Shelter Forest Int'l Acquisition v. United States

1

SHELTER FOREST INTERNATIONAL ACQUISITION, INC., XUZHOU SHELTER IMPORT& EXPORT CO., LTD., SHANDONG SHELTERFOREST PRODUCTS CO., LTD., IKEA SUPPLY AG, TARACA PACIFIC, INC., PATRIOT TIMBERPRODUCTS, INC., SHANGHAI FUTUWOODTRADING CO., LTD., LINYI GLARY PLYWOOD CO., LTD., FAR EAST AMERICAN, INC., Plaintiffs-Appellees LIBERTY WOODS INTERNATIONAL, INC., MJB WOOD GROUP, INC., AKA MJB WOOD GROUP, LLC, Plaintiffs v. UNITED STATES, Defendant

COALITION FOR FAIR TRADE IN HARDWOOD PLYWOOD, Defendant-Appellant

No. 2021-2281

United States Court of Appeals, Federal Circuit

June 15, 2022

This disposition is nonprecedential.

Appeal from the United States Court of International Trade in No 1:19-cv-00212-JAR, Senior Judge Jane A. Restani.

James P. Durling, Curtis, Mallet-Prevost, Colt & Mosle LLP Washington, DC, argued for plaintiffs-appellees Far East American, Inc., IKEA Supply AG, Linyi Glary Plywood Co Ltd., Shandong Shelter Forest Products Co., Ltd., Shanghai Futuwood Trading Co., Ltd., Shelter Forest International Acquisition, Inc., Xuzhou Shelter Import & Export Co Ltd. Shandong Shelter Forest Products Co., Ltd., Shelter Forest International Acquisition, Inc., and Xuzhou Shelter Import & Export Co., Ltd. also represented by James Beaty, Daniel L. Porter.

Bryan Patrick Cenko, Mowry & Grimson, PLLC, Washington, DC, argued for plaintiffs-appellees Patriot Timber Products, Inc., Taraca Pacific, Inc. Also represented by Jill Cramer, Jeffrey S. Grimson, Wenhui Ji, Yixin Li, Kristin Heim Mowry, Sarah Wyss.

Patrick D. Gill, Sandler Travis & Rosenberg, P.A., New York, NY, for plaintiff-appellee IKEA Supply AG. Also represented by Kristen Suzanne Smith, Washington, DC.

Gregory S. Menegaz, DeKieffer & Horgan, PLLC, Washington, DC, for plaintiffs-appellees Far East American, Inc., Linyi Glary Plywood Co., Ltd., Shanghai Fu-tuwood Trading Co., Ltd. Also represented by James Kevin Horgan, Alexandra H. Salzman.

Maureen E. Thorson, Wiley Rein LLP, Washington, DC, argued for defendant-appellant. Also represented by Timothy C. Brightbill, Tessa V. Capeloto, Elizabeth S. Lee, Stephanie Manaker Bell, John Allen Riggins.

Before Taranto, Clevenger, and Chen, Circuit Judges.

Clevenger, Circuit Judge.

Appellant Coalition for Fair Trade in Hardwood Plywood (the "Coalition") appeals the final decision of the United States Court of International Trade ("CIT") affirming the May 10, 2021 remand determination of the United States Department of Commerce ("Commerce"). See Shelter Forest Int'l Acquisition, Inc. v. United States, No. 19-00212, 2021 WL 3082407, at *7 (Ct. Int'l Trade July 21, 2021) ("Shelter Forest II"). In its remand determination, Commerce found that certain hardwood plywood merchandise ("inquiry merchandise"^[1]) was commercially available prior to December 8, 2016 and therefore did not constitute later-developed merchandise that circumvented Commerce's January 2018 antidumping and countervailing duty orders on certain hardwood plywood products from China ("Orders"). See id. at *3. This outcome differed from that of Commerce's original November 2019 determination, in which it found that the inquiry merchandise was not commercially available prior to December 8, 2016 and therefore did constitute later-developed merchandise circumventing the Orders. See Shelter Forest Int'l Acquisition, Inc. v. United States, 497 F.Supp.3d 1388, 1392 (Ct. Int'l Trade 2021) ("Shelter Forest I"). Commerce's change in position arose from the CIT's decision in Shelter Forest I, which (among other things) required Commerce to consider information that it had previously declined to review. See Shelter Forest II, 2021 WL 3082407, at *2-3. Based on that information, as well as additional information solicited during the remand proceeding, Commerce reached its negative anticircumvention determination. Id. The CIT sustained this determination in Shelter Forest II, finding that it was supported by substantial evidence and in accordance with the law. Id. at *3. For the reasons stated below, we affirm.

Background

I

Commerce initiated the underlying antidumping and countervailing duty investigations on December 8, 2016. Following issuance of the Orders in January 2018, the Coalition requested, and Commerce initiated, an anticircum-vention inquiry to determine whether the inquiry merchandise sold by foreign exporters constituted later-developed merchandise that circumvented the Orders. 19 U.S.C. § 1677j(d); 19 C.F.R. § 351.225(i); Shelter Forest II, 2021 WL 3082407, at *2.

