Case: 21-2281 Document: 69 Page: 1 Filed: 06/15/2022
NOTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
SHELTER FOREST INTERNATIONAL
ACQUISITION, INC., XUZHOU SHELTER IMPORT
& EXPORT CO., LTD., SHANDONG SHELTER
FOREST PRODUCTS CO., LTD., IKEA SUPPLY AG,
TARACA PACIFIC, INC., PATRIOT TIMBER
PRODUCTS, INC., SHANGHAI FUTUWOOD
TRADING 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
______________________
2021-2281
______________________
Case: 21-2281 Document: 69 Page: 2 Filed: 06/15/2022
2 SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US
Appeal from the United States Court of International
Trade in No. 1:19-cv-00212-JAR, Senior Judge Jane A. Re-
stani.
______________________
Decided: June 15, 2022
______________________
JAMES P. DURLING, Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, argued for plaintiffs-appel-
lees 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 repre-
sented 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 Ameri-
can, 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
Case: 21-2281 Document: 69 Page: 3 Filed: 06/15/2022
SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US 3
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 Ply-
wood (the “Coalition”) appeals the final decision of the
United States Court of International Trade (“CIT”) affirm-
ing 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, Com-
merce 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 (“Or-
ders”). See id. at *3. This outcome differed from that of
1 “Inquiry merchandise” is defined as certain ply-
wood (1) “with face and back veneers made of radiata
and/or agathis pine,” that (2) “[h]as a Toxic Substances
Control Act (TSCA) or California Air Resources Board
(CARB) label certifying that it is compliant with
TSCA/CARB requirements,” and (3) “is made with a resin,
the majority of which is comprised of one or more of the
following three product types—urea formaldehyde, polyvi-
nyl acetate, and/or soy.” Shelter Forest II,
2021 WL
3082407, at *2. The resin is used to glue, or otherwise bond,
the veneers to the core of the plywood. See id. at *1. The
parties used the term “resin” and “glue” interchangeably in
their briefing, as well as in the proceedings below, and we
do the same in this opinion.
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4 SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US
Commerce’s original November 2019 determination, in
which it found that the inquiry merchandise was not com-
mercially 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 infor-
mation that it had previously declined to review. See Shel-
ter 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 neg-
ative anticircumvention determination.
Id. The CIT sus-
tained 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 Co-
alition requested, and Commerce initiated, an anticircum-
vention inquiry to determine whether the inquiry
merchandise sold by foreign exporters constituted later-de-
veloped 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 Chi-
nese exporters of inquiry merchandise who accounted for
the largest exports by volume. Id. Commerce did not select
appellees Shelter Forest International Acquisition Inc. et
Case: 21-2281 Document: 69 Page: 5 Filed: 06/15/2022
SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US 5
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 manda-
tory 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 pre-
cise 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 sum-
mary of the composition of its resin, but none of the re-
sponses included a percentage breakdown of the resin
components or any citation or reference to supporting doc-
umentation. J.A. 3639; J.A. 3800; J.A. 4042. No other party
submitted a response to the initial questionnaire. See Shel-
ter Forest I, 497 F. Supp. 3d at 1394, 1401.
Commerce then issued separate supplemental ques-
tionnaires to the three mandatory respondents on Decem-
ber 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 man-
datory respondents provided the percentage breakdown of
the resin components, but their supporting documentation
only identified their respective resins as being a urea-for-
maldehyde glue and did not mention any of the other com-
ponents, let alone the specific percentages of each. See J.A.
4271, 4355–62; J.A. 4005–16; J.A. 4457–58.
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6 SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US
