.
Commerce’s determinations with respect to Win Faith and Zhongjia will be remanded.
The court now turns to Commerce’s use of adverse inferences when selecting from
among the facts available.
C. Selection of Adverse Facts Available
When Commerce determines that a respondent has failed to cooperate, any
adverse inference “may include reliance on information derived from--(A) the petition,
(B) a final determination in the investigation under this subtitle, (C) any previous review
under section 1675 of this title or determination under section 1675b of this title, or
(D) any other information placed on the record.” 19 U.S.C. § 1677e(b)(2). “Deriving
information requires a logical connection between the source, i.e., the record evidence,
and the result.” Jinko Solar Imp. and Exp. Co. v. United States, 49 CIT __, __, 789 F.
Supp. 3d 1275, 1288 (2025). Thus, Commerce must draw adverse inferences from the
factual record; neither subsection (a) nor (b) of section 1677e “relieves Commerce from
relying on some facts to make the requisite determinations to satisfy the [statutory]
elements.” Changzhou Trina Solar Energy Co. v. United States, 43 CIT __, __, 359 F.
Supp. 3d 1329, 1340 (2019) (emphasis added). Indeed, “[i]f Commerce could simply
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declare the statute satisfied without resorting to actual facts, Congress would have had
no need to provide potential sources of information for adverse inferences, as it did in
19 U.S.C. § 1677e(b)(2)(A)–(D).” Id. That is why “Commerce’s AFA determination
must be supported by substantial evidence.” Jindal Poly Films Ltd. of India v. United
States, 44 CIT __, __, 439 F. Supp. 3d 1354, 1361 (2020) (citing 19 U.S.C.
§ 1516a(b)(1)(B)(i)).
Plaintiffs argue that Commerce’s use of AFA here was unsupported by
substantial evidence. See, e.g., Greatriver’s T1 Mem. at 17. Plaintiffs argue that
Commerce relied on flawed evidence, specifically from the Finewood scope proceeding
and from the petitioner. See, e.g., DH Pls.’ T1 Mem. at 20–27. In highlighting these
flaws, Plaintiffs strike at a wider issue with Commerce’s application of AFA—that the
agency did not identify facts in the record upon which it based its adverse inferences.
While it is true that circumvention is effectively a binary choice (either it is or is
not occurring), see Max Fortune, 37 CIT at 559, an affirmative determination requires
certain statutory elements to be met, see 19 U.S.C. § 1677j. Among those elements is
the sale of merchandise that is of the “same class or kind” as merchandise subject to an
AD/CVD order and that is “completed or assembled” in Vietnam using certain Chinese
components, i.e., inquiry merchandise, here based on five production scenarios. I&D
Mem. at 11–12; see also 19 U.S.C. § 1677j(b)(1)(A)–(B) (enumerating the required
elements). The finding that the merchandise of the same class or kind was completed
or assembled from relevant Chinese components is, at least in part, a factual
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determination. Nevertheless, Commerce failed to support with substantial evidence the
factual bases for its adverse inferences used to support this most fundamental finding.
To recap, Commerce concluded, “as AFA,” that the AFA companies “are
producing inquiry merchandise and circumventing the [Plywood Orders].” I&D Mem. at
63; see also, e.g., Prelim. Mem. at 12. At oral argument, and as discussed at the
beginning of this section on AFA, the Government averred that Commerce’s use of AFA
is moot with respect to those companies permitted into the certification regime as a
result of AR5 and, relatedly, that Commerce’s AFA finding with respect to production of
inquiry merchandise logically followed, and is separate from, Commerce’s
circumvention finding. Oral Arg. 3:24:30–3:28:30. The Government likened
Commerce’s use of AFA to the agency’s CVD determinations, in which Commerce finds
evidence of a subsidy program and applies AFA to find that a particular company used
or benefitted from that program. Id. 3:25:30–3:27:30. The Government thus argued
that Commerce need not (and in fact acknowledged that Commerce did not) identify
specific facts to support its AFA findings with respect to the respondents’ production of
inquiry merchandise. Id. 3:28:20–3:30:30. That argument fails in this case.
Commerce’s circumvention finding for the Final Determination rested on its
Preliminary Determination with respect to two production scenarios and extended that
finding to the additional three production scenarios initially found to be in-scope. I&D
Mem. at 10–11. For completion or assembly, Commerce examined the production
scenarios relative to each other, and concluded that:
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[b]ecause production scenarios one, two, and three involve more
production in China . . . compared to production scenarios four and
five . . ., we find that this record information also supports finding that
hardwood plywood produced under scenarios one, two, and three
exported to the United States from Vietnam was assembled and
completed in Vietnam using Chinese-origin hardwood plywood inputs
(including face/back and/or core veneers).
Id. at 12. That discussion thus relates to the production scenarios as Commerce
defined them, and not to any direct or specific evidence of production by the
respondents. Moreover, Commerce’s preliminary finding on this statutory factor also
rested primarily, if not completely, on AFA.
