Fuwei Films (Shandong) Co., Ltd. v. United States , 895 F. Supp. 2d 1332 ( 2013 )

Slip Op. 13-10
UNITED STATES COURT OF INTERNATIONAL TRADE
FUWEI FILMS (SHANDONG) CO., LTD.,
Plaintiff,
Before: Leo M. Gordon, Judge
v.
Consol. Court No. 11-00061
UNITED STATES,
Defendant.
OPINION
[Remand results sustained.]
Dated: January 24, 2013
David J. Craven, Riggle & Craven, of Chicago, IL, for Plaintiffs Fuwei Films
(Shandong) and Shaoxing Xiangyu Green Packing Co., Ltd.
David F. D’Alessandris, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, DC, for Defendant United States.
With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney
General, Jeanne E. Davidson, Director and Patricia M. McCarthy, Assistant Director. Of
Counsel on the brief was Whitney Rolig, Office of the Chief Counsel for Import
Administration, International Trade Administration, Department of Commerce, of
Washington, DC.
Ronald I. Meltzer, Patrick J. McLain, David M. Horn, and Jeffrey I. Kessler,
Wilmer, Cutler, Pickering, Hale and Door, LLP, of Washington, DC, for Defendant-
Intervenors DuPont Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray
Plastics (America), Inc.
Gordon, Judge: This consolidated action involves an administrative review
conducted by the U.S. Department of Commerce (“Commerce”) of the antidumping duty
order covering Polyethylene Terephthalate (“PET”) Film from the People’s Republic of
China. See Polyethylene Terephthalate Film from the People’s Republic of China,
Consol. Court No. 11-00061 Page 2
76 Fed. Reg. 9,753 (Dep’t of Commerce Feb. 22, 2011) (“Final Results”) and
accompanying Issues and Decision Memorandum, A-570-924 (Feb. 14, 2011), available
at http://ia.ita.doc.gov/frn/summary/prc/2011-3909-1.pdf (last visited this date)
(“Decision Memorandum”). Before the court are the Final Results of Redetermination,
Oct. 15, 2012, ECF No. 70, (“Remand Results”), filed by Commerce pursuant to Fuwei
Films (Shandong) Co. v. United States, 36 CIT ___, 837 F. Supp. 2d 1347 (2012)
(“Fuwei”). The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006), 1 and 28 U.S.C.
§ 1581(c) (2006). For the reasons set forth below, the Remand Results are sustained.
I. Standard of Review
For administrative reviews of antidumping duty orders, the court sustains
determinations, findings, or conclusions of the U.S. Department of Commerce unless
they are “unsupported by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing
agency determinations, findings, or conclusions for substantial evidence, the court
assesses whether the agency action is reasonable given the record as a whole. Nippon
Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). Substantial
evidence has been described as “such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United
1
Further citation to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2006 edition.
Consol. Court No. 11-00061 Page 3
States, 407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305
U.S. 197, 229 (1938)). Substantial evidence has also been described as “something
less than the weight of the evidence, and the 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 (1966). Fundamentally, though, “substantial evidence” is best understood as a
word formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative
Law and Practice § 9.24[1] (3d. ed. 2012). Therefore, when addressing a substantial
evidence issue raised by a party, the court analyzes whether the challenged agency
action “was reasonable given the circumstances presented by the whole record.”
Edward D. Re, Bernard J. Babb, and Susan M. Koplin, 8 West's Fed. Forms, National
Courts § 13342 (2d ed. 2012).
II. Discussion
Familiarity with the court’s decision in Fuwei is presumed. In the Final Results
Commerce sourced data from the Indian Harmonized Tariff System (HTS) categories
3907.60.10 and 3907.60.20 to derive a surrogate value for the PET chips of
respondents, Fuwei Films (Shandong) Co., Ltd., and Shaoxing Xiangyu Green Packing
Co., Ltd. (collectively “Respondents”). Decision Memorandum at 12-16. In Fuwei
Respondents persuaded the court that Commerce’s reliance on HTS category
3907.60.20, as opposed to 3907.60.10 alone, was unreasonable given the
administrative record (unsupported by substantial evidence). Fuwei, 36 CIT at ___,
Consol. Court No. 11-00061 Page 4
837 F. Supp. 2d at 1356-57. The court remanded the issue to Commerce to clarify or
reconsider its use of Indian Harmonized Tariff System (HTS) category 3907.60.20 in
calculating a surrogate value for Respondents’ PET chips. Id., 36 CIT at ___, 837 F.
Supp. 2d at 1358-59.
At the same time, the court found wanting the argument of petitioners, DuPont
Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray Plastics (America),
Inc. (collectively “DuPont”), that HTS category 3907.60.20 was the one proper data
source. Id., 36 CIT at ___, 837 F. Supp. 2d at 1356-57. During the immediately prior
administrative proceeding the “DuPont Group” (consisting of the participating mandatory
respondent, DuPont Teijin Films China Limited, together with DuPont Teijin Hongji Films
Ningbo Co., Ltd., and DuPont-Hongji Films Foshan Co., Ltd.—all apparent affiliates of a
petitioner here, DuPont Teijin Films), persuaded Commerce that HTS 3907.60.10, not
3907.60.20, was the proper data source by identifying different testing standards in
China (ISO) and India (ASTM). See id., 36 CIT at ___, 837 F. Supp. 2d at 1354-55. In
Fuwei DuPont failed to account for that prior successful litigating position, arguing,
unconvincingly, that the administrative record did not support use of the ISO standard in
China despite the record containing the same information that DuPont’s affiliates
submitted in the investigation. Id., 36 CIT at ___, 837 F. Supp. 2d at 1356-57. The
court noted the prior litigating position and concluded DuPont’s argument lacked merit.