Even though it was not selected as a mandatory re-
spondent, 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 re-
spondents “additional explanation on the composition of
the resin used” in the inquiry merchandise. J.A. 4610. Shel-
ter Forest did not submit new materials, but instead di-
rected 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 For-
est’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, accord-
ing to Shelter Forest, demonstrated that the radiata pine,
CARB-certified plywood merchandise sold by Shelter For-
est 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 consti-
tutes later-developed merchandise circumventing the Or-
ders. Shelter Forest I, 497 F. Supp. 3d at 1394. Relevant to
this appeal, Commerce noted that it was unable to deter-
mine that the radiata pine, CARB-certified plywood mer-
chandise sold by Shelter Forest prior to December 8, 2016
2 As Shelter Forest did not respond to the initial
questionnaire, the February 12, 2019 Partial Response was
Shelter Forest’s first questionnaire response after Com-
merce identified the mandatory respondents in November
2018. See Shelter Forest I, 497 F. Supp. 3d at 1394.
Case: 21-2281 Document: 69 Page: 7 Filed: 06/15/2022
SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US 7
used a majority urea-formaldehyde resin, as Shelter Forest
claimed. See Preliminary Decision Memorandum, Anti-Cir-
cumvention Inquiry on the Antidumping and Countervail-
ing 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 Shel-
ter Forest of any deficiency in its submissions, prior to is-
suing the PDM.
On July 3, 2019, in response to Commerce’s prelimi-
nary 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. Shel-
ter Forest made that request within the stated deadline,
but Commerce nonetheless declined it. Shelter Forest I, 497
F. Supp. 3d at 1395; see also J.A. 4929–33; J.A. 4935–37.
After receiving case briefs and rebuttal briefs from the par-
ties, Commerce then issued its final affirmative determi-
nation on November 22, 2019 confirming its preliminary
finding. Shelter Forest I, 497 F. Supp. 3d at 1395. In the
accompanying Issues and Decisions Memorandum, Com-
merce concluded that Shelter Forest’s glue did not meet the
third criteria for inquiry merchandise because the em-
ployee declarations described the glue as being made from
an “urea formaldehyde base” instead of a “majority” of urea
formaldehyde. Issues and Decision Memorandum for the
Final Determination, Anti-Circumvention Inquiry on the
Antidumping and Countervailing Duty Orders on Certain
Hardwood Plywood Products from the People’s Republic of
Case: 21-2281 Document: 69 Page: 8 Filed: 06/15/2022
8 SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US
China, Case Nos. A-570-051, C-570-052 (Dep’t Commerce
Nov. 22, 2019) (“IDM”), at 24. Commerce also faulted Shel-
ter Forest for not “identify[ing] the exact composition of its
E0 glue,” id., even though Commerce had never requested
such information from Shelter Forest and refused to accept
that information when Shelter Forest attempted to provide
it. See J.A. 4935–37.
II
Shelter Forest, Shanghai Futuwood Trading Co., Ltd.
(“Futuwood”), IKEA Supply AG. et al. (“IKEA”), and Taraca
Pacific Inc. et al. (“Taraca Pacific”) subsequently filed suit
in the CIT challenging Commerce’s final determination.
Shelter Forest I, 497 F. Supp. 3d at 1392, 1395. Relevant to
this appeal, the CIT concluded that substantial evidence
did not support Commerce’s determination that no re-
spondent met the glue criteria for inquiry merchandise,
given the declarations Shelter Forest submitted as well as
Commerce’s failure to seek or review supplemental infor-
mation from Shelter Forest. Id. at 1397–98. The CIT addi-
tionally concluded that “Commerce abused its discretion by
rejecting Shelter Forest’s submission as untimely when it
had not provided notice to Shelter Forest regarding any de-
ficiencies [in Shelter Forest’s previous submissions], as re-
quired by 19 U.S.C. § 1677m(d).” 3 Id. at 1400. Any
3 The statute states, in relevant part: “If the admin-
istering authority or the Commission determines that a re-
sponse to a request for information under this subtitle does
not comply with the request, the administering authority
or the Commission (as the case may be) shall promptly in-
form the person submitting the response of the nature of
the deficiency and shall, to the extent practicable, provide
that person 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 subti-
tle.” 19 U.S.C. § 1677m(d).
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SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US 9
tardiness on the part of Shelter Forest, the CIT explained,
“resulted from Commerce’s failure to notify Shelter Forest
of any deficiencies in its submissions until Commerce re-
leased its [PDM].” Id. at 1401. Accordingly, the CIT ordered
Commerce to consider on remand Shelter Forest’s July 3,
2019 submission and, as prescribed by 19 U.S.C.
§ 1677m(d), to notify Shelter Forest of any deficiencies and
provide it with an opportunity to correct or explain such
deficiencies. Id. at 1402.
