497 F.Supp.3d 1388
Ct. Int'l Trade2021Background:
- Commerce issued antidumping and countervailing duty Orders on certain hardwood plywood from China in January 2018.
- The Coalition requested an anti‑circumvention inquiry; Commerce initiated a later‑developed merchandise inquiry in September 2018 targeting plywood with radiata/agathis faces, TSCA/CARB labeling, and resins majority comprised of urea formaldehyde, PVA, and/or soy.
- Commerce limited individual examination to three mandatory respondents (Yuantai, Glary, Futuwood) citing resource constraints; Shelter Forest submitted voluntary information later rejected as untimely new factual information (NFI).
- Commerce issued a preliminary affirmative determination in June 2019 and a final affirmative determination in November 2019 that inquiry merchandise was later‑developed and circumventing the Orders; it instructed CBP to suspend liquidation effective the initiation date it used.
- Plaintiffs challenged Commerce’s determination and several procedural actions (NFI rejection, application of China‑wide deposit rate, initiation date, ITC notice, rejection of IKEA’s rebuttal). The Court remanded for reconsideration, finding multiple aspects unsupported or procedurally flawed.
Issues:
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether inquiry merchandise is "later‑developed" and circumventing under 19 U.S.C. §1677j(d) | Commerce’s definition and evidentiary burdens were unreasonably narrow and prevented plaintiffs from showing prior commercial availability | Commerce’s finding is supported by the record and statutory framework | Court: Commerce’s affirmative determination is unsupported by substantial evidence; remanded for reconsideration |
| Rejection of Shelter Forest’s July 3 glue‑composition submission (NFI) | Rejection was unlawful abuse of discretion; Commerce failed to notify deficiencies and should accept volunteers in later‑developed inquiries | Rejection was permissible under Commerce’s NFI deadlines and resource limits | Court: Commerce abused its discretion; must consider the submission, notify deficiencies, and allow correction on remand |
| Application of China‑wide rate as cash deposit (AFA rate) | Application constitutes de facto adverse inference without giving plaintiffs opportunity to show company‑specific rate | Deposit rate follows rates established in underlying investigation; plaintiffs may seek administrative review later | Court: Commerce must give opportunity to show entitlement to non‑China‑wide rate or explain why not; remanded |
| Date of initiation for suspension of liquidation (signature vs. publication) | Suspension should run from Federal Register publication (public notice) | Signature date is initiation date under Commerce practice/regulation | Court: "Date of initiation" for purposes of suspending liquidation is publication date; Commerce’s signature‑date approach not in accordance with law; remand to amend effective date if needed |
| Requirement to notify ITC under 19 U.S.C. §1677j(e)(1)(C) | Commerce should have notified ITC if inquiry merchandise involved significant technological advance/alteration | Notification not required because inquiry concerns later‑developed merchandise distinct from minor‑alterations inquiries | Court: Commerce should reassess whether ITC notice was required given prior scope analyses and explain reviewability; remand |
| Rejection of portion of IKEA’s rebuttal brief (new legal authority) | Rejection was improper because IKEA cited intervening court decision that post‑dated case briefs | Rejection appropriate under rule limiting rebuttal to responses to case briefs | Court: Commerce abused its discretion by rejecting new legal authority in rebuttal submitted after intervening decision; it should have considered the argument |
Key Cases Cited
- Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006) (substantial‑evidence standard for Commerce review)
- Tai‑Ao Aluminium (Taishan) Co. v. United States, 391 F. Supp. 3d 1301 (Ct. Int’l Trade 2019) (publication in Federal Register gives notice for suspension of liquidation)
- Columbia Forest Prods. v. United States, 399 F. Supp. 3d 1283 (Ct. Int’l Trade 2019) (scope/anticircumvention analysis informing later decisions)
- ArcelorMittal USA LLC v. United States, 399 F. Supp. 3d 1271 (Ct. Int’l Trade 2019) (treatment of untimely corrections and administrative discretion)
- Grobest & I‑Mei Indus. (Vietnam) Co. v. United States, 815 F. Supp. 2d 1342 (Ct. Int’l Trade 2012) (remedial purpose of antidumping statute and weighing late corrections)
- Fed. Crop Ins. Corp. v. Merrill, 332 U.S. 380 (1947) (publication in Federal Register confers legal notice)