Watanabe Group v. United States

Slip Op. 10-139
UNITED STATES COURT OF INTERNATIONAL TRADE
_____________________________________
:
THE WATANABE GROUP, :
:
Plaintiff :
:
v. : Before: Jane A. Restani, Judge
:
UNITED STATES, : Court No. 09-00520
:
Defendant, :
:
and :
:
ASSOCIATION OF AMERICAN :
SCHOOL PAPER SUPPLIERS, :
:
Intervenor-Defendant. :
_________________________________________ :
OPINION
[The plaintiff’s motion for judgment on the agency record is denied.]
Dated: December 22, 2010
Riggle & Craven (David A. Riggle, Lei Wang, and Shitao Zhu) for the plaintiff.
Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia
M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice (Michael D. Panzera), for the defendant.
Wiley Rein, LLP (Alan H. Price, Timothy C. Brightbill, and Maureen E. Thorson)
for the intervenor-defendant.
Restani, Judge: This action—brought before the court on plaintiffs The Watanabe
Group’s (“Watanabe” or “Petitioner”)1 motion for judgment on the agency record pursuant to
1
Watanabe Group consists of Watanabe Paper Products (Shanghai) Co., Ltd., Watanabe
(continued...)
Court No. 09-00520 Page 2
USCIT R. 56.2—challenges the Department of Commerce’s (“Commerce”) final determination
in a periodic review of an antidumping (“AD”) duty order on 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 Second Administrative Review of the
Antidumping Duty Order, 74 Fed. Reg. 63,387, 63,389 (Dep’t Commerce Dec. 3, 2009) (“Final
Results”). For the reasons stated below, the court affirms Commerce’s final results and denies
Watanabe’s motion for judgment on the agency record.
BACKGROUND
In September 2006, Commerce published its less than fair value (“LTFV”)
determination resulting in an AD duty order. 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 (Dep’t Commerce Sept. 28,
2006) (“LTFV Determination”). In September 2008, Commerce initiated the second
administrative review of that order at the request of the American Association of School Paper
Suppliers to examine entries of lined paper products from the PRC produced or exported by
another entity (which was later dropped) and Watanabe for the period of review (“POR”) from
September 1, 2007 through August 31, 2008. Initiation of Antidumping and Countervailing
1
(...continued)
Paper Products (Linqing) Co., Ltd., and Hotrock Stationary (Shenzen) Co., Ltd. Mem. in Supp.
of Mot. for J. on the Agency R. Submitted by Pl. The Watanabe Group, Pursuant to Rule 56.2 of
the Rules of the U.S. Court of International Trade (“Pl.’s Br.”) 1.
Court No. 09-00520 Page 3
Duty Administrative Reviews and Deferral of Administrative Review, 73 Fed. Reg. 64,305,
64,306 (Dep’t Commerce Oct. 29, 2008).
Commerce asked Watanabe to respond to Sections A, C, and D of Commerce’s
AD questionnaire. App. to the Resp. Br. of Association of American School Paper Suppliers
(“AASPS’s App.”) Tab 4. Watanabe responded that it had not exported merchandise during the
POR. See id. Tab 5. Commerce informed Watanabe that subject merchandise produced or
exported by Watanabe had entered the U.S. market during the POR. See id. Tab 6, at 1.
Watanabe replied that all shipments but one were non-subject merchandise and the remaining
shipment was shipped just prior to the POR.2 See id. Tab 7. Commerce countered that the
subject merchandise entered the United States during the POR. See id. Tab 8. Watanabe argued
that the date of entry was irrelevant. See id. Tab 9, at 2–3. Commerce clarified that it evaluates
subject merchandise based on entry, not sale. See id. Tab 10. Watanabe answered three
questions put to it by Commerce by stating that the date of sale was prior to the POR, no subject
merchandise was sold during the POR, it had no reviewable sales, and all other questions by
Commerce were inapplicable. See id. Tab. 11. Commerce again clarified that the sales to be
reviewed for the POR were identified by entry date and granted Watanabe’s request for an
extension. See id. Tab 12; Tab 13. In May 2009, Watanabe informed Commerce that it would
not respond. See id. Tab 14; Tab 15.