For the Preliminary Determination, Commerce stated, “[a]s AFA,” that the 22
companies with deficient responses and the 14 non-responding companies “produced
and/or exported hardwood plywood under all of the five production scenarios that are
subject to these inquiries.” Prelim. Mem. at 12, 13–14. Further, under the heading
titled, “Completion of Merchandise in Another Foreign Country,” Commerce relied on
AFA to meet the statutory requirement. Id. at 18 (“As noted above, as AFA, we
preliminarily find that Vietnamese companies are completing hardwood plywood in
Vietnam under the aforementioned production scenarios.”). Commerce went on to state
that “[t]his preliminary finding is bolstered by data placed on the record by the
petitioner,” namely, trade data and a declaration. Id. at 18–19 (emphases added).
Commerce concluded that “[t]his general record evidence, in conjunction with our
preliminary AFA determination” supported the finding that “hardwood plywood that is
exported to the United States from Vietnam was assembled and completed in Vietnam
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using Chinese-origin hardwood plywood inputs (including face/back and/or core
veneers).” Id. at 19 (emphasis added).
Commerce approached its analysis backwards. Instead of using an adverse
inference when selecting from among the facts available and explaining the connection
“between the source . . . and the result,” Jinko Solar, 789 F. Supp. 3d at 1288,
Commerce drew an adverse conclusion (completion of inquiry merchandise) in order to
fulfill that statutory requirement and identified evidence the agency claims “bolstered”
the finding Commerce already made. It is unclear whether Commerce considered the
Coalition’s evidence, in the form of trade data and one declaration, sufficient on its own
to make an affirmative finding regarding the completion or assembly of inquiry
merchandise by each respondent subject to AFA. Moreover, it bears repeating that
insofar as Commerce relied on evidence submitted by the Coalition, as it relates to
circumvention, the Coalition’s request was limited to two production scenarios. Ruling
Req. at 21; see also Coalition’s May 12, 2020 Resp. at 2–5. While an agency finding of
circumvention with respect to two scenarios may have the same impact as one based
on five scenarios, it is for Commerce, in the first instance, to examine the evidence and
articulate a sound rationale for the breadth of its determination, both in terms of
production scenarios and the agency’s country-wide determination.
The Government seeks to analogize Commerce’s determination in this case to
the agency’s circumvention finding on carbon steel butt-weld pipe fittings. Oral Arg.
0:25:45–0:28:30 (referencing Commerce’s Issues and Decision Mem. for the Anti-
Circumvention Inquiry of the AD Order on Carbon Steel Butt-Weld Pipe Fittings from
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China, A-570-814 (June 14, 2019) (“China Butt-Weld Mem.”)). The attempted analogy
is inapposite. In that case, while all respondents initially reported no production of
inquiry merchandise, one respondent later revised its reporting. China Butt-Weld Mem.
at 10. Commerce also discovered, at verification, that another company had shipped
inquiry merchandise to the United States. Id. at 10–11. 66 Thus, in that case,
Commerce relied on a combination of direct evidence of production of inquiry
merchandise along with petitioner-provided evidence to establish the completion or
assembly statutory element. Id. at 14–15. In contrast, here, Commerce does not cite
any direct evidence of the respondents’ production of inquiry merchandise to fulfill the
statutory requirement. 67 Thus, the Government’s argument that the court should
essentially overlook any infirmities in Commerce’s use of AFA for the Final
Determination because Commerce otherwise adequately supported its circumvention
66 At oral argument, the Government also pointed to Commerce’s preliminary finding in
a circumvention inquiry (based on minor alterations) involving 1-hydroxyethylidene-1, 1-
diphosphonic acid from China. Oral Arg. 0:25:45–0:28:30. In that case, however,
Commerce issued questionnaires to 12 potential producers of inquiry merchandise and
received only one response from a Taiwanese exporter of inquiry merchandise that did
not involve production in China (as well as voluntary responses from two U.S.
importers). Prelim. Decision Mem. for Circumvention Inquiry on HEDP From China, A-
570-045, C-570-046 (May 5, 2025) at 2–3. The unique circumstances of this case
stand in stark contrast to Commerce’s HEDP circumvention inquiry because the vast
majority of respondents here responded to Commerce’s initial, supplemental, and, when
applicable, company-specific questionnaires and Commerce attempted to examine the
responses from all responding companies.
67 Commerce relied on documents from the Finewood scope proceeding for its minor or
insignificant analysis, see, e.g., I&D Mem. at 30; Prelim. Mem. at 19, not its completion
or assembly analysis. Thus, the Government’s contention at oral argument that the
Finewood documents support Commerce’s use of AFA to find production of inquiry
merchandise by other companies, Oral Arg. 0:18:30–0:23:00, 3:27:00–3:28:30, is
impermissibly post hoc.
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finding lacks merit. Commerce’s circumvention determination rests in part on
conjecture, which is not enough to meet the substantial evidence standard of review.
See, e.g., Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370, 1378
(Fed. Cir. 2013) (noting that Commerce determinations cannot be based on “mere
conjecture or supposition”).