III
On remand, Commerce concluded that Shelter Forest’s
inquiry merchandise did not constitute later-developed
merchandise that circumvented the Orders. Shelter Forest
II,
2021 WL 3082407, at *3; see also Final Results of Rede-
termination Pursuant to Court Remand, Anti-Circumven-
tion 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 May 10, 2021) (“Final Remand De-
termination”) at 9–10, 23, 31. Commerce reached this de-
termination after reviewing Shelter Forest’s July 3, 2019
submission and additional materials it solicited from Shel-
ter Forest via a supplemental questionnaire. See Shelter
Forest II,
2021 WL 3082407, at *3–4. In total, these mate-
rials included details regarding the composition of Shelter
Forest’s eZero glue and the later addition of melamine for
purposes of waterproofing, as well as relevant production
and sales documentation linking the use of the melamine-
fortified eZero glue to the radiata pine, CARB-certified ply-
wood Shelter Forest sold prior to December 8, 2016.
Id. at
*3–4; see also Final Remand Determination at 11–14, 25–
26. Commerce also engaged extensively with the criticisms
raised by the Coalition regarding the sufficiency of and al-
leged inconsistencies in Shelter Forest’s documentation.
Final Remand Determination at 20–30. None of
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10 SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US
Commerce’s factual findings or subsequent negative re-
mand determination were made under protest. 4
IV
The Coalition then filed suit before the CIT, arguing
that Commerce’s remand determination is unsupported by
substantial evidence. Shelter Forest II,
2021 WL 3082407,
at *3. The Coalition further argued that Commerce’s re-
mand determination is not in accordance with the law,
given that it found Shelter Forest’s merchandise to be com-
mercially available prior to December 8, 2016 despite Shel-
ter Forest’s position that the melamine fortification of its
eZero glue was a trade secret at the time.
Id.
The CIT disagreed, finding that the evidence supported
both Commerce’s conclusion that Shelter Forest’s mer-
chandise met the resin requirement for inquiry merchan-
dise and Commerce’s reliance on Shelter Forest’s
explanation as to why the eZero glue recipe did not include
melamine as an ingredient.
Id. at *4–5. The CIT further
determined that Commerce appropriately used production
and sales documentation to link use of the eZero glue to
specific radiata pine, CARB-certified plywood sales made
prior to December 8, 2016. Id. at *5. Like Commerce, the
CIT rejected the Coalition’s criticisms regarding the al-
leged inconsistencies in Shelter Forest’s documentation,
4 Generally speaking, Commerce will reach a re-
mand determination under protest “where the CIT re-
mands with instructions that dictate a certain outcome
that is contrary to how Commerce would otherwise find.”
Meridian Prods. v. United States,
890 F.3d 1272, 1276 n.3
(Fed. Cir. 2018); see also Viraj Grp., Ltd. v. United States,
343 F.3d 1371, 1376–77 (Fed. Cir. 2003) (explaining that
Commerce may “adopt[ ] under protest a contrary position
forced upon it by the [CIT]” and subsequently appeal that
position to this court).
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SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US 11
noting that those criticisms “do not undermine the reason-
ableness of Commerce’s factual findings, which are sup-
ported by ample evidence on the record.” Id. at *6. Finally,
the CIT held that Commerce’s determination was in ac-
cordance with the law, as “[n]othing of record indicates that
melamine is essential to the pertinent inquiry” and thus
melamine’s “addition in the production process is not re-
quired to be public knowledge for the merchandise to be
found to be commercially available.” Id. at *7.
The Coalition appeals, 5 arguing that Commerce
properly exercised its discretion in rejecting Shelter For-
est’s July 3, 2019 submission as untimely and did not vio-
late its duty under 19 U.S.C. § 1677m(d). See Appellant’s
Br. at 13–14, 22–23. The Coalition further argues that
Commerce’s remand determination is “inadequately ex-
plained, unsupported by substantial record evidence, and
otherwise unreasonable.” Id. at 26. We have jurisdiction
over the CIT’s final decision in this case pursuant to
28 U.S.C. § 1295(a)(5).
DISCUSSION
We review Commerce’s determinations using the same
standard of review as the CIT, meaning we uphold those
determinations if they are supported by substantial evi-
dence and otherwise in accordance with the law. 19 U.S.C.