Commerce published its preliminary results, finding Watanabe to be part of the
2
The parties agree that the merchandise was shipped before September 1, 2007, but
dispute the exact date. Any discrepancy is immaterial because, as will be discussed, the date
upon which the merchandise was shipped is irrelevant.
Court No. 09-00520 Page 4
PRC-wide entity based on its failure to respond to Commerce’s questionnaire or to submit a
certification of data supporting a rate separate from that of the PRC-wide entity. Certain Lined
Paper Products From the People’s Republic of China: Notice of Preliminary Results of the
Antidumping Duty Administrative Review, 74 Fed. Reg. 36,662, 36,663 (Dep’t Commerce July
24, 2009. In November 2009, Commerce published its Final Results, continuing to find that
Watanabe had sold goods immediately prior to the POR but that those goods had entered the
U.S. market during the POR, that Watanabe had failed to respond to Commerce’s questions and
was therefore deemed part of the PRC-wide entity, and that adverse inferences were warranted
with respect to selection of an AD duty rate. Final Results, 74 Fed. Reg. at 63,389–90; Issues
and Decisions for the Final Results of the Second Amin. Review of the Antidumping Duty Order
on Certain Line Paper Products from the People’s Republic of China (Final Results), A-570-901,
POR 09/01/2007-08/31/2008, at 4, 13–15 (Nov. 23, 2009) (“Iss. & Dec. Memo.”), available at
http://ia.ita.doc.gov/frn/summary/PRC/E9-28769-1.pdf (last visited Dec. 21, 2010). Commerce
assigned a rate of 258.21% to the PRC-wide entity and to Watanabe. Iss. & Dec. Memo. at 15.
In July 2010, Watanabe moved for judgment on the agency record.
JURISDICTION & STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will uphold
Commerce’s final results in dumping reviews 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).
Court No. 09-00520 Page 5
DISCUSSION
I. Subject Merchandise Is Reviewed by Entry
Watanabe contends that Commerce, absent a sale, must rescind the administrative
review because 1) the regulation prevents Commerce from using the date of entry to select sales
to be reviewed, and 2) Commerce double-counted. Pl.’s Br. 10. This claim lacks merit.
First, Watanabe claims that Commerce’s regulation does not permit Commerce to
consider transactions for merchandise sold prior to the POR but which entered the United States
during the POR. Pl.’s Br. 10. The regulation provides that Commerce “may rescind an
administrative review . . . if the Secretary concludes that, during the period covered by the
review, there were no entries, exports, or sales of the subject merchandise.”3 19 C.F.R.
§ 351.213(d)(3). Additionally, Commerce reviews “entries, exports, or sales during the” POR.
19 C.F.R. § 351.213(e)(1)(ii). Watanabe misreads the regulation and this Court’s precedent.
Helmerich & Payne, Inc. v. United States, 24 F. Supp. 2d 304, 312–14 (CIT 1988) (finding
Commerce’s examination of subject merchandise based on entry date valid, regardless of date of
sale); Corus Staal BV v. United States, 387 F. Supp. 2d 1291, 1303 (CIT 2005) (affirming that
Commerce’s “entry-based methodology” is consistent with its practice and in accordance with
law). Here, the commercial invoice shows that the subject merchandise was exported just before
the POR began and plaintiff does not dispute that entry occurred during the POR. Because the
regulation offers three alternatives for selection of sales—entry, export, or sale—Commerce has
3
The statutory basis for the regulation also mentions entries. In determining AD duties,
“the administering authority shall determine -- (i) the normal value and export price (or
constructed export price) of each entry of the subject merchandise, and (ii) the dumping margin
for each such entry.” 19 U.S.C. § 1675(a)(2)(A).
Court No. 09-00520 Page 6
the discretion to choose entries, exports, or sales in determining whether sales activity occurred
during the POR.4 See 19 C.F.R. § 351.213(d)(3).
Second, Watanabe claims that Commerce double-counted the transaction in
question, by examining it in this administrative review and the prior review. Pl.’s Br. 14.
Commerce conducts its reviews, including the prior review, on the basis of entry. Iss. & Dec.
