Association of American School Paper Suppliers v. United States

Slip Op. 11-101

UNITED STATES COURT OF INTERNATIONAL TRADE
____________________________________
:
ASSOCIATION OF AMERICAN :
SCHOOL PAPER SUPPLIERS, :
:
Plaintiff, :
: Before: WALLACH, Judge
v. : Court No.: 09-00163
:
UNITED STATES, :
:
Defendant, :
:
and :
:
SHANGHAI LIAN LI PAPER :
PRODUCTS CO., LTD., :
:
Defendant-Intervenor. :
:

[Commerce’s Final Results of Redetermination Pursuant to Court Remand are AFFIRMED.]

Dated: August 11, 2011

Wiley Rein LLP (Alan H. Price, Timothy C. Brightbill, and Maureen E. Thorson) 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
(Michael D. Panzera).

Dorsey & Whitney LLP (William E. Perry, Emily Lawson, 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.

1
For a more comprehensive overview of the underlying litigation, see AASPS I, 716 F. Supp. 2d 1329.

1
 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

2
The Sundaram data contained financial information for Sundaram Multi Pap Ltd. for the years 2003-2007;
this financial information was gathered from two secondary sources and not directly from Sundaram Multi Pap Ltd.
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), Public Document (“P.D.”) 63 at 5; Remand
Redetermination at 23-25.
3
Public Document (“P.D.”) and Confidential Document (“C.D.”) citations refer to the administrative record
filed in Plaintiff’s original challenge to the Final Results, not the record filed by Commerce concurrent with the
Remand Results. Public Document on Remand (“P.D.R.”) citations refer to the administrative record filed by
Commerce concurrent with the Remand Results.

2
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

4
In antidumping duty proceedings concerning merchandise from the PRC, Commerce determines the
normal value of that merchandise through an approach specific to non-market economy countries. See 19 U.S.C. §
1677b(c); 19 C.F.R. § 351.408; Department of Commerce, Antidumping Manual (October 13, 2009), Chap. 10;
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, 58,542 (October 7,
2008) (“Preliminary Results”). This approach uses surrogate data from a comparable market economy country to
value the factors of production (“FOP”) (including materials, labor, and energy) and other costs of production (“non-
FOP costs of production”) (including factory overhead; selling, general, and administrative expenses; and profit) for
the merchandise. Department of Commerce, Antidumping Manual (October 13, 2009), Chap. 10 at 14-18; see also
19 CFR § 351.408(c)(4). In valuing non-FOP costs of production, Commerce calculates surrogate financial values
using the publicly available financial statements of a producer of comparable merchandise from the surrogate
country. 19 CFR § 351.408(c)(4). For the instant review, Commerce chose India as the surrogate country, because
India is a market economy country that (1) is “at a level of economic development comparable to that of” the PRC
and (2) is a significant producer of comparable merchandise. Preliminary Results, 73 Fed. Reg. at 58,542.

3
(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

5
Commerce continued to rely on the same reasoning for favoring the Sundaram data in its Remand
Redetermination as it did in the Final Results. Final Results Memorandum at cmt. 4 (“The Department continues to
find that Sundaram’s information represents the best available information on the record. We continue to find that
Sundaram’s financial statement is complete, publicly available and contemporaneous with the POR.”); see also
Preliminary Results, 73 Fed. Reg. at 58,547.

4
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.

6
It appears that Commerce did not have a copy of the official 2006-2007 Sundaram annual financial report
on the record. A copy of the official 2004-2005 Sundaram annual financial report was submitted to Commerce by
AASPS during remand proceedings, following Commerce’s request. Remand Redetermination at 24; Letter from
Wiley Rein LLP to Gary F. Locke, Secretary of Commerce, Re: Certain Lined Paper Products from the People’s
Republic of China: Submission of 2004-2005 Annual Report of Sundaram Multi Pap Ltd. (November 9, 2010)
P.D.R. 10 at 1-2; Letter from James Terpstra, Program Manager, to Wiley Rein LLP, Re: Remand Redetermination,
Association of American School Paper Suppliers v. United States, Court No. 09-00163, Request for Submission of
Factual Information Referenced in the Association of American School Paper Suppliers’ October 19, 2010
Comments on the Department of Commerce’s Draft Results of Remand Redetermination (November 5, 2010),
P.D.R. 8.
7
In declining to use the Navneet data in the Remand Redetermination, Commerce changed its reasoning
from its position in the Final Results. Compare Final Results Memorandum at 39 cmt. 4, cited in AASPS I, 716 F.
Supp. 2d at 1335 (“Commerce stated that (1) during an earlier investigation, it had determined that the Navneet data
[were] inaccurate and (2) nothing in the record contradicts that determination.”) with Remand Redetermination at 13
(“We have revisited this conclusion and have not relied upon it as a basis for rejecting Navneet’s financial
information.”).