The Government’s attempt to analogize Commerce’s use of AFA to an adverse
subsidy finding also fails. With respect to a CVD investigation, Commerce “shall” initiate
“whenever an interested party” files a petition “on behalf of an industry” that “alleges the
elements necessary for the imposition” of a countervailing duty and provides
“information reasonably available to the petitioner supporting those allegations.” 19
U.S.C. § 1671a(b)(1). Commerce decides whether to initiate an investigation based on
the “accuracy and adequacy of the evidence provided in the petition.” 19 C.F.R.
§ 351.203(b)(1); see also 19 U.S.C. § 1671a(c)(1)(A). In a CVD investigation, if
Commerce determines to use AFA based on nonparticipation or noncompliance by a
respondent, it may consider the information in the petition as a source of facts available
for an adverse inference. 19 U.S.C. § 1677e(b)(2)(A). Here, at least with respect to the
three production scenarios added by Commerce, there was no evidence from the
Coalition to support Commerce’s adverse inference. 68
68 Recall that Commerce acknowledged the speculative nature of these production
scenarios in its Initiation Notice. 85 Fed. Reg. at 36,531 n.12 (identifying the three
additional production scenarios with the caveat “should such production scenarios
exist”).
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The court well understands that respondents are in possession of the information
Commerce needs to evaluate whether circumvention is occurring. When respondents
withhold or fail to timely provide such necessary information or otherwise decline to
participate in a proceeding, Commerce is statutorily authorized to make an adverse
inference when relying upon the facts available. Moreover, the court is aware that after
an AD or CVD order is imposed, issues of circumvention and evasion may arise such
that the domestic industry, Commerce, and Customs become engaged in an exercise of
“Whack-A-Mole.” While that exercise is statutorily sanctioned, adherence to the
requirements of the statute ensures that legitimate market-driven supply shifts not
amounting to circumvention or evasion are not mistaken for a “mole.”
Accordingly, Commerce must reconsider its compliance with 19 U.S.C.
§ 1677m(d) for most of the AFA companies and its failure-to-cooperate determinations
survive only with respect to a few companies as discussed above. After remedying
those errors, Commerce must also reconsider its use of AFA pursuant to 19 U.S.C.
§ 1677e(b) and must reconsider its finding with respect to completion or assembly
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pursuant to 19 U.S.C. § 1677j(b)(1)(B). 69 Commerce’s reconsideration must also
address whether the record evidence continues to support a country-wide finding. 70
III. 	Commerce’s Rejection of New Factual Information
After Commerce issued the Preliminary Determination, various interested
parties—producers/exporters and U.S. importers—asked Commerce to accept new
factual information (“NFI”). Commerce declined to do so, largely en masse. I&D Mem.
at 55–63. Multiple Plaintiffs contend that Commerce abused its discretion by declining
to accept NFI. See Shelter Forest’s T1 Mem. at 7–16; Greatriver’s T1 Mem. at 22–24;
MG Pls.’ T1 Mem. at 16–28; STR Pls.’ T1 Mem. at 18–26. For the most part, the court
declines to address these arguments at this time. The information that the respondents
sought to submit allegedly is the type that they would have submitted if Commerce had
provided adequate notice of deficient questionnaire responses pursuant to 19 U.S.C.
69 The court’s remand for Commerce to reconsider the assembly or completion statutory
element is not based on the Tranche I arguments raised by DH Plaintiffs that conflate
sections 1677j(b)(1)(B) and (C) of the anticircumvention statute. DH Plaintiffs state:
The first question to resolve is therefore whether the manufacturing
processes in Vietnam, hypothetically using Chinese veneers, are mere
assembly or completion operations. Only if the answer is “yes” to this first
question does the second question arise as to whether the assembly or
completion is minor or insignificant.
DH Pls.’ T1 Mem. at 28 (emphases added). Section 1677j(b)(1)(B) does not qualify the
nature of the completion or assembly as “mere” or the like. In any event and as
discussed below, the court defers resolution of arguments about Commerce’s “minor or
insignificant” analysis pending Commerce’s remand redetermination.
70 As discussed below, the court declines to reach the Tranche I arguments addressing
the additional statutory criteria in section 1677j(b)(1)(C)–(E), (2)–(3), because the record
evidence available for Commerce to consider may change. For that reason, to the
extent those arguments remain relevant, parties should renew the arguments before the
agency to develop the record for judicial review.
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§ 1677m(d) and the court, as explained above, will remand Commerce’s determination
based on its non-compliance with section 1677m(d). In the event Commerce’s rejection
of NFI is not rendered moot by the agency’s compliance with section 1677m(d), parties
may renew those arguments, with specificity, following the agency’s redetermination.
Two companies, however, require specific attention. 71
A. Shelter Forest International Acquisition Inc. (“Shelter Forest”)
Shelter Forest is an importer, not a respondent, and is thus not covered by the
analysis above regarding 19 U.S.C. § 1677m(d). Therefore, the court considers Shelter
Forest’s arguments regarding the rejection of its NFI.
