Slip Op. 10-7
UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
ASSOCIATION OF AMERICAN :
SCHOOL PAPER SUPPLIERS, :
:
Plaintiff, :
: Before: WALLACH, Judge
v. : Court No.: 09-00163
:
UNITED STATES, : PUBLIC VERSION
:
Defendant, :
:
and :
:
SHANGHAI LIAN LI PAPER :
PRODUCTS CO., LTD., :
:
Defendant-Intervenor. :
____________________________________:
[Plaintiff’s Motion to Supplement Administrative Record is DENIED.]
Dated: January 25, 2010
Wiley Rein, LLP (Alan Hayden Price) 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
(John J. Todor); and Joanna Theiss, Office of Chief Counsel for Import Administration,
Department of Commerce, Of Counsel, for Defendant United States.
Garvey Schubert Barer (Ronald M. Wisla) for Defendant-Intervenor Shanghai Lian Li Paper
Products Co., Ltd.
OPINION
Wallach, Judge:
I
INTRODUCTION
Plaintiff Association of American School Paper Suppliers (“AASPS”) moves to
supplement the administrative record compiled by the U.S. Department of Commerce
(“Commerce”) in the first administrative review of the antidumping duty order on certain lined
paper products from the People’s Republic of China (“PRC”). The court has jurisdiction
pursuant to 19 U.S.C. § 1581(c). AASPS requested oral argument pursuant to USCIT R.7(c).
This request was DENIED as moot.1 For the reasons set below AASPS’s Motion to Supplement
Administrative Record is denied.
II
BACKGROUND
Commerce entered an antidumping duty order on certain lined paper products from the
People’s Republic of China on September 28, 2006. 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 (September 28, 2006)
(“Antidumping Duty Order.”) On September 28, 2007, Defendant-Intervenor Shanghai Lian Li
Paper Products Co. Ltd. (“Lian Li”) and several other parties requested that Commerce conduct
1
On December 1, 2009, the court denied as moot AASPS’s motion for oral argument. Oral argument was held on
December 7, 2009 and no motion was necessary.
2
an administrative review of the Antidumping Duty Order involving certain lined paper products
from PRC. Memorandum from Marin Weaver, International Trade Compliance Analyst,
China/NME Group, Office 8, to Wendy J. Frankel, Director, Office 8, AD/CVD Operations, Re:
Selection of Respondents for the Antidumping Review of Certain Lined Paper Products from the
People’s Republic of China, (November 7, 2007) Confidential Record (“C.R.”) 1, at 1. On
October 1, 2007, AASPS also requested that Commerce conduct an administrative review related
to the Antidumping Duty Order. Id. In response to these requests, Commerce initiated the first
administrative review of the Antidumping Duty Order on certain lined paper products from PRC
on October 31, 2007. See Initiation of Antidumping and Countervailing Duty Administrative
Reviews, 72 Fed. Reg. 61,621 (October 31, 2007). The period of review for the first
administrative review was April 17, 2006, through August 31, 2007. Id.
In response to Commerce’s request for surrogate value information, Lian Li submitted
the following information on April 1, 2008. See Letter from Garvey Schubert Barer to Hon.
Carlos M. Gutierrez, Secretary of Commerce, U.S. Department of Commerce, Re: Certain Lined
Paper Products from China: Submission of Surrogate Value Information, (April 1, 2008) P.R. 63
(“ Lian Li’s April 1, 2008 Letter”). This submission included: Sundaram Multipap Ltd.’s
(“Sundaram”) 2006-2007 Chairman’s Report; Sundaram’s 2006-2007 Auditor’s Report;
Sundaram’s Accounting Policy Statement; Notes to Accounts; Sundaram’s first quarter results;
and other Sundaram financial data (collectively the “Sundaram Financials”). Id., at 1,
Attachment 4.
Commerce published the preliminary results of the first administrative review on October
7, 2008. Certain Lined Paper Products from the People’s Republic of China: Notice of
3
Preliminary Results of the Antidumping Duty Admin Review, 73 Fed. Reg. 58,540 (October 7,
2008) (“Preliminary Results”). After publishing the Preliminary Results, Commerce sent Lian
Li two additional supplemental questionnaires to which Lian Li submitted responses on October
16 and November 25, 2008. 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,
17,160 (April 14, 2009) (“Final Results”). From January 12 to January 16, 2009, Commerce
conducted verification of Lian Li’s sales information. Id.