§ 1516a(b)(1)(B)(i); SolarWorld Ams., Inc. v. United States,
910 F.3d 1216, 1222 (Fed. Cir. 2018) (citing Downhole Pipe
& Equip., L.P. v. United States,
776 F.3d 1369, 1373 (Fed.
Cir. 2015)). “Substantial evidence is defined as ‘more than
a mere scintilla,’ as well as evidence that a ‘reasonable
mind might accept as adequate to support a conclusion.’”
Downhole Pipe, 776 F.3d at 1374 (quoting Consol. Edison
5 The government did not participate in this appeal.
See Letter from United States re: Non-Participation in Ap-
peal, Docket No. 2.
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12 SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US
Co. of N.Y. v. NLRB,
305 U.S. 197, 229 (1938)). In review-
ing for substantial evidence, “[w]e look to ‘the record as a
whole, including evidence that supports as well as evidence
that fairly detracts from the substantiality of the evi-
dence.’” SolarWorld, 910 F.3d at 1222 (quoting Zhejiang
DunAn Hetian Metal Co. v. United States,
652 F.3d 1333,
1340 (Fed. Cir. 2011)). “Although we review the CIT’s deci-
sion de novo, ‘we give great weight’ to the CIT’s ‘informed
opinion,’ which ‘is nearly always the starting point of our
analysis.’” Canadian Solar, Inc. v. United States,
23 F.4th
1372, 1378 (Fed. Cir. 2022) (quoting Nan Ya Plastics Corp.
v. United States,
810 F.3d 1333, 1341 (Fed. Cir. 2016)).
I
We conclude that Commerce abused its discretion in
the original proceeding by failing, as required by 19 U.S.C.
§ 1677m(d), to notify Shelter Forest of any deficiency in its
February 12, 2019 Partial Response and to provide Shelter
Forest with an opportunity to remedy or explain such defi-
ciency.
There does not appear to be any dispute that the stat-
utory notice requirement applies equally to both manda-
tory and voluntary respondents. The text of § 1677m as a
whole supports this reading. Compare 19 U.S.C.
§ 1677m(a) (discussing treatment of voluntary responses
from exporters or producers not initially selected for indi-
vidual examination in proceedings where Commerce has
limited the number of exporters and producers to be exam-
ined), with id. § 1677m(d) (referring generally to “re-
sponse[s] to a request for information” without
distinguishing between mandatory and voluntary re-
sponses). Indeed, the Coalition acknowledged during oral
argument that its position “has never been that [section]
1677m(d) can’t apply to a voluntary respondent.” See Oral
Argument at 8:51–58; see also id. at 9:30–42 (noting belief
that a voluntary respondent is generally “grandfathered
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SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US 13
in[to section] 1677m(d)” by responding to questionnaires
from Commerce “as they come along”).
The Coalition’s contention that § 1677m(d) does not ap-
ply to Commerce in this case is premised on the actions
Shelter Forest took (or failed to take) in responding to the
supplemental questionnaires. 6 Specifically, the Coalition
argues, Shelter Forest intentionally did not provide the in-
formation and materials Commerce had requested and in-
stead referred Commerce back to its earlier, allegedly
deficient filings. See Appellant’s Br. at 18–22. This behav-
ior, in the Coalition’s view, brings this case within the pur-
view of Papierfabrik August Koelher SE v. United States,
in which we held that § 1677m(d) does not obligate Com-
merce “to treat intentionally incomplete data as a ‘defi-
ciency’ and then to give a party that has intentionally
submitted incomplete data an opportunity to ‘remedy’ as
well as to ‘explain’” that deficiency.
843 F.3d 1373, 1383–
84 (Fed. Cir. 2016).
6 We decline to address the Coalition’s argument
that Shelter Forest forewent its rights under § 1677m(d) by
responding only at the supplemental questionnaire stage.
This argument, which was only briefly alluded to in the Co-
alition’s reply brief, see Appellant’s Reply Br. at 15, was
presented in full for the first time at oral argument and
comes too late. See Henry v. Dep’t of Justice,
157 F.3d 863,
865 (Fed. Cir. 1998) (declining to consider argument raised
for the first time at oral argument); SmithKline Beecham
Corp. v. Apotex Corp.,
439 F.3d 1312, 1320 (Fed. Cir. 2006)
(holding arguments insufficiently developed in briefing are
forfeited); see also Oral Argument at 11:56–13:54. For sim-
ilar reasons, we decline to address the Coalition’s underde-
veloped argument that Shelter Forest forewent its rights
under § 1677m(d) by failing to request voluntary respond-
ent status under
19 C.F.R. § 351.204(d)(4). See Appellant’s
Reply Br. at 7, 11 n.3.