Id. (“At the outset, the court must note that DuPont has assumed a somewhat difficult
position by arguing that HTS 3907.60.20 constitutes the only proper dataset (for
Consol. Court No. 11-00061 Page 5
Respondents PET Chips) shortly after the DuPont Group successfully argued in the
investigation that HTS 3907.60.10 is the only proper dataset (for the DuPont Group's
PET chips”).
On remand, Commerce determined that all of Fuwei’s and Green Packing’s PET
chips were properly classified under Indian HTS category 3907.60.10. Remand Results
at 19. Commerce found that the intrinsic viscosity for all of Fuwei’s and Green
Packing’s PET chips had been tested using the ISO 1:1 methodology. Commerce
based its determination on this Court’s decision that Commerce reasonably inferred
from the record that the ISO 1:1 test was used in China. Id. (citing Fuwei, 36 CIT at ___,
837 F. Supp. 2d. at 1356). Commerce also inferred that Indian Customs uses the
ASTM 3:2 methodology. Commerce determined that all of Fuwei’s and Green
Packing’s PET chips would fall within the range for Indian HTS 3907.60.10 once the
intrinsic viscosities were converted from ISO 1:1 to ASTM 3:2. Commerce therefore
reasonably determined from the administrative record that Indian HTS 3907.60.10 was
the best available information for valuing Fuwei’s and Green Packing’s PET chips.
Remand Results at 11-19, 26-35.
DuPont continues to challenge Commerce’s determination that HTS category
3907.60.10 is the “best available information,” 19 U.S.C. § 1677b(c)(1), for
Respondents’ PET chips. DuPont, however, now argues that the administrative record
does not support that the ASTM standard is used in India (as opposed to its previous
argument that ISO is not used in China). The court again concludes DuPont’s argument
Consol. Court No. 11-00061 Page 6
lacks merit. In the Remand Results Commerce reminded DuPont that it was the Dupont
Group who stated in the investigation, “The ASTM test method is the prevailing
standard in many countries, including India.” Remand Results at 30.
DuPont attempts to explain this away, suggesting that the DuPont Group’s
statement did not reflect first-hand knowledge and only indicated a litigation position
from a prior proceeding with a separate record and separate findings. Def.-Int. Cmts.
Objecting to Commerce’s First Remand Redetermination at 13-14, ECF No. 85
(“DuPont Br.”). Problematically for DuPont, the administrative record here does not
demonstrate that Indian Customs uses any other testing method, such as the ISO 1:1
test used in China. Id. at 18. As is the case with many antidumping issues, the record
is open to interpretation. DuPont had an additional 18 months between the publication
of the Final Results and Commerce’s remand questionnaires to acquire and submit
record evidence that the ISO standard is used in India, as well as to clarify and correct
for Commerce, the other interested parties, and the court, the prior successful litigating
position of its affiliate the DuPont Group (for example, explaining whether the
certifications accompanying the DuPont Group’s prior submissions, see 19 C.F.R.
§ 351.303(g), were valid and made in good faith). It did not.
DuPont also argues that “[n]o reasonable mind could infer from” the record
evidence “that the ASTM method is the only testing method used by Indian Customs.”
DuPont Br. at 13. Just as it did when challenging Commerce’s inference that the ISO
standard is generally used in China, DuPont again erroneously assumes that the
Consol. Court No. 11-00061 Page 7
reasonableness of Commerce’s findings with respect to the utilization of ASTM in India
depend on absolutes and evidentiary exactitude. See Fuwei, 36 CIT at ___, 837 F.
Supp. 2d at 1355-56. As the court previously explained, “the statute does not require,
nor have the courts imposed, a requirement of evidentiary exactitude for Commerce’s
surrogate valuations.” Id., 36 CIT at ___, 837 F. Supp. 2d at 1356. And judicial review
of “Commerce’s action here does not depend on absolutes like always or never, but
instead on whether Commerce’s inference about [India’s ASTM utilization] is reasonable
given the information on the administrative record.” Id. Here, it is. Commerce carefully
considered and explained the record evidence, as well as the lack of evidence
supporting DuPont’s other preferred outcomes. Remand Results at 26-35.
Commerce’s determination that Indian HTS 3907.60.10 was the best available
information for valuing PET Chips—a result first conceived, argued, and supported by
the DuPont Group—is more than reasonable given the facts and circumstances of the
administrative record, and therefore must be sustained.
III. Conclusion
Commerce’s Remand Results are sustained, and judgment will be entered
accordingly.
/s/ Leo M. Gordon
Judge Leo M. Gordon
Dated: January 24, 2013
New York, New York