On April 14, 2009 Commerce published the Final Results. See Final Results. On April
17, 2009, AASPS filed its Complaint challenging the Final Results. See Complaint. Following
the filing of the Complaint, on July 21, 2009, AASPS filed a motion to supplement the
administrative record to include a copy of Sundaram’s 2006-2007 annual report. See Plaintiff’s
Motion to Supplement Administrative Record (“AASPS’s Motion”).
III
STANDARD OF REVIEW
Except in very limited circumstances, this court’s review of Commerce’s determination is
limited to the record before it. See 19 U.S.C. § 1516a(b)(2)(A). This is because the
administrative record contains all information which was presented to, or obtained by,
Commerce during the course of the administrative review. See e.g., Camp v. Pitts, 411 U.S. 138,
142, 93 S. Ct.1241, 36 L.Ed.2d 106 (1973); Citizens to Preserve Overton Park, Inc. v. Volpe,
401 U.S.420, 91 S.Ct. 814, 28 L.Ed.2d 136 (1971). If the administrative record is complete, the
court’s review of Commerce’s determination is limited to “the record made before the agency
which issued the decision.” S. Rep. No. 96-249, 96th Cong., 1st Sess., at 248 (1979), as reprinted
in 2 Legislative History of the Trade Agreements Act of 1979.
4
The purpose of limiting review to the record actually before the agency is to guard
against courts using new evidence to “convert the . . . standard into effectively de novo review.”
Murakami v. United States, 46 Fed. Cl. 731,735 (2000), aff’d, 398 F.3d 1342 (Fed. Cir. 2005)
(referring to “arbitrary and capricious” standard of review).2 A court considering a request to
supplement an administrative record should determine “whether supplementation of the record
was necessary in order not ‘to frustrate effective judicial review.”’ Axiom Resource Mgmt. v.
United States, 564 F.3d 1374, 1381 (Fed. Cir. 2009) (quoting Camp, 411 U.S. at 142-3) (holding
that court abused its discretion by allowing extra-record evidence without finding that lack of
evidence would frustrate judicial review).
IV
DISCUSSION
AASPS seeks to supplement the administrative record with a copy of Sundaram’s 2006-
2007 annual report. AASPS’s Motion at 4. AASPS’s Motion is denied because: (1) Sundaram’s
2006-2007 annual report was not timely filed by AASPS during the administrative proceeding,
infra Part IV. A ; (2) Sundaram’s 2006-2007 annual report was publicly available during the
administrative proceeding, infra Part IV, B ; and (3) AASPS has not demonstrated that the
existing administrative record is so incomplete as to frustrate meaningful review by this court,
infra Part IV. C.
2
The standard applied by the court to review factual findings made by Commerce during the course of antidumping
proceedings is whether those findings are supported by “substantial evidence.” See 19 U.S.C. § 1516a(b)(1)(B)(i).
Even though the arbitrary and capricious standard requires a different level of scrutiny than the substantial evidence
standard, see KYD Inc. v. United States, 613 F. Supp. 2d 1371,1375 n. 4, 31 ITRD 1261, CIT (2009), the Federal
Circuit ‘s rationale in Murakami applies here as well. This is because the “substantial evidence” standard of review
like the “arbitrary and capricious” standard, does not permit the court to conduct a de novo review; there is no
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. NLRB, 340 U.S. 474, 487-88, 71 S. Ct. 456, 95 L. Ed. 456 (1951)) (emphasis added).
5
A
AASPS Was Not Timely In Its Request To Supplement The Administrative Record
AASPS did not submit in a timely fashion the Sundaram 2006-2007 annual report it now
seeks to add to the administrative record. Commerce’s regulations provide detailed deadlines for
the submission of factual information during an antidumping proceeding. See 19 C.F.R. §
351.301(b)(2). Specifically, “[f]or the final results of an administrative review,” “a submission
of factual information is due no later than: . . . 140 days after the last day of the anniversary
month.” Id. Accordingly, because the anniversary month was September 2006,3 the deadline for
AASPS to submit the Sundaram 2006-2007 annual report to Commerce was February 17, 2008.
AASPS did not comply with this deadline.
Lian Li submitted the Sundaram Financials to Commerce on April 1, 2008. Lian Li’s
April 1, 2008 Letter. While this date is past the February 17, 2008 deadline for information
submissions mandated by 19 C.F.R. § 351.301(b)(2), AASPS could have still submitted
additional information to rebut the Sundaram Financials by asking Commerce for permission to
submit information. See 19 C.F.R. § 351.301(c)(1). 19 C.F.R. § 351.301(c)(1) sets the time
limits for certain submissions for rebuttal, clarification, or correction of factual information. Id.