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14 SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US
This case, however, is not analogous to Papierfabrik.
The “intentionally incomplete data” language from that
case stems from the fact that the respondent there submit-
ted fraudulent sales data to Commerce. Id. at 1383. The
fraudulent nature of the respondent’s previous submission
formed the underlying rationale for our decision that
§ 1677m(d) did not apply, as that statutory provision “is
readily understood not to apply to the situation [t]here,
where [the respondent] was already aware of and
caused the ‘so-called deficiency.’” Id. at 1384 (emphasis
added). Here, on the other hand, the Coalition does not al-
lege that Shelter Forest submitted fraudulent information
to Commerce.
The Coalition instead argues that Commerce had no
duty under § 1677m(d) in this case because Shelter Forest,
through counsel, had access to the information and mate-
rials contained in the exchanges between Commerce and
the three mandatory respondents. Appellant’s Br. at 20–
21. With those exchanges accessible, the Coalition con-
tends Shelter Forest knew or should have known (1) that
its previous submissions were deficient with respect to the
glue criteria, and (2) the level of detail required to overcome
that deficiency. Id. at 21–22. As such, in the Coalition’s
view, there was no need for Commerce to identify any defi-
ciency in Shelter Forest’s previous submissions or to pro-
vide Shelter Forest with an opportunity to remedy or
explain such deficiency. Id. But the Coalition cites no au-
thority supporting its position that Commerce is relieved of
its statutory duty by a voluntary respondent’s ability to
puzzle out from the docket what information is deficient
and what information would be sufficient.
Even if the Coalition’s argument had merit, the partic-
ular facts of this case undermine it. First, based on the rec-
ord before us, Shelter Forest had provided by the initial
questionnaire stage more information and supporting doc-
umentation regarding the composition of its resin than the
mandatory respondents. Compare J.A. 3639; J.A. 3800;
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SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US 15
J.A. 4042 (providing high-level summary of the mandatory
respondents’ respective resin compositions, with no cita-
tion or reference to supporting documentation), and J.A.
4005–16 (CARB compliance certifications from one of the
mandatory respondents for merchandise using urea for-
maldehyde glue), with, e.g., J.A. 895, 901–905; J.A. 1907–
1910 (Shelter Forest employee declarations), and J.A. 925–
26, 938–39, 941, 1484; J.A. 1915–16 (supporting documen-
tation), and J.A. 1898–99, 1903–904 (October 11, 2018
Q&V Response). See also J.A. 4602–604, 4606, 4609–11 (di-
recting Commerce to employee declarations and other ma-
terials previously submitted by Shelter Forest in July and
October 2018). This undercuts the notion that Shelter For-
est should have known that its own materials were defi-
cient based on Commerce’s reaction to what the mandatory
respondents initially submitted. Second, Commerce did not
appear to have a monolithic vision as to the type of infor-
mation and materials needed to show the glue criteria was
met, as evidenced by Commerce’s decision not to request a
percentage breakdown of the third mandatory respondent’s
resin composition. Compare J.A. 4250–52 (requesting third
mandatory respondent explain how submitted documenta-
tion “demonstrates that the merchandise sold meets the
definition of inquiry merchandise”), with J.A. 4236; J.A.
4245–46 (requesting other mandatory respondents “iden-
tify the percentage of each component listed used to formu-
late the glue” and provide supporting documentation). This
undercuts the notion that Shelter Forest should have
known how to remedy any deficiency in its own submis-
sions based on Commerce’s supplemental requests to the
mandatory respondents. Finally, to the extent the Coali-
tion’s argument is one of harmless error, such argument
fails: it is clear in this case that Commerce’s decision not to
abide by § 1677m(d) was not harmless.
For the reasons stated above, as the CIT properly con-
cluded in Shelter Forest I, Commerce abused its discretion
Case: 21-2281 Document: 69 Page: 16 Filed: 06/15/2022
16 SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US
in rejecting Shelter Forest’s July 3, 2019 submission as un-
timely. Shelter Forest I, 497 F. Supp. 3d at 1400–401.
II
We conclude that substantial evidence supports Com-
merce’s negative determination and reject the Coalition’s
attempts to cast doubt on the agency’s conclusions.