At the administrative level, Shelter Forest argued that good cause supported
acceptance of untimely NFI because Shelter Forest’s information would show that its
supplier, Lechenwood, shipped only hardwood plywood without Chinese cores. I&D
Mem. at 57. Shelter Forest further argued that it did not believe it needed to participate
in the circumvention inquiry before the Preliminary Determination both because Shelter
Forest thought Lechenwood was adequately responding and because Shelter Forest
did not believe the inquiry covered its imported merchandise. Id. Commerce rejected
those arguments. Id. Commerce explained that Lechenwood, as the respondent, “was
required to respond to Commerce’s requests for information, and a U.S. importer [i.e.,
71 Greatriver argues that Commerce’s rejection of its NFI was “especially egregious”
because Greatriver was selected for verification, which Commerce then canceled the
day before. Greatriver’s T1 Mem. at 23–24. Because Greatriver is among the
companies covered by the court’s remand on 19 U.S.C. § 1677m(d), for the reason
discussed above, the court does not address the circumstances surrounding
Commerce’s rejection of that company’s NFI.
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Shelter Forest] cannot provide Commerce with a complete picture of a respondent’s
production practices, nor can it cure a respondent’s failures to provide reliable
information.” Id. Commerce further stated that information provided by one U.S.
importer for that respondent is insufficient to alleviate the agency’s concerns about the
reliability of the respondent-provided information and the respondent’s ability to
“accurately certify its merchandise.” Id. Commerce also stated that the agency is not
responsible for Shelter Forest’s decision not to participate earlier in the proceeding; the
Initiation Notice alerted Shelter Forest to the circumvention inquiry, parties had notice
that the certification regime covered non-inquiry merchandise, and any need for
Commerce to resort to AFA would preclude those companies from participating in the
certification regime. Id. at 57–58.
Before the court, Shelter Forest contends that it was diligent in proffering
information relevant to Lechenwood and that Commerce’s reasons for rejecting its
submission are not persuasive. Shelter Forest’s T1 Mem. at 15–19. 72 The Government
argues that Commerce permissibly rejected the untimely NFI because Shelter Forest’s
72 Shelter Forest also argues that the Preliminary Determination constituted factual
information that Shelter Forest had the right to rebut. Shelter Forest’s T1 Mem. at 15
n.2; see also Shelter Forest’s T1 Reply at 11. Arguments such as this that are not
properly developed—including arguments minimally raised in a footnote or in a reply
brief—are generally forfeited. See, e.g., Fuji Photo Film Co. v. Jazz Photo Corp., 394
F.3d 1368, 1375 n.4 (Fed. Cir. 2005). In any case, the court agrees with the
Government’s argument that Commerce’s preliminary analysis of the record was not
new evidence, statements of fact, documents, or data that is rebuttable pursuant to 19
C.F.R. § 351.102(b)(21)(iv). See Def.’s T1 Resp. at 54.
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reasons for its dilatory attempt to submit the information were not persuasive. Def.’s T1
Resp. at 54–56; see also Def.-Int.’s T1 Resp. at 31–33 (advancing similar arguments).
Commerce reasonably rejected Shelter Forest’s submission. Shelter Forest was
on notice of the circumvention inquiry and could have participated in the proceeding
prior to the Preliminary Determination. I&D Mem. at 57. It is simply not the case that
Shelter Forest had no earlier opportunity to address issues with its exporter’s
responses. See Shelter Forest’s T1 Reply at 5 (arguing to the contrary). Shelter Forest
could have entered an appearance at any time and filed submissions from the outset of
the inquiry. Shelter Forest’s argument that Commerce effectively required Shelter
Forest to be alert to potential deficiencies in Lechenwood’s submissions, see Shelter
Forest’s T1 Reply at 9, is not persuasive. As it turns out, Shelter Forest must accept the
consequences of its decision to rely upon Lechenwood to represent its interests when
nothing prevented Shelter Forest from participating in a timely manner, even if only to
provide potentially duplicative information.
Moreover, as Commerce explained, information from one U.S. importer cannot
cure an exporter’s failure to “provide Commerce with a complete picture of [that
exporter’s] production practices.” I&D Mem. at 57. A respondent’s alleged failure to
provide information requested across multiple questionnaires is not “good cause” for an
importer to decide belatedly to participate. Therefore, Commerce’s determination that
Shelter Forest failed to meet the good cause standard is supported by substantial
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evidence, and Commerce did not abuse its discretion in rejecting Shelter Forest’s
untimely NFI. 73
B. Win Faith
Because, as explained above, the court concludes that Commerce provided Win
Faith with notice of deficiencies pursuant to 19 U.S.C. § 1677m(d), the arguments
surrounding the agency’s rejection of Win Faith’s NFI remain ripe for review
notwithstanding the remand for other aspects of Commerce’s AFA determination.
During the circumvention inquiry, Win Faith filed ministerial error comments, with
NFI redacted, urging Commerce to issue a post-preliminary questionnaire to permit the
company to fill the identified evidentiary gaps. Win Faith Refiling of Ministerial Error
Cmts. (Sept. 29, 2022), Attach. 1 at 2, 6–7, CR 451, PR 578. Win Faith also attempted
to submit a factual “rebuttal” to the Preliminary Determination, which Commerce
rejected. Win Faith Rebuttal to the Dep’t’s Prelim. Determination (Sept. 21, 2022), CR
447, PR 562; Rejection of Win Faith’s Submission (Nov. 29, 2022), PR 661. MG
Plaintiffs challenge that rejection. MG Pls.’ T1 Mem. at 7–8, 21–24.