(“Any interested party may submit factual information to rebut, clarify, or correct factual
information submitted by any other interested party at any time prior to the deadline provided . . .
for submission of such factual information.”). AASPS did not submit any factual information
related to the 2006-2007 Sundaram annual report throughout the investigation.
3
For purposes of 19 C.F.R. § 351.302(b), the anniversary month is the calendar month in which the anniversary of
the date of publication of an order or suspension of investigation occurs. On September 28, 2006, Commerce
entered an antidumping duty order on certain lined paper products from the PRC. Antidumping Duty Order, 71 Fed.
Reg. 56,949.
6
While AASPS discussed the Sundaram Financials in its March 6, 2009 case brief, it
neither sought to admit any information related to the 2006-2007 Sundaram annual report nor
provided any factual evidence to rebut the Sundaram Financials. See Association of American
School Paper Suppliers, Certain Lined Paper Products from the People’s Republic of China:
Case Brief, Inv. No. A-570-901 (March 6, 2009) C.R. 35, at 49-55. Indeed, AASPS admits that
it did not make any attempt to obtain Sundaram’s annual report during the administrative review,
“because it was not in its interest to do so.” Letter from Timothy Brightbill, Wiley Rein, to Hon.
Evan J. Wallach, U.S. Court of International Trade, Re: Availability of 2006-2007 Annual
Report of Sundaram Multi Pap Ltd (December 22, 2009) (“AASPS’s December 22, 2009
Letter”) at 1 (emphasis added). AASPS did not timely submit the 2006-2007 Sundaram annual
report to Commerce and cannot supplement the administrative record with that information now
that the submission period and general investigation are completed.
B
AASPS Has Not Demonstrated That Supplementation Of The Record Is Necessary Because
The Information AASPS Seeks To Add To The Administrative Record Is Not New And
Circumstances Have Not Changed Since The Administrative Review
This court has in certain unique factual situations recognized various circumstances in
which parties are allowed to supplement the administrative record certified by the agency.4 A
party may supplement the administrative record in the following circumstances: when at the time
4
Courts may also expand review beyond the record or permit discovery: when the party demonstrates that there is a
strong basis to believe that materials considered by the agency decision makers are not in the record, see e.g.,
Ammex, Inc. v. United States, 23 CIT 549, 556-57, 62 F. Supp. 2d 1148 (1999); Sachs Auto. Prods. Co. v. States, 17
CIT 290, 293 (1993); Saha Thai Steel Pipe Co., Ltd. v. United States, 11 CIT 257, 260-61, 661 F. Supp. 1198
(1987); to obtain background information necessary for the court to make an informed decision Animal Defense
Council v. Hodel, 840 F.2d 1432, 1436 (9th Cir. 1988); and to explain the existing record and judge the adequacy of
the procedures and facts considered, Former Employees of Pittsburgh Logistics Sys., Inc. v. United States Sec’y of
Labor, 27 CIT 339, 343 (2003). Those alleging government bad faith must rebut the presumption “that public
officials act in good faith when discharging their duties” through clear and convincing evidence. SKF USA Inc. v.
United States, 29 CIT 969, 971, 391 F. Supp. 2d 1327(2005).
7
that supplementation of the record is sought, there is new, changed, or extraordinary information
available that was not available during the investigation, see Beker Indus. Corp. v. United States,
7 CIT 313, 318 (1984); and when the party makes a strong showing of bad faith or improper
behavior by agency decision makers. See F.l: De Cecco di Filippo Fara San Marino S.p.A. v.
United States, 21 CIT 1124, 1126, 980 F. Supp. 485 (1997).
AASPS argues that supplementation of the administrative record is warranted on the
basis of changed or new information.5 AASPS’s Motion at 4. Specifically, AASPS argues that
Sundaram’s 2006-2007 annual report should be admitted to the administrative record as new
information for the purpose of showing that material information was misrepresented to the
agency and that the final determination was improperly based on information that it was not what
it was claimed to be. Id. However, AASPS concedes that this information was publicly available
online during the entire investigation period. See Id. at 3.6 AASPS admits that “ [t]he file for
Sundaram’s 2006-2007 annual report was first created on September 29, 2007.” See AASPS’s
December 22, 2009 Letter at 1, Ex. 1. AASPS further states that it “believes that the [Sundaram
2006-2007 annual] report was publicly available from September 29, 2007 onwards.” Id. at 2.
Accordingly, because the information AASPS seeks to admit is not new, supplementation on this
basis is not appropriate.
