Navneet Publications (India) Ltd. v. United States
| Decision Date | 22 July 2014 |
| Docket Number | Slip Op. 14–87.,Court No. 13–00204. |
| Parties | NAVNEET PUBLICATIONS (INDIA) LTD., Marisa International, Super Impex, Pioneer Stationary Pvt. Ltd., SGM Paper Products, Lodha Offset Limited, and Magic International Pvt. Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Association of American School Paper Suppliers, Defendant–Intervenor. |
| Court | U.S. Court of International Trade |
Neil R. Ellis, Richard L.A. Weiner, and Rajib Pal, Sidley Austin LLP, of Washington, DC, for plaintiffs.
Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Elika Eftekhari, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Alan H. Price, Timothy C. Brightbill, and Maureen E. Thorson, Wiley Rein LLP, of Washington, DC, for defendant-intervenor.
In this action, Plaintiffs Navneet Publications (India) Ltd. (“Navneet”), Marisa International, Super Impex, Pioneer Stationary Pvt. Ltd., SGM Paper Products, Lodha Offset Limited, and Magic International Pvt. Ltd. (collectively, “Plaintiffs”) raise various challenges to the all-others rate that the U.S. Department of Commerce (“Commerce”) imposed in the fifth administrative review of the antidumping duty order on certain lined paper products from India. See Certain Lined Paper Products from India, 78 Fed.Reg. 22,232 (Dep't Commerce Apr. 15, 2013) (final admin. review) (“Final Results ”). Plaintiffs have moved for judgment on the agency record pursuant to USCIT Rule 56.2. See Pls.' Mot. for J. on Agency R., ECF No. 34 . For reasons discussed below, the court grants Plaintiffs' motion in part and remands a portion of Commerce's Final Results.
On October 31, 2011, Commerce initiated an administrative review of the antidumping duty order on certain lined paper products from India. See Initiation of Antidumping and Countervailing Duty Administrative Reviews, 76 Fed.Reg. 67,133 (Dep't Commerce Oct. 31, 2011). The review period ran from September 1, 2010 through August 31, 2011 and covered fifty-seven Indian producers and exporters of the subject merchandise. Id. at 67,134 –35.
As part of its respondent selection process, Commerce issued quantity and value (“Q & V”) questionnaires to thirteen of the firms for which a review had been initiated. Commerce selected the firms on the basis of Customs and Border Protection data documenting companies that imported subject merchandise into the United States during the review period. See Resp't Selection Mem. 4, PD 61 at bar code 3053175–01 (Jan. 20, 2012), ECF No. 30 (July 23, 2013) (“Resp't Selection Mem. ”). Only eight of the companies responded to the Q & V questionnaires. Id. One company that responded, Plaintiff Navneet, had also requested individual examination as either a mandatory or voluntary respondent. Voluntary Resp't Request 1–2, PD 14 at bar code 3043588–01 (Nov. 29, 2011), ECF No. 30 (July 23, 2013).
Commerce determined that it could not individually examine all fifty-seven companies subject to the review and instead limited its review to the two respondents accounting for the largest known volume of subject merchandise. Resp't Selection Mem. 8. The two individually investigated respondents were Riddhi Enterprises (“Riddhi”) and SAB International (“SAB”), and Commerce preliminarily assigned those companies weighted average dumping margins of 3.86% and 2.30%, respectively. See Certain Lined Paper Products from India, 77 Fed.Reg. 61,381, 61,382 (Dep't Commerce Oct. 9, 2012) (prelim. admin. review) (“Preliminary Results ”).
In the Preliminary Results, Commerce also applied an adverse facts available (“AFA”) rate of 36.27% to the five companies that failed to respond to Commerce's Q & V questionnaires. Id. The AFA rate derived from the highest non-aberrational margin calculated for mandatory respondent Riddhi during the review. See Prelim. AFA Mem. 1, PD 140 at bar code 3099879–01 (Oct. 1, 2012), ECF No. 30 (July 23, 2013). For the remaining companies that were neither individually investigated nor subject to an AFA rate (including all Plaintiffs), Commerce preliminarily calculated an all-others rate of 3.36%. Preliminary Results, 77 Fed.Reg. at 61,382. Relying on 19 U.S.C. § 1673d(c)(5)(A) (2006), Commerce arrived at the all-others rate by weight averaging the weighted average dumping margins of Riddhi and SAB. See Preliminary Results at 61,382 n. 1. That statute governs the calculation of all-others rates in investigations, which are usually based on individually investigated respondent rates unless those rates are zero, de minimis, or based entirely on facts available. See 19 U.S.C. § 1673d(c)(5)(A).