Commerce based its rejection of untimely NFI, including Win Faith’s
submissions, on the burden of considering a large amount of post-preliminary
73 In fact, good cause is not the regulatory standard; untimely extension requests
require extraordinary circumstances. 19 C.F.R. § 351.302(c). Shelter Forest has not
attempted to address the extraordinary circumstances standard, but at the same time,
Commerce did not appear to apply that heightened standard. See I&D Mem. at 58
(“Shelter Forest has not presented any good cause for Commerce to accept its untimely
post-preliminary NFI.”). Because Commerce’s determination that Shelter Forest failed
to meet the good-cause standard is supported by substantial evidence, any
discrepancies between the standards are harmless error and need not be addressed.
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information. See I&D Mem. at 58–59, 62–63. As such, Commerce’s decision with
respect to Win Faith is dependent upon and interconnected with its decision as to
multiple other respondents. Accordingly, because Commerce’s determination as to
those respondents is being remanded and there is no basis for the court to distinguish
Win Faith, the court remands Commerce’s rejection of Win Faith’s NFI as well.
Commerce may further explain its determination with respect to Win Faith or reconsider
that determination if the agency finds that reopening the record regarding Win Faith is
appropriate, particularly insofar as Commerce must reopen the record for other
respondents to comply with 19 U.S.C. § 1677m(d), and insofar as Win Faith’s
information may be relevant to Commerce’s reconsideration of the factual basis for a
country-wide circumvention finding.
IV. 	Expansion of Scope and Certification Regime
Several Plaintiffs raise arguments regarding the inclusion of inquiry merchandise
in the scope of the Plywood Orders and Commerce’s establishment of a certification
regime. These arguments will not be affected by further record development on
remand; thus, the court resolves the arguments now.
DH Plaintiffs argue that Commerce expanded the scope of the Plywood Orders
because “the ITC did not respond to Commerce’s belated notification” and the ITC
found no injury from Chinese core veneers. DH Pls.’ T1 Mem. at 39. MG Plaintiffs
direct their scope-expansion arguments to the certification regime, arguing that
“Commerce abused its discretion in implementing a certification regime and issuing
customs instructions that covered [so-called] safe harbor merchandise.” MG Pls.’ T1
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Mem. at 35. By “safe harbor merchandise,” MG Plaintiffs refer to “core veneers fully
produced in Vietnam or a third-country that are assembled into a veneer core platform
in Vietnam and combined with a face and back veneer produced in China.” Id. at 34
(quoting Initiation Clarification Mem. at 2). STR Plaintiffs advance similar arguments.
See STR Pls.’ T1 Mem. at 7–10. They further contend that “Commerce’s Preliminary
Determination and CBP instructions resulted in the assessment of AD and CVD duties
on merchandise expressly deemed not subject to these inquiries.” Id. at 10. 74
The Government contends that DH Plaintiffs misunderstand the nature of a
circumvention finding, which is that merchandise found to be circumventing is within the
scope of an existing order and is not an expansion of an order. Def.’s T1 Resp. at 37;
see also Def.-Int.’s T1 Resp. at 33–34 (advancing similar arguments). The Government
further contends that Commerce nowhere used the phrase “safe harbor merchandise” in
the Initiation Clarification Memorandum or elsewhere. Def.’s T1 Resp. at 62–63. The
Government argues that Commerce’s certification regime in this case is standard
practice when “inquiry merchandise . . . is indistinguishable on its face from non-inquiry
merchandise at [the time of] entry.” Id. at 63. Accordingly, the Government argues,
Plaintiffs misunderstand the purpose of the Initiation Clarification Memorandum because
it did not operate to exempt non-inquiry merchandise from the certification regime. Id.;
see also Def.-Int.’s T1 Resp. at 34–37.
74 In its Tranche II brief, Shelter Forest also purports to challenge Commerce’s
exclusion of Lechenwood from the certification regime. Shelter Forest’s T2 Mem. at 23.
What follows, however, are arguments regarding Commerce’s use of AFA and rejection
of Shelter Forest’s NFI, id. at 23–28, which the court has already addressed.