Memo. at 6; see, e.g., Certain Welded Carbon Steel Pipes and Tubes from Thailand: Final
Results of Antidumping Duty Administrative Review, 63 Fed. Reg. 55,578, 55,589 (Dep’t
Commerce Oct. 16, 1998). Additionally, Watanabe’s sales were not individually examined by
Commerce in the prior review because Watanabe was neither a voluntary nor a mandatory
respondent in that review, although it qualified for a separate rate in the earlier review. Iss. &
Dec. Memo. at 6. As Commerce permissibly relied on the date of entry of the subject
merchandise in selecting sales for review and did not double-count any such entry, Commerce’s
decision in this regard is sustained.
II. Application of Adverse Inferences
Watanabe alleges Commerce improperly applied inferences adverse to the
interests of Watanabe. Pl.’s Br. 17. This claim lacks merit.
Commerce may apply adverse facts available (“AFA”) to a party who fails “to
4
Watanabe cites Torrington Co. v. United States, 818 F. Supp. 1563, 1574 (CIT 1993)
for the proposition that the statute requires some “meaningful sale” to or in the U.S. market.
Pl.’s Br. 15 (quoting Torrington, 818 F. Supp. at 1574). Unlike Torrington where the subject
merchandise entered the United States without having been sold and was subsequently re-
exported without sale, the subject merchandise in the instant case was sold, entered the United
States, and remained there. See Torrington, 818 F. Supp. at 1574. Thus, Commerce was
deprived of any basis upon which to calculate a dumping margin. See id. at 1574.
Court No. 09-00520 Page 7
cooperate by not acting to the best of its ability to comply with a request for information.” 19
U.S.C. § 1677e(b). Cooperation means a party must “do the maximum it is able to do” to
comply with the requests, Nippon Steel Corp. v. United States, 337 F.3d 1373, 1382 (Fed. Cir.
2003), if that party “would have known that the requested information was required,” Fujian
Lianfu Forestry Co. v. United States, 638 F. Supp. 2d 1325, 1338 (CIT 2009). Commerce gave
Watanabe multiple opportunities to respond to its request for data. See AASPS’s App. Tab5;
Tab 6; Tab 8; Tab 12; Tab 14. Commerce informed Watanabe when the shipment in question
took place, that its shipment was included in the POR, that an alternative reporting method
existed, and that failure to respond would result in an adverse inference. Id. Tab 8; Tab 12.
Watanabe offered every excuse available: it could not comment because of confidentiality, it did
not know when or where the importer may have entered the merchandise, the shipment was not
part of the POR, and it asked for a deadline extension before informing Commerce it would not
submit a response. See id. Tab 7; Tab 13. Additionally, Watanabe never replied to Commerce’s
questions regarding its relationship with the PRC-wide entity. See id. Tab 11. Its only responses
strongly implied that it possessed data on a sale from just prior to the POR that entered the
United States during the POR. Id. Tab 7. Because Watanabe should have known what
Commerce was seeking and did not do the maximum it could, Commerce’s application of an
inference adverse to the interests of Watanabe was permissible.5
5
Watanabe seems to argue that Commerce may not, and in the instant case did not, apply
an adverse inference prior to determining that a respondent has not fully cooperated. Pl.’s Br.
17–20. This is contrary to the plain facts of the case: Prior to applying an adverse inference,
Commerce found that “Watanabe failed to provide requested information” and that “[i]t is clear
on the record of this case that Watanabe failed to cooperate to the best of its ability in this
(continued...)
Court No. 09-00520 Page 8
Having received no information from Watanabe aside from its denial of
shipments during the POR, Commerce applied adverse inferences in determining that Watanabe
was part of the PRC-wide entity and selecting an AD duty rate. Iss. & Dec. Memo. at 13.
Absent any information on the record, Commerce presumed that this non-compliant respondent
was part of the PRC-wide entity. See Shanghai Taoen Int’l Trading Co. v United States, 360 F.
