Ass'n of Am. Sch. Paper Suppliers v. United States

791 F.Supp.2d 1292

ASSOCIATION OF AMERICAN SCHOOL PAPER SUPPLIERS, Plaintiff,

v.UNITED STATES, Defendant,andShanghai Lian Li Paper Products Co., Ltd., Defendant–Intervenor.

Slip Op. 11–101.Court No. 09–00163.

United States Court of International Trade.

Aug. 11, 2011.

Wiley Rein LLP (Alan H. Price, Timothy C. Brightbill, and Maureen E. Thorson), Washington, DC, for Plaintiff Association of American School Paper Suppliers.Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Washington, DC, (Michael D. Panzera).Dorsey & Whitney LLP (William E. Perry, Emily Lawson, Seattle, WA, and Elizabeth Crouse), for Defendant–Intervenor Shanghai Lian Li Paper Products Co., Ltd.

OPINION

WALLACH, Judge:

I

INTRODUCTION

This action for review follows a remand to the Department of Commerce (“Commerce”) of its determination pursuant to the administrative review of the antidumping duty order covering certain lined paper products from the People's Republic of China (“PRC”). Certain Lined Paper Products from the People's Republic of China: Notice of Final Results of the Antidumping Duty Administrative Review, 74 Fed.Reg. 17,160 (April 14, 2009) (“Final Results”). The court has jurisdiction to entertain this action pursuant 28 U.S.C. § 1581(c).

Previously, the court upheld Commerce's determination in the Final Results except with regard to Commerce's “selection of information to calculate surrogate financial values.” Ass'n of Am. Sch. Paper Suppliers v. United States, 716 F.Supp.2d 1329, 1331 (CIT 2010) (“ AASPS I ”). The court held that this selection was unsupported by substantial evidence and remanded “for Commerce to revisit this determination.” Id. at 1336.¹

Plaintiff Association of American School Paper Suppliers (“AASPS” or “Plaintiff”) continues to challenge Commerce's selection of information to calculate surrogate financial values. Association of American School Paper Suppliers' Comments on the Remand Results (“Plaintiff's Comments”), Doc. No. 108 at 1–2; see also Reply Brief to Defendant and Defendant–Intervenor's Response Briefs (“Plaintiff's Initial Reply”), Doc. No. 81 at 1–10; Amended Complaint, Doc. No. 70 ¶ 6. For the reasons stated below, Commerce's selection is supported by substantial evidence.

II

BACKGROUND

In September 2006, Commerce issued antidumping and countervailing duty orders on certain lined paper products from the People's Republic of China. Notice of Amended Final Determination of Sales at Less Than Fair Value: Certain Lined Paper Products from the People's Republic of China; Notice of Antidumping Duty Orders: Certain Lined Paper Products from India, Indonesia and the People's Republic of China; and Notice of Countervailing Duty Orders: Certain Lined Paper Products from India and Indonesia, 71 Fed.Reg. 56,949, 56,949 (September 28, 2006). In October 2007, Commerce initiated the first administrative review of those orders for the period of review (“POR”) from April 17, 2006 through August 31, 2007. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 72 Fed.Reg. 61,621, 61,621 (October 31, 2007). Commerce selected Defendant–Intervenor Shanghai Lian Li Paper Products Co. Ltd. (“Defendant–Intervenor”) as a mandatory respondent. Id.

During this review, Defendant–Intervenor submitted financial information for Sundaram Multi Pap Ltd. (“Sundaram data”),² an Indian paper producer. Lined Paper Products from China; Supplemental Section D Response of Shanghai Lian Li Paper Products Co., Ltd. (January 23, 2008), Public Document (“P.D.”) 45; ³ Letter from Garvey Schubert Barer to Carlos Gutierrez, Secretary of Commerce, Re: Certain Lined Paper Products from China; Submission of Surrogate Value Information (April 1, 2008), P.D. 63 at 5. AASPS submitted financial information for Navneet Publications (“Navneet data”), another Indian paper producer. Letter from Wiley Rein LLP to Carlos M. Gutierrez, Secretary of Commerce, Re: Certain Lined Paper Products from China, First Antidumping Duty Administrative Review: Comments on the Valuation of Factor Inputs (April 8, 2008), Confidential Document (“C.D.”) 16 at 7.⁴

Commerce determined for the reasons stated below, see infra at n. 5 and n. 7, that the Sundaram data were the “best available information” to calculate surrogate financial values and declined to use the Navneet data for this purpose. Memorandum from John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Acting Assistant Secretary for Import Administration, Issues and Decisions for the Final Results of the First Administrative Review (April 6, 2009), P.D. 117 (“Final Results Memorandum”) at cmt. 4; see also AASPS I, 716 F.Supp.2d at 1333, 1335; Certain Lined Paper Products from the People's Republic of China: Notice of Preliminary Results of the Antidumping Duty Administrative Review, 73 Fed.Reg. 58,540, 58,547 (October 7, 2008) (“Preliminary Results”).