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In reply, MG Plaintiffs urge the court to reject the Government’s and the
Coalition’s arguments about the certification regime because the “[h]ardwood plywood
subject to Commerce’s affirmative circumvention findings . . . are physically
distinguishable from safe harbor merchandise by the naked eye.” MG Pls.’ T1 Reply at
15 (citing Case Br. (Jan. 9, 2023) (“Importers’ Case Br.”) at 39, CR 586, PR 746). STR
Plaintiffs contend that Commerce’s procedures are insufficient to alleviate due process
concerns or allow retroactive certification. STR Pls.’ T1 Reply at 9–10. 75
Concerns about scope expansion are misplaced. “Commerce’s consideration of
certain types of articles within the scope of an order” pursuant to a lawful circumvention
inquiry “will be a proper clarification or interpretation of the order instead of improper
expansion or change even where these products do not fall within the order’s literal
scope.” Wheatland Tube Co. v. United States, 161 F.3d 1365, 1370 (Fed. Cir. 1998)
(citing 19 U.S.C. § 1677j). Additionally, while 19 U.S.C. § 1677j(e) directs Commerce to
“notify the [ITC] of the proposed inclusion of such merchandise in such countervailing or
antidumping order or finding,” the statute allows, but does not require, the ITC to
thereafter “request consultations with [Commerce].”
Plaintiffs’ arguments about Commerce’s certification regime also lack merit. As
discussed above, Commerce implemented a certification program allowing certain
companies to certify that hardwood plywood exported from Vietnam to the United States
does not consist of inquiry merchandise. Prelim. Mem. at 27–28; I&D Mem. at 171.
75 DH Plaintiffs did not address this issue in their reply brief.
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Such entries are not subject to the Plywood Orders or the requirement to pay cash
deposits. Prelim. Mem. at 27–28. The AFA companies are not eligible to participate in
the certification program. Id. at 27. They must instead make cash deposits pending a
subsequent review in which Commerce may find the companies eligible to certify if they
adequately demonstrate they did not ship subject merchandise. See I&D Mem. at 186–
87. Accordingly, Commerce issued instructions to CBP implementing this regime.
Message No. 3215402.
This is not an improper duty assessment. “Final duty liability typically is
determined in an administrative review of an order pursuant to 19 U.S.C. § 1675(a)(1).”
Comm. Overseeing Action for Lumber Int’l Trade Investigations or Negots. v. United
States, 43 CIT __, __, 393 F. Supp. 3d 1271, 1274 (2019) (explaining distinctions
between cash-deposit rates and assessment rates). Consistent with this process,
Commerce has expanded, and stated it will continue to expand, the period of review for
subsequent administrative reviews to determine the correct assessment rate for entries
pursuant to the circumvention inquiry. See Certain Hardwood Plywood Prods. From the
People’s Republic of China, 90 Fed. Reg. 21,271 (Dep’t Commerce May 19, 2025) (final
results of the admin. revs. of the [AD] and [CVD] orders, final determination of no
shipments; 2021–2022) (“AR5 Final Results”); AR5 Decision Mem. at 68. Commerce
also has allowed the AFA companies an opportunity to demonstrate eligibility for the
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Consol. Court No. 23-00144 	Page 91
certification regime in these subsequent reviews. See AR5 Final Results, 90 Fed. Reg.
at 21,272. 76 Accordingly, these scope and certification arguments lack merit.
V. 	Voluntary Remand
STR Plaintiffs argue that Commerce failed to provide appropriate instructions to
Customs. STR Pls.’ T1 Mem. at 29–31. In the Final Determination, Commerce
declined to apply AFA to An An Plywood Joint Stock Company (“An An”) and
Greatwood Hung Yen Joint Stock Company (“Greatwood”). I&D Mem. at 75–76. In its
instructions to CBP, Commerce noted that the two companies were eligible for
certification, but, according to STR Plaintiffs, did not address the suspension of
liquidation imposed at the preliminary stage or the return of cash deposits. STR Pls.’ T1
Mem. at 29–30. On this issue, the Government requests a voluntary remand, without
confessing error, to reconsider its position, noting that the “instructions did not address
An An and Greatwood’s entries for the period from initiation to the final determination.”
Def.’s T1 Resp. at 67–68.
An agency may “request a remand (without confessing error) in order to
reconsider its previous position” and “the reviewing court has discretion over whether to
76 There appears to be no merit to the argument that Commerce’s certification regime
forces U.S. importers to declare “safe harbor” merchandise as subject merchandise.
Commerce’s Initiation Clarification Memorandum addressed what is inquiry
merchandise—not how non-inquiry (and thus non-subject) merchandise shipped by
non-certification-eligible companies would be treated in any certification program.
Initiation Clarification Mem. at 2. Further, nothing in the record indicates that non-
inquiry merchandise is ascertainable by “the naked eye.” MG Plaintiffs rely solely on a
citation to an administrative case brief that, in turn, lacks citation to any facts of record.
Importers’ Case Br. at 39.
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Consol. Court No. 23-00144 	Page 92
remand.” SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001)
(citations omitted). The court may grant a request for a voluntary remand “if the
agency’s concern is substantial and legitimate,” id., meaning that the agency “has a
compelling justification,” finality concerns “do[] not outweigh that justification,” and “the
scope of the request is appropriate,” Changzhou Hawd Flooring Co. v. United States, 38
CIT 1175, 1178, 6 F. Supp. 3d 1358, 1361 (2014) (citations omitted). The court agrees
that a remand is appropriate for Commerce to reconsider its instructions to CBP with
respect to An An and Greatwood.