5
AASPS alleges that Lian Li has committed fraud, see AASPS’s Motion at 1, but does not specifically allege that
Commerce itself perpetuated any fraud or misrepresentation during the course of the investigation. See Id. Courts
have held that it is fraud or bad faith dealing on the part of the agency itself that would call for the court to
supplement the agency record. Ammex Inc. v. United States, 27 CIT 1811, 1813 (2003)( When bad faith on the part
of government officials is not alleged by petitioner, this court will not supplement the administrative record on that
ground).
6
The information that AASPS claims is new consists of publicly available information relating to Sundaram
obtained from the websites www.moneycontrol.com and www.indiainfonline.com by financial consultants hired by
Lian Li for the purposes of obtaining surrogate value information in the underlying administrative proceeding.
Defendant Intervenor’s Response to Plaintiff’s Motion to Supplement Administrative Record at 2.
8
This court has repeatedly held that judicial review must be based solely upon the
administrative record made during the particular review proceeding which resulted in the
determination subject to judicial review. See e.g. Beker, 7 CIT at 313-18 (Plaintiff sought to add
information and documents from proceedings before or during the review in question; this court
denied the request because Plaintiff could have sought access to most, if not all, of this
information and attempted to introduce it into the record at the agency level.); Nakajima All Co.,
Ltd. v. United States, 2 CIT 25 (1981).7 The scope of the record for purposes of judicial review
must be based upon information which was “before the relevant decision-maker” and was
presented and considered “at the time the decision was rendered.” Beker, 7 CIT at 315 (quotation
omitted.) “This information, which constitutes the formal record is the only information upon
which the factual findings and legal conclusions underlying the challenged determination could
have been based.” Id. at 316. “An attempt to supplement the record now in the fashion
attempted by plaintiff is tantamount to seeking de novo review through the back door.” Id. at
317.
In this case, AASPS has offered no evidence that the Sundaram 2006-2007 annual report
qualifies as “new . . . information.” See AASPS’s Motion at 4. Because AASPS has made no
showing that it could not have taken steps to place the Sundaram 2006-2007 annual report before
the administrative decision-maker, “the court should not allow it belatedly to expand the record
7
In Nakajima, 2 CIT 25, at 25 Plaintiff moved to amend and supplement the administrative record in an action under
19 U.S.C. § 1516a by adding two documents claimed to have come to the attention of counsel after the action had
been commenced. This court agreed with Defendant and Defendant-Intervenor that the granting of such a motion
would be contrary to 19 U.S.C. § 1516a which provides that determinations in antidumping proceedings are
reviewed upon the administrative record. Id. at 25-26. This court also noted that this scope of review, predicated
solely upon the basis of the administrative record, is in accord with general principles of judicial review of
administrative action. Id. at 26.
9
with this information.” Beker, at 318. Accordingly, as in Beker, supplementation of the existing
administrative record is not appropriate.
C
AASPS Has Not Made A Sufficient Showing That The Existing Administrative
Record Is Incomplete So As To Frustrate Meaningful Judicial Review
AASPS claims that Commerce “has relied on data that was materially misrepresented
and/or potentially or actually submitted under false pretenses.” AASPS’s Motion at 4.
According to AASPS, throughout the course of the administrative review, AASPS “clearly and
plainly alleged on numerous occasions that the document was not what Lian Li said it was.” Id.
at 2. AASPS asks the court to admit the Sundaram 2006-2007 annual report because it alleges:
(1) Commerce misrelied on the information submitted by Lian Li id. at 1; (2) this information
“compromised the accuracy of the proceedings,” id. at 5 (quotation omitted); and (3) that
inclusion (of the report) is necessary because it “may influence the court’s own determinations.”
Id. at 5. AASPS provides no record support for these particular arguments. See AASPS’s
Motion 2-5. This court has held that when a party does not demonstrate that an administrative
record was so incomplete as to “frustrate meaningful review” supplementation of the
administrative record is not warranted. Ammex Inc. v. United States, 27 CIT 1811, 1812 (2003).
The existing administrative record before this court is clearly not so incomplete as to
“frustrate meaningful review.” Id. During the administrative review proceedings, Commerce
conducted on-site verifications of Lian Li’s submitted financial information from January 12 to
January 16, 2009. See Memorandum from Cindy Robinson and Victoria Cho, Case Analysts,
Office 3, U.S. Department of Commerce, to the File, Re: the First Administrative Review of
Certain Lined Paper Products from the People’s Republic of China: Verification of the Sales and
10
Factors of Production Responses of Shanghai Lian Li Paper Products Co., Ltd. (February 26,
2009), CR 33, (“Commerce’s Verification Report on Lian Li’) at 1. On February 26, 2009, after
conducting the on-site verification of Lian Li, Commerce issued three separate reports regarding
verification of factors of production for Shanghai MiaoPanFang Paper Products Co., Ltd.