5
 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. NLRB, 340 U.S. 474, 487–88, 71 S. Ct. 456, 95 L. Ed. 456 (1951)).

6
 IV
DISCUSSION

Commerce’s selection of the Sundaram data as the “best available information” from

which to calculate surrogate values is supported by substantial evidence. Commerce rationally

concluded that the Sundaram data are “not so incomplete as to warrant rejection,” Remand

Redetermination at 26; see infra Part IV.B, and that the Sundaram data are reliable, see infra Part

IV.C. These conclusions are reasonable, in part, because AASPS has not demonstrated that

Commerce has a consistent past practice of “reject[ing] financial statements where any

information is missing, regardless of its nature,” Plaintiff’s Comments at 12. See infra Part IV.D.8

A
Legal Framework

19 U.S.C. § 1677b(c)(1)(B) requires Commerce to calculate surrogate financial values

“based on the best available information regarding the values of such factors in a market

economy country or countries considered to be appropriate by [Commerce].” 19 U.S.C. §

1677b(c)(1)(B). “The statute provides little guidance as to what constitutes best available

information,” Globe Metallurgical, Inc. v. United States, 28 CIT 1608, 1621, 350 F. Supp. 2d

1159 (2004) (citing Nation Ford Chem. Co. v. United States, 166 F.3d 1373, 1377 (Fed. Cir.

1999)), and “Congress has vested Commerce with considerable discretion in selecting the ‘best

available information.’” Allied Pacific Food (Dalian) Co. v. United States, 587 F. Supp. 2d 1330,

1342 (CIT 2008) (same). However, Commerce’s selection must still be supported by substantial

evidence on the record and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i).

8
Because Commerce’s selection of the Sundaram data was within its discretion, see infra Part IV, AASPS’
arguments concerning selection of the Navneet data and reopening the administrative record, Association of
American School Paper Suppliers’ Reply Comments on the Remand Results (“Plaintiff’s Reply”), Doc. No. 118 at
14, are moot.

7
 B
Substantial Evidence Supports Commerce’s Conclusion That The
Sundaram Data Were Sufficiently Complete

AASPS argues that Commerce “has not explained its determination that the [Sundaram]

data are sufficiently complete to enable the agency to accurately calculate surrogate financial

ratios.” Plaintiff’s Comments at 19. AASPS states that “the [Sundaram] data does not represent

Sundaram’s complete annual report or financial statement” because the information “is missing

data required under Indian law” and missing “numerous schedules” that are present in the official

2004-2005 Sundaram annual financial report. Association of American School Paper Suppliers’

Reply Comments on the Remand Results (“Plaintiff’s Reply”), Doc. No. 118 at 9. AASPS

focuses on the “lack [of] any schedules or breakouts for line items on the balance sheet or profit

and loss statement” and states that Commerce “has previously rejected financial statements that

do not contain such schedules.” Id. at 10. The lack of these schedules or breakouts, according to

AASPS, “frustrates the agency’s ability to perform any analysis” of some of the elements of the

surrogate financial ratio calculations. Id. AASPS argues that “[s]imply describing the missing

schedules as non-vital does not provide the required explanation.” Id. at 11.

The Government argues that “the record demonstrates that the Sundaram [data] was not

defective in a way that would warrant rejection of information as incomplete.” Defendant’s

Response to Plaintiff’s Comments Regarding the Remand Redetermination (“Defendant’s

Response”), Doc. No. 115 at 15 (internal quotations omitted). Commerce explained that its

“primary concern is whether the financial statements contain usable data.” Remand

Redetermination at 11. It found that the Sundaram data contained a director’s report, auditor’s

reports, balance sheet, profit and loss statement, notes, and accounting policies. Id. Commerce

stated that these are “elements which are common to many financial reports.” Id. Commerce

8
also stated that “the details of operating expense and overhead can be presented differently for

[each] different company’s financial information” and that “the accounts which are required to

calculate surrogate values were included in the Sundaram [data].” Id. at 13. Commerce

concluded that the Sundaram data were “sufficiently complete . . . for the purpose of calculating

surrogate financial ratios.” Id. at 14.