Navneet subsequently submitted a rebuttal brief, anticipating that both Riddhi's and SAB's margins might fall below a de minimis threshold in the Final Results and that Commerce would need to use an alternative all-others rate methodology. See Navneet Rebuttal Br. 1, PD 172 at bar code 3109445–01 (Dec. 7, 2012), ECF No. 30 (July 23, 2013) (“Navneet Rebuttal Br. ”). In its brief, Navneet requested that Commerce continue to calculate the all-others rate by averaging Riddhi's and SAB's rates, even if those rates later became zero or de minimis. Id. Navneet advocated this method because it believed that it would have received a zero margin if individually reviewed. Id. at 9. In support, Navneet argued that (1) it would have received zero margins in all other reviews if not for Commerce's prior practice of zeroing negative dumping margins, and (2) Navneet's sales and pricing patterns probably closely resembled those of Riddhi and SAB because it self-requested review. Id. at 9–10.
Commerce published the Final Results of its review on April 15, 2013. See 78 Fed.Reg. at 22,232. As Navneet anticipated, Commerce revised the margins for Riddhi and SAB down to zero. See id. at 22,234. Commerce also calculated a new AFA rate of 22.02% (again, based on Riddhi data) and reduced the number of uncooperative respondents subject to that AFA rate to four. Id. However, Commerce did not adopt Navneet's proffered method for calculating the all-others rate. Instead of assigning the remaining fifty-one companies a margin of zero percent, Commerce calculated a margin of 11.01%—the simple average of the zero percent rates assigned to the two mandatory respondents and the 22.02% AFA rates assigned to two of the uncooperative respondents. Id. at 22,233. The instant case ensued.
This Court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and must uphold Commerce's determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with the law.” 19 U.S.C. § 1516a(b)(1)(B)(i). Record evidence is substantial if a reasonable mind would accept it as adequate to support a conclusion. Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed.Cir.2003). The Court reviews the substantiality of the evidence “by considering 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. 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) ).
The Court applies the rubric established in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 842–43, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), to assess whether Commerce's statutory construction accords with law. Specifically, the Court determines whether Congress has directly spoken to the question at issue. Id. If Congress's intent is clear, the Court must give effect to that unambiguously expressed intent. Id. However, if the statute is silent or ambiguous, the Court assesses whether Commerce's interpretation “is based on a permissible construction of the statute.” Id. at 843, 104 S.Ct. 2778.
Plaintiffs raise two challenges to Commerce's calculation of the all-others rate in this review. Plaintiffs first contend that Commerce unlawfully incorporated an AFA rate assigned to uncooperative, uninvestigated respondents into the all-others rate calculation. Plaintiffs alternatively assert that the all-others rate did not reflect economic reality for uninvestigated respondents and that Commerce's methodology was, thus, unreasonable. As set forth below, the court denies Plaintiffs' motion as it pertains to the first issue, but agrees that Commerce did not support its all-others rate with substantial evidence and remands for further consideration.
In administrative reviews, Commerce “review[s] ... and determine[s] ... the amount of any antidumping duty” and assesses final duties for companies for which a review has been requested. 19 U.S.C. § 1675(a)(1)(B). However, Commerce need not investigate every company subject to a review if Commerce reasonably determines that calculation of individual dumping margins is not practicable due to the large number of respondents. Id. § 1677f–1(c)(2). If Commerce reaches that conclusion, it may limit its review to a sample of mandatory respondents (often accounting for the largest export volumes of subject merchandise). See id.
To arrive at margins for uninvestigated, cooperative respondents, Commerce calculates an all-others rate using the methodology found at 19 U.S.C. § 1673d(c)(5). Although § 1673d(c)(5) expressly applies only to investigations, Commerce also uses that statute to inform its analysis in administrative reviews. See I & D Mem. 13, PD 188 at bar code 3129602–01 (Apr. 9, 2013), ECF No. 30 (July 23,...
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