VI. 	Remaining Arguments
As detailed above, this case proceeded with two rounds of briefing generally
divided into certain procedural or evidentiary matters (Tranche I) and adverse facts
available and related considerations (Tranche II). But as discussed herein, the issues
are not so neatly divided. While some of Plaintiffs’ Tranche I arguments are readily
dismissed, the court finds that several of Plaintiffs’ Tranche II arguments have merit and
require Commerce’s reconsideration of its affirmative country-wide determination. And,
when appropriate, the court has attempted to narrow the matters that remain
unaddressed prior to Commerce’s remand proceeding. This remand obviates, for now,
the need to address some of Plaintiffs’ Tranche I arguments relevant to the additional
circumvention statutory criteria.
Those arguments relate primarily to Commerce’s analysis under 19 U.S.C.
§ 1677j(b)(1)(C)–(E) and (b)(2)–(3). For example, Plaintiffs challenge Commerce’s
weighing of certain evidence, namely, a petitioner-provided declaration and documents
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from the Finewood scope proceeding; Commerce’s consideration of the forestry
industry as part of plywood production in Vietnam; and the agency’s analysis of the
patterns of trade. Because the nature of the administrative record may change on
remand, and thus so too Commerce’s weighing of all relevant evidence, the court
declines to consider these arguments at this time.
The court also declines to consider Plaintiffs’ various arguments grounded in the
meaning of certain statutory phrases, including completion or assembly, and minor or
insignificant, and whether Commerce’s methodologies underlying those determinations
are consistent with the statutory terms. Parties may renew such arguments during the
remand proceeding, as appropriate, and, while accounting for any changes as a result
of the remand, when Commerce’s determination returns to the court.
CONCLUSION AND O RDER
In accordance with the foregoing, it is hereby
ORDERED that Commerce’s Final Determination is remanded to the agency for
reconsideration consistent with this opinion; it is further
ORDERED that Commerce shall file its remand redetermination on or before
June 29, 2026; it is further
ORDERED that, given the amount of time taken to conduct the circumvention
inquiry in the first instance and the subsequent briefing and decision on the numerous
challenges to the Final Determination, Commerce may consider whether its resolution
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Consol. Court No. 23-00144 	Page 94
of the issues on remand would be facilitated by the incorporation of evidence from
subsequent administrative reviews into the record of this inquiry; it is further
ORDERED that, upon completion of the remand, the parties shall further consult
and, within 14 days, submit a joint proposal to the court to govern further proceedings,
including deadlines for briefing and the joint appendix and appropriate word limits that
take account of the extensive briefing already submitted.
/s/ 	Mark A. Barnett
Mark A. Barnett, Chief Judge
Dated: January 28, 2026
New York, New York
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Consol. Court No. 23-00144 	Page 95
APPENDIX A – Parties77
Parties 	Short Name
Shelter Forest International Acquisition, Inc. 	Shelter Forest
American Woodmark Corporation, Del Valle Kahman
& Company, Ike Trading Company Limited, Pittsburgh
Forest Products, Panoply Wood Products USA Inc.,
American Pacific Plywood, Inc., Eagle Industries
Company Limited, Golden Bridge Industries Pte. Ltd.,
Lechenwood Viet Nam Company Limited, Arrow
Forest International Co., Ltd., Her Hui Wood (Vietnam)
Co., Vietnam Zhongjia Wood Company Limited, Long
LUU Plywood Production Co., Ltd., and TEKCOM
Corporation
DH Plaintiffs 78
Greatriver Wood Co., Ltd., a.k.a. Cong Ty TNHH
Greatriver Wood or Greatriver Wood Company Limited
Greatriver
Tumac Lumber Co., Inc. 	Tumac
Concannon Lumber Company, Northwest Hardwoods,
Inc., Richmond International Forest Products LLC,
Taraca Pacific Inc., UFP International, LLC, Medallion
Forest Products, Hardwoods Specialty Products
USLP, Paxton Hardwoods LLC, and Rugby Holdings
LLC d/b/a Rugby Architectural Building Products
MG Plaintiffs
Cabinetworks Group, Inc. f/k/a ACProducts, Inc., ACPI
Wood Products, LLC, Cabinetworks Group
Middlefield, LLC, Cabinetworks Group Michigan, LLC,
Boise Cascade Building Materials Distribution LLC,
and USPLY LLC
STR Plaintiffs
Coalition for Fair Trade in Hardwood Plywood 	Coalition
United States (representing the U.S. Department of
Commerce)
Defendant or the
Government
77 For consistency and ease of reference, the court uses the same firm-based naming
conventions for groups of plaintiffs that are used by the parties in their respective briefs.
78 After all briefs were filed, counsel for DH Plaintiffs joined The Inter-Global Trade Law
Group PLLC.
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APPENDIX B – Tranche I Briefs79
Filing 	Short Name
Consol. Pls. Mot. for J. on the Agency R. and
Consol. Pls. [DH Pls.] Rule 56.2 Mem. in Supp. of
Mot. for J. Upon the Agency R., ECF No. 31
DH Pls.’ T1 Mem.
Mot. For J. on the Agency R. and [Shelter Forest]
Rule 56.2 Mem. in Supp. of Mot. for J. on the
Agency R., ECF No. 32
Shelter Forest’s T1 Mem.