AASPS fails to offer any evidence that Commerce acted beyond the scope of its

discretion or that Commerce’s methodology compromised its calculations. See generally

Plaintiff’s Comments; Plaintiff’s Reply. Commerce here sufficiently explained its conclusion

that the Sundaram data “contained all the data [it] needed to calculate financial ratios,” Remand

Redetermination at 11.9

C
Substantial Evidence Supports Commerce’s Conclusion That The
Sundaram Data Were Reliable

AASPS also challenges Commerce’s conclusion that the Sundaram data are an accurate

representation of the official Sundaram annual financial report. Plaintiff’s Comments at 16.

AASPS argues that “there is no reason why” matching 2004-2005 values with official

documentation should necessarily mean that the 2006-2007 values are consistent as well, id. at

17-18, and that “this finding is pure speculation,” Plaintiff’s Reply at 8.

The Government argues that Commerce’s comparison, inter alia, “provide[s] substantial

evidence to support Commerce’s determination that the information reflects the official annual

report of Sundaram for the current period.” Defendant’s Response at 21. Defendant-Intervenor

adds that this comparison was logical because “if the data given for the year ended March 2005

9
AASPS argues that “any incomplete statement must be rejected. The lack of schedules is therefore an
indicia of incompleteness that warrants rejection.” Plaintiff’s Reply at 11. To the extent that AASPS’ argument rests
on its theory of Commerce’s past practice, this argument is also rejected. See infra Part IV.D.

9
is accurate, the data for other years listed is also likely to be accurate.” Response to Comments

on Final Results of Redetermination Pursuant to Court Order (“Defendant-Intervenor’s

Response”), Doc. No. 116 at 13.

It may be true that, as AASPS points out, “it does not follow” that because the 2004-2005

Sundaram data were accurate, the 2006-2007 data “must also accurately reflect the values

recorded in Sundaram’s 2006-2007 financial statement.” Plaintiff’s Reply at 8 (emphasis

added).10 Nevertheless, it is within Commerce’s discretion to conclude the data do accurately

reflect those values, as long as it provides substantial evidence for its conclusion. 19 U.S.C. §

1516a(b)(1)(B)(i).

Here, Commerce provided such evidence. Commerce compared 2004-2005 values in the

Sundaram data, which covered years 2003 to 2007, to the official 2004-2005 Sundaram annual

financial statement. Remand Redetermination at 26; Balance Sheet Analysis at 2. Commerce

found that, for the 2004-2005 values, “[a]ny differences between the values in the two reports

were less than 0.1 percent,” Remand Redetermination at 26, and “attributable to rounding,”

Balance Sheet Analysis at 3. AASPS does not dispute these findings. See generally Plaintiff’s

Comments at 16-19; Plaintiff’s Reply at 7-9. Commerce then determined that the 2006-2007

values contained in the Sundaram data were “an accurate representation” of the official 2006-

2007 Sundaram annual financial report. Remand Redetermination at 26; see also Balance Sheet

10
Plaintiff’s counsel stated at oral argument that Plaintiff “do[es no]t dispute” the accuracy of the 2004-
2005 Sundaram data. August 4, 2011 Oral Argument at 10:59:00-10:59:13.

10
Analysis at 3 (concluding that the official 2004-2005 Sundaram annual financial report

corroborated the accuracy of the Sundaram data).11

D
AASPS Has Failed To Show That Commerce Has Consistently Rejected
Statements Where Any Information Is Missing

AASPS contends that Commerce’s “past practice is to reject financial statements where

any information is missing, regardless of its nature.” Plaintiff’s Comments at 12.12 AASPS

argues that Commerce’s use of the Sundaram data “is a clear deviation from past practice which

[Commerce] has not explained.” Plaintiff’s Reply at 2.

The Government counters that “AASPS’s argument distorts Commerce’s practice with

respect to incomplete statements,” Defendant’s Response at 11, pointing to Commerce’s

description of its past practice as rejecting incomplete financial statements in cases “where

alternative