In AASPS I, AASPS argued, inter alia, “that substantial evidence supports neither (1) Commerce's selection of the Sundaram [data] for the purpose of calculating surrogate financial values nor (2) Commerce's rejection of the Navneet [data].” AASPS I, 716 F.Supp.2d at 1334 (internal citations omitted) (citing Plaintiff's Initial Reply at 6–7, 20); see also Amended Complaint at ¶ 6. The court agreed, holding, inter alia, that “Commerce failed to articulate a rational connection between the evidence on the record and its selection of the Sundaram [data].” AASPS I, 716 F.Supp.2d at 1335. Because “Commerce's determination that the Sundaram [data] is the best available information for calculation of surrogate financial values [was] unsupported by substantial evidence[,] [t]his matter [was] remanded for Commerce to revisit this determination.” Id. at 1336.

In December 2010, Commerce issued its Final Results of Redetermination Pursuant to Remand, Doc. No. 105 (“Remand Redetermination”). Remand Redetermination at 1. Commerce “consider[ed] specificity, contemporaneity, and the quality of available data” to determine what constitutes best available information. Id. at 24. Commerce again concluded that the Sundaram data “constitutes the best available information on the record” because “Sundaram is a producer of stationery products; its financial information is contemporaneous with the POR; and the data are sufficiently complete and accurate for the purpose of calculating surrogate financial ratios” and because “there is no evidence that Sundaram received [potentially distorting] countervailable subsidies.” Id. at 14.⁵

In examining the accuracy of the Sundaram data, Commerce compared the data in the official 2004–2005 Sundaram annual financial report submitted by Plaintiff to “the data for year end March 2005” in the Sundaram data submitted by Defendant–Intervenor. Remand Redetermination at 26; Memorandum from Christopher Hargett, International Trade Compliance Analyst, and Michael Martin, Lead Accountant, to The File, Re: Sundaram Balance Sheet Analysis (December 6, 2010), Public Document on Remand (“P.D.R.”) 13 (“Balance Sheet Analysis”) at 2.⁶ Using this comparison, Commerce concluded that the submitted Sundaram data were “an accurate representation” of the official 2006–2007 Sundaram annual financial report. Remand Redetermination at 26; see also Balance Sheet Analysis at 3 (“Thus, the accuracy and completeness of 2007 Sundaram balance sheet and profit and loss account provided by Lian Li, which includes the 2005 financial information, is corroborated by AASPS' own submission of Sundaram's 2005 balance sheet and profit and loss account.”).

In contrast to the Final Results,⁷ Commerce concluded that the Navneet data were “less representative” due to Navneet's receipt of countervailable subsidies and different level of integration. Remand Redetermination at 26–27. Therefore, Commerce “continue[d] to reject the use of [the Navneet data] for the purposes of calculating surrogate financial ratios.” Id. at 19.

In this action, AASPS continues to challenge Commerce's selection of the Sundaram data as the best available information and Commerce's decision not to use the Navneet data. Plaintiff's Comments at 1–2.

III

STANDARD OF REVIEW

The court will hold unlawful a determination by Commerce resulting from an administrative review of an antidumping duty order if that determination is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); see 19 U.S.C. § 1516a(a)(2)(B)(iii).

“Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion.” Aimcor v. United States, 154 F.3d 1375, 1378 (Fed.Cir.1998) (quoting Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984)). “[T]he possibility of drawing two inconsistent conclusions from the evidence does not prevent an administrative agency's finding from being supported by substantial evidence.” Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 620, 86 S.Ct. 1018, 16 L.Ed.2d 131 (1966).

This inquiry must consider “the record as a whole, including evidence that supports as well as evidence that ‘fairly detracts from the substantiality of the evidence.’ ” Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed.Cir.2003) (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed.Cir.1984)). While contradictory evidence is considered, “the substantial evidence test does not require that there be an absence of evidence detracting from the agency's conclusion, nor is there an absence of substantial evidence simply because the reviewing court would have reached a different conclusion based on the same record.” Cleo Inc. v. United States, 501 F.3d 1291, 1296 (Fed.Cir.2007) (citing Universal Camera Corp. v....