[Greatriver] Rule 56.2 Mot. for J. on the Agency R.
and [Greatriver] Mem. in Supp. of Rule 56.2 Mot. for
J. on the Agency R., ECF No. 33
Greatriver’s T1 Mem.
Consol. Pl. [Tumac] Br. in Supp. of Rule 56.2 Mot.
for J. on the Agency R., ECF No. 34
Tumac’s T1 Mem.
Confid. Rule 56.2 Mot. for J. on the Agency R. on
Behalf of Consol. Pls. [MG Pls.] and Mem. of P. & A.
in Supp. of Mot. for J. on the Agency R., ECF No.
35
MG Pls.’ T1 Mem.
Consol. Pls. [STR Pls.] Rule 56.2 Mot. for J. on the
Agency R. and Mem. of P. & A. in Supp. of R. 56.2
Mot. for J. on the Agency R., ECF No. 37
STR Pls.’ T1 Mem.
Def.’s Resp. to Pls.’ Rule 56.2 Mots. for J. on the
Agency R., ECF No. 59
Def.’s T1 Resp.
Confid. Def.-Int. [Coalition] Resp. to Mot. for J. on
the Agency R., ECF No. 62
Def.-Int.’s T1 Resp.
Consol. Pls. [DH Pls.] Reply Br., ECF No. 71 	DH Pls.’ T1 Reply
[Greatriver] Reply in Supp. of Rule 56.2 Mot. for J.
on the Agency R., ECF No. 72
Greatriver’s T1 Reply
Pl. Shelter Forest’s Tranche I Reply Br. in Supp. of
Mot. for J. on the Agency R., ECF No. 73
Shelter Forest’s T1 Reply
79 The appendices do not include errata that were granted without physical substitution.
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Consol. Court No. 23-00144 	Page 97
Consol. Pls. [Tumac] Br. in Supp. of Reply Br. Filed
by Consol. Pls., ECF No. 74
Tumac’s T1 Reply
Confid. Reply Br. on Behalf of Consol. Pls. [MG
Pls.], ECF No. 75
MG Pls.’ T1 Reply
[STR Pls.] Reply Br., ECF No. 77 	STR Pls.’ T1 Reply
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APPENDIX C – Tranche II Briefs
Filing 	Short Name
[STR Pls.] Tranche 2 Rule 56.2 Mot. for J. on the
Agency R. and Mem. of P. & A. in Supp. of its Rule
56.2 Mot. for J. on the Agency R., ECF No. 39
STR Pls.’ T2 Mem.
Confid. Consol. Pls. Mot. for J. on the Agency R.
and Consol. Pls. [DH Pls.] Rule 56.2 Mem. in Supp.
of Mot. for J. Upon the Agency R., ECF No. 48
DH Pls.’ T2 Mem.
Confid. [Greatriver] Rule 56.2 Mot. for J. on the
Agency R. and [Greatriver] Mem. in Supp. of Mot.
for J. on the Agency R., ECF No. 52
Greatriver’s T2 Mem.
Consol. Pl. [Tumac] Br. in Supp. of Rule 56.2 Mot.
for J. on the Agency R., ECF No. 53
Tumac’s T2 Mem.
Mot. for J. on Agency R. and Pl. Shelter Forest’s
Tranche II Rule 56.2 Mem. in Supp. of Mot. for J. on
the Agency R., ECF No. 54
Shelter Forest’s T2 Mem.
Confid. Rule 56.2 Tranche II Mot. for J. on the
Agency R. of [MG Pls.] and Mem. of P. & A. in
Supp. of Rule 56.2 Tranche II Mot. for J. on the
Agency R. of Consol. Pls. [MG Pls.], ECF No. 55
MG Pls.’ T2 Mem.
Confid. Def.’s Resp. to Pls.’ and Consol. Pls.’ Rule
56.2 Mots. for J. on the Agency R., ECF No. 68
Def.’s T2 Resp.
Confid. Def.-Int. [Coalition] Resp. to Mot. for J. on
the Agency R., ECF No. 85
Def-Int.’s T2 Resp.
[STR Pls.] Tranche II Reply Br., ECF No. 99 	STR Pls.’ T2 Reply
Confid. [DH Pls.] Tranche II Reply Br., ECF No. 101 	DH Pls.’ T2 Reply
Confid. [Greatriver] Tranche II Reply Br. in Supp. of
Rule 56.2 Mot. for J. on the Agency R., ECF No.
105
Greatriver’s T2 Reply
Confid. Tranche II Reply Br. on behalf of [MG Pls.],
ECF No. 106
MG Pls.’ T2 Reply
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Consol. Pls. Brief in Supp. of Reply Br. Filed by
Consol. Pls. [Tumac], ECF No. 108
Tumac’s T2 Reply
Pl. Shelter Forest’s Tranche II Reply Br., ECF No.
109
Shelter Forest’s T2 Reply
Case 1:23-cv-00144-MAB Document 156 Filed 02/13/26 Page 99 of 99