Commerce sufficiently and reasonably explained the
bases for its negative remand determination. In particular,
Commerce relied on the materials Shelter Forest submit-
ted demonstrating (1) the composition of its eZero glue,
which Shelter Forest explained was later fortified with
melamine for purposes of waterproofing, and (2) the use of
the melamine-fortified eZero glue in the radiata pine,
CARB-certified plywood Shelter Forest marketed and sold
prior to December 8, 2016. Final Remand Determination at
11–14, 25–26. Substantial evidence supports these find-
ings.
For instance, the record contains documentation from
Shelter Forest regarding certain shipments of radiata pine,
CARB-certified plywood merchandise, including documen-
tation indicating that this merchandise uses Shelter For-
est’s eZero urea-formaldehyde glue. See, e.g., J.A. 895, 901–
905; ; J.A. 925–26, 938–39, 941, 1484; J.A. 1898–99, 1903–
904, 1907–1910; J.A. 1915–16; J.A. 5729–33; J.A. 5745–47,
5750; J.A. 5757–59, 5764. The record also includes docu-
mentation of the eZero glue formula, which confirms that
the eZero glue is majority urea formaldehyde, J.A. 5738–
39, as well as documentation explaining that melamine
was added to the eZero glue for waterproofing purposes and
that this addition occurs after the glue is already mixed,
see, e.g., J.A. 5877–80; J.A. 5892–93; J.A. 5902; J.A. 5933–
35.
Commerce also adequately addressed the issues raised
by the Coalition, which the Coalition repeats on appeal. See
Final Remand Determination at 20–30. These arguments
Case: 21-2281 Document: 69 Page: 17 Filed: 06/15/2022
SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US 17
are insufficient because, as both Commerce and the CIT
explained, they do not undermine Commerce’s factual find-
ings or the evidence on which those findings rely, or be-
cause they are otherwise irrelevant to the ultimate
question of whether Shelter Forest sold inquiry merchan-
dise prior to December 8, 2016. See Shelter Forest II,
2021
WL 3082407, at *5–6; Final Remand Determination at 20–
30.
For example, the Coalition points out that the eZero
glue recipe does not refer to melamine. Appellant’s Reply
Br. at 22. The Coalition also alleges that Shelter Forest’s
documentation contains “inconsistent and contradictory in-
formation” regarding how much melamine was added to
the eZero glue; whether melamine-fortified eZero glue is
waterproof or not; and whether the waterproof plywood
merchandise sold by Shelter Forest used eZero glue, which
itself is not waterproof. Appellant’s Br. at 27–29, 31; Ap-
pellant’s Reply Br. at 21–22, 26, 28. But Commerce’s defi-
nition of inquiry merchandise—the exact definition the
Coalition proposed, see Shelter Forest II,
2021 WL 3082407,
at *3 n.5—says nothing about the presence (or absence) of
melamine in the resin, the degree to which the resin is wa-
terproof, or the degree to which the merchandise itself is
waterproof. Thus, the alleged discrepancies the Coalition
identifies are irrelevant and do not detract from the sub-
stantial evidence supporting Commerce’s negative deter-
mination. Even so, these alleged inconsistencies are
resolved by Shelter Forest’s explanation that melamine
was added after the eZero glue is already mixed, see, e.g.,
J.A. 5877–80; J.A. 5892–93; J.A. 5902; J.A. 5933–35, and
by evidence in the record implying a direct relationship be-
tween the amount of melamine added and the degree to
which the melamine-fortified glue (and thus the plywood
merchandise) is waterproof, see, e.g., J.A. 938; J.A. 1692;
J.A. 1908; J.A. 1915; J.A. 5876–77; J.A. 5892; J.A. 5935.
For the reasons stated above, Commerce’s determina-
tion that Shelter Forest sold inquiry merchandise prior to
Case: 21-2281 Document: 69 Page: 18 Filed: 06/15/2022
18 SHELTER FOREST INTERNATIONAL ACQUISITION, INC. v. US
December 8, 2016 is both reasonable and supported by sub-
stantial evidence.
CONCLUSION
We have considered the Coalition’s remaining argu-
ments and do not find them persuasive. For the foregoing
reasons, we affirm the CIT’s final judgment.
AFFIRMED