As part of the anticircumvention inquiry, Commerce identified 43 Chinese exporters of inquiry merchandise. Shelter Forest I, 497 F.Supp.3d at 1394. In November 2018, it limited individual examination to the three Chinese exporters of inquiry merchandise who accounted for the largest exports by volume. Id. Commerce did not select appellees Shelter Forest International Acquisition Inc. et al. ("Shelter Forest") as one of the mandatory respondents. Id. Shelter Forest, however had previously participated in the proceeding, first through its July 16, 2018 comment in opposition to the Coalition's request for an anticircumven-tion inquiry ("July 16, 2018 Opposition") and its October 11, 2018 response to Commerce's quantity and valuation questionnaire ("October 11, 2018 Q&V Response"). See id. at 1393 & n.5; see also Joint Appendix ("J.A.") 865-1545; J.A. 1888-3468.

On November 9, 2018, Commerce issued an identical initial inquiry questionnaire to each of the three mandatory respondents. Shelter Forest I, 497 F.Supp.3d at 1394. In its initial questionnaire, Commerce requested that the mandatory respondents provide a description of "the precise resin composition of the resin used in the production of inquiry merchandise" and an explanation of how that resin composition was developed. J.A. 3497; J.A. 3544; J.A. 3591. Each mandatory respondent provided a high-level summary of the composition of its resin, but none of the responses included a percentage breakdown of the resin components or any citation or reference to supporting documentation. J.A. 3639; J.A. 3800; J.A. 4042. No other party submitted a response to the initial questionnaire. See Shelter Forest I, 497 F.Supp.3d at 1394, 1401.

Commerce then issued separate supplemental questionnaires to the three mandatory respondents on December 19, 2018. Commerce specifically directed two of the mandatory respondents to "identify the percentage of each component listed used to formulate the glue" and provide supporting documentation. J.A. 4236; J.A. 4245-46. In their respective February 12, 2019 responses, the two mandatory respondents provided the percentage breakdown of the resin components, but their supporting documentation only identified their respective resins as being a urea-formaldehyde glue and did not mention any of the other components, let alone the specific percentages of each. See J.A. 4271, 4355-62; J.A. 4005-16; J.A. 4457-58.

Even though it was not selected as a mandatory respondent, Shelter Forest voluntarily elected to respond to some of the questions raised in Commerce's supplemental questionnaires ("February 12, 2019 Partial Response").^[2]Shelter Forest I, 497 F.Supp.3d at 1394. In its February 12, 2019 Partial Response, Shelter Forest acknowledged that Commerce requested from two of the mandatory respondents "additional explanation on the composition of the resin used" in the inquiry merchandise. J.A. 4610. Shelter Forest did not submit new materials, but instead directed Commerce to materials, including employee declarations, it had previously submitted regarding the composition of its eZero (also referred to as "E0") glue and the use of eZero glue in the inquiry merchandise. See J.A. 4602-04, 4606, 4609-11; see also, e.g., J.A. 895-908, 925- 26, 938-39, 941, 1484 (materials submitted in Shelter Forest's July 16, 2018 Opposition); J.A. 1898-99, 1903-904, 1906-13, 1915-16 (materials submitted in Shelter Forest's October 11, 2018 Q&V Response). Those materials, according to Shelter Forest, demonstrated that the radiata pine, CARB-certified plywood merchandise sold by Shelter Forest prior to December 8, 2016 "was made with a resin the majority of which was urea formaldehyde." J.A. 4610.

On June 4, 2019, Commerce notified the parties of its preliminary finding that the inquiry merchandise constitutes later-developed merchandise circumventing the Orders. Shelter Forest I, 497 F.Supp.3d at 1394. Relevant to this appeal, Commerce noted that it was unable to determine that the radiata pine, CARB-certified plywood merchandise sold by Shelter Forest prior to December 8, 2016 used a majority urea-formaldehyde resin, as Shelter Forest claimed. See Preliminary Decision Memorandum, Anti-Circumvention Inquiry on the Antidumping and Countervailing Duty Orders on Certain Hardwood Plywood Products from the People's Republic of China, Case Nos. A-570-051, C-570-052 (Dep't Commerce June 4, 2019) ("PDM"), at 16- 17. Specifically, Commerce asserted, "Shelter Forest did not provide any documentation to support its assertion that 'eZero . . . is a glue made from a urea formaldehyde base.'" Id. at 17. Commerce had not requested additional documentation from Shelter Forest, let alone notified Shelter Forest of any deficiency in its submissions, prior to issuing the PDM.

On July 3, 2019, in response to Commerce's preliminary determination, Shelter Forest submitted additional information regarding the composition of its resin. Shelter Forest I, 497 F.Supp.3d at 1394-95; see also J.A. 5718- 817. Commerce rejected this submission as untimely new factual information, but invited Shelter Forest to formally "request Commerce solicit such information in accordance with 19 CFR 351.301(a)" by July 16, 2019. J.A. 4926. Shelter Forest made that request within...