(“MPF”), Shanghai Sentian Paper Products Co. Ltd. (“Sentian”)8, and Lian Li respectively. See
Memorandum from Cindy Robinson and Victoria Cho, Case Analysts, Office 3, U.S.
Department of Commerce, to the File, Re: the First Administrative Review of Certain Lined
Paper Products from the People’s Republic of China: Verification of the Factors of Production
Responses of Shanghai MiaoPanFang Paper Products Co., Ltd. (“MPF”) (February 26, 2009),
CR 32; Memorandum from Cindy Robinson and Victoria Cho, Case Analysts, Office 3, U.S.
Department of Commerce, to the File, Re: the First Administrative Review of Certain Lined
Paper Products from the People’s Republic of China: Verification of the Factors of Production
Responses of Sentian Paper Products Co. Ltd. (“Sentian”) (February 26, 2009), CR 34;
Commerce’s Verification Report on Lian Li at 2 (“No particular issues or factual observations
arose . . . which may require further consideration by [Commerce].”)
Commerce’s verification reports did not state that Lian Li’s submissions were so
incomplete and inaccurate as to not comply with Commerce’s standards. See id. Commerce
conducts verifications in order to test the information provided by a party for completeness and
accuracy. Micron Tech., Inc. v. United States, 19 CIT 829, 849, 893 F. Supp. 21 (1995) (citation
omitted). As long as “Commerce applies a reasonable standard to verify materials submitted,
8
MPF and Sentian are two producers of merchandise that Lian Li purchases. See Section A: Response of Shanghai
Lian Li Paper Product Co., Ltd. ITA Case No. A570-901, (December 6, 2007) CR at 3.
11
and the verification is supported by such relevant evidence as a reasonable mind might accept,
the Court will not impose its own standard to superceding that of Commerce.” (citation omitted)
Hercules, Inc. v. United States, 11 CIT 710, 726, 673 F. Supp. 454 (1987).
Throughout the administrative proceeding, Commerce requested additional data from
Lian Li and Lian Li timely provided information to Commerce: supplying six additional
supplemental questionnaires upon request.9 During this time, AASPS submitted to Commerce
nine separate comments regarding the perceived inadequacy of Lian Li’s submitted section
reports and supplemental questionnaires (collectively, “AASPS’s Deficiency/Rebuttal
Comments”).10 In these nine documents AASPS has clearly documented its objections to Lian
Li’s data submissions and the quality of the data submitted. AASPS’s Deficiency/Rebuttal
Comments, which are part of the existing administrative record, clearly state AASPS’s
allegations against Lian Li.11 Accordingly, the existing record is not so incomplete as to
required supplementation.
9
From December 6, 2007, to January 9, 2009 (the first day of Commerce’s on-site verification), Commerce and Lian
Li corresponded sixteen times regarding submission of Lian Li’s data: ( December 6, 2007 (CR 2); December 13,
2007 (CR 3); January 4, 2008 (CR 5); January 10, 2008 (CR 6); January 22, 2008 (CR 8); January 23, 2008 (CR 9);
February 6, 2008 (CR 11); February 27, 2008 (CR 12); March 6, 2008 (CR 12); April 1, 2008 (CR 15); April 11,
2008(2) (CR 17, CR 18); April 23, 2008 (CR 20); October 2, 2008 (CR 25); October 16, 2008 (CR 26); and January
6, 2008) (CR 30).
10
From December 6, 2007, to January 9, 2009, AASPS wrote to Commerce nine separate times regarding the
inadequacies of Lian Li’s data submissions: (January 17, 2008 (CR 7); January 31, 2008 (CR 10); March 12, 2008
(CR 14); April 8, 2008 (CR 16); April 15, 2008 (CR 19); May 1, 2008 (CR 21); October 27, 2008 (CR 27);
December 17, 2008 (CR 29); and January 9, 2009 (CR 31).
11
See id.
12
V
CONCLUSION
For the foregoing reasons, it is hereby ORDERED that Plaintiff’s Motion to Supplement
Administrative Record is DENIED.
_/s/ Evan J. Wallach__
Evan J. Wallach, Judge
Dated: January 25, 2010
New York, NY
13