Supp. 2d 1339, 1348 (CIT 2005) (respondent has the obligation to place some evidence on the
record to dispute an adverse inference). Because the record was empty of all information
regarding Watanabe’s relationship with the PRC-wide entity, here Commerce permissibly chose
to find the respondent to be part of the PRC-wide entity.6
III. Corroboration of the PRC-wide Rate
Watanabe claims Commerce erred in not corroborating the PRC-wide rate, 1) as
to Watanabe,7 and 2) as to the PRC-wide entity.8 See Pl.’s Br. 23–31. This claim lacks merit.
5
(...continued)
administrative review.” Iss. & Dec. Memo. at 8, 11.
6
Watanabe does not seem to contest Commerce’s determination that it is part of the
PRC-wide entity, only that Commerce made an impermissible adverse inference. See Pl.’s Br.
17–22. Further, Watanabe does not challenge Commerce’s general methodology of requiring
exporters to demonstrate entitlement to a rate separate from that of the PRC-wide entity in each
period that is reviewed.
7
Watanabe argues that, because it received a rate of 22.35% as a separate rate
respondent in a prior review, Commerce’s application of 258.12% to it through the PRC-wide
entity is punitive. Pl.’s Br. 28. First, because Watanabe submitted no evidence it is impossible
to decide that something other than its prior rate is punitive as to Watanabe. Second, no party has
placed evidence on the record suggesting that the PRC-wide rate is punitive as to the PRC-wide
entity. Issues and Decision Memorandum for the Less-Than-Fair Value Investigation of Certain
Lined Paper Products from the People’s Republic of China, A-570-901, POI
01/01/2005-06/30/2005, at 38 (Aug. 30, 2006) (“LTFV Iss. & Dec. Memo.”), available at
http://ia.ita.doc.gov/frn/summary/PRC/06-7538-1.pdf (last visited Dec. 21, 2010); Final Results,
(continued...)
Court No. 09-00520 Page 9
Watanabe alleges that Commerce did not corroborate the PRC-wide rate as to
Watanabe because the rate chosen bore no rational relationship to Watanabe. Pl.’s Br. 23–28.
Where Commerce has found the respondent part of the PRC-wide entity based on adverse
inferences, Commerce need not corroborate the PRC-wide rate with respect to information
specific to that respondent because there is “no requirement that the PRC-wide entity rate based
on AFA relate specifically to the individual company.” Peer Bearing Co.-Changshan v. United
States, 587 F. Supp. 2d 1319, 1327 (CIT 2008); Shandong Mach. Imp. & Exp. Co. v. United
States, Slip Op. 09-64, 2009 WL 2017042, at *8 (CIT June 24, 2009) (Commerce has no
obligation to corroborate the PRC-wide rate as to an individual party where that party has failed
to qualify for a separate rate). Commerce’s permissible determination that Watanabe is part of
the PRC-wide entity means that inquiring into Watanabe’s separate sales behavior ceases to be
meaningful.
Watanabe argues for the application of recent Federal Circuit precedent, which
7
(...continued)
74 Fed. Reg. at 63,390. Thus, the application of PRC-wide rate of 258.12% is not demonstrated
to be punitive.
8
Watanabe states that the “Adverse Facts Available rate selected by Commerce and
applied to Watanabe (258.21%) was not supported by substantial evidence.” Pl.’s Br. 23. As
indicated, Commerce did not apply a separate AFA rate to Watanabe, but rather applied the
PRC-wide rate through adverse inferences. Iss. & Dec. Memo. at 13. These are two distinct
legal concepts: a separate AFA rate applies to a respondent who has received a separate rate but
has otherwise failed to cooperate fully whereas the PRC-wide rate applies to a respondent who
has not received a separate rate. See Since Hardware (Guangzhou) Co. v. United States, Slip
Op. 10-108, 2010 WL 3982277, at *8 (CIT Sept. 27, 2010). This Court assumes that Watanabe
argues Commerce failed to corroborate the PRC-wide rate as to Watanabe given Watanabe’s
insistence that Commerce must rely on primary information, AFA rates must bear a rational
relationship to the respondent, and AFA rates cannot be punitive. See Pl.’s Br. 23–28.
Court No. 09-00520 Page10
found that “Commerce may not select unreasonably high rates having no relationship to the
respondent’s actual dumping margin.” Pl.’s Br. 24 (quoting Gallant Ocean (Thai.) Co. v. United
States, 602 F.3d 1319, 1323 (Fed. Cir. 2010)). This misreads Gallant, a separate AFA rate case,
which clearly states that an “AFA rate must be a reasonably accurate estimate of the
respondent’s actual rate.” Gallant, 602 F.3d at 1323 (internal quotation marks omitted)
(emphasis added). If a respondent receives an AFA rate separate from that of the PRC-wide
entity, that respondent has presented a separate rate certification to Commerce and has
established its separate identity.9 Since Hardware, 2010 WL 3982277, at *8 (finding that “[i]f
the record supports application of a separate rate, Commerce must determine a separate AFA rate
. . . ; if not, Commerce may apply the PRC-wide rate”). Here, Gallant does not apply in the
manner asserted by Watanabe because Commerce has determined Watanabe to be part of the
PRC-wide entity and therefore Watanabe has not received a separate AFA rate.10
Watanabe also alleges that Commerce failed to corroborate the PRC-wide rate
generally. Pl.’s Br. 28–30. Having intentionally left the record for this administrative review
void of any evidence, Watanabe now asks this Court to require Commerce to corroborate the
9
An alternative way of viewing this relationship is that it is the PRC-wide entity that
initially receives the AFA rate for its failure to respond and where a respondent has been
determined to be part of the PRC-wide entity the individual respondent receives that rate either
because it accepts that such a rate applies or it does not successfully establish its separateness.
Therefore, the underlying principle of Gallant applies insofar as it requires the AFA rate to be a
reasonably accurate estimate of the PRC-wide entity’s actual rate.
10
Watanabe’s reliance on other AFA rate cases is similarly misplaced as an adverse
factual inference does not necessarily mean the receipt of a separate AFA rate. See, e.g., Timken
Co. v. United States, 354 F.3d 1334 (Fed. Cir. 2004); F.lli De Cecco Di Filippo Fara S. Martino
S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000); Shandong Huarong Gen. Grp. Corp. v.
United States, 31 CIT 42 (2007).
Court No. 09-00520 Page11
PRC-wide rate. Corroboration requires the use of independent sources to confirm the validity of
secondary information. 19 U.S.C. § 1677e(c). Here, Commerce selected the highest rate from
an earlier segment of the proceeding: the petition rate corroborated in the LTFV Determination.
See Final Results, 74 Fed. Reg. at 63,390; LTFV Iss. & Dec. Memo. at 38. Neither Watanabe
nor any other party has placed any evidence on the record calling into doubt the petition rate or
Commerce’s corroboration. Final Results, 74 Fed. Reg. at 63,390. With no evidence specific to
this review and no evidence questioning the prior corroboration of the PRC-wide rate,
Commerce may rely on the corroborated rate from an earlier segment of the proceeding because
doing so is based on a reasonable inference from the current record. See Ocean Harvest
Wholesale, Inc. v. United States, 26 CIT 358, 370 n.21 (2002) (permitting Commerce to use a
petition rate corroborated in the investigation where no new evidence discredits that rate); Peer
Bearing, 587 F. Supp. 2d at 1328 (“the reliability of [the corroborated rate] stems from its basis
in prior verified information in previous administrative reviews”); cf. Rhone Poulenc, Inc. v.
United States, 899 F.2d 1185, 1190–91 (Fed. Cir. 1990) (permitting Commerce to make a
presumption where the respondent has failed to place any evidence on the record).
Commerce correctly assigned the PRC-wide rate to Watanabe because Commerce
was not in a position to corroborate that rate with information specific to Watanabe and there is
nothing to demonstrate that Commerce did not sufficiently corroborate the rate as to the PRC-
wide entity in an earlier proceeding. Thus, Commerce’s decision is affirmed.
Court No. 09-00520 Page12
CONCLUSION
For all the foregoing reasons, the court sustains Commerce’s final results.
Plaintiff’s motion for judgment on the agency record is denied.
/s/ Jane A. Restani
Jane A. Restani
Judge
Dated: This 22nd day of December, 2010.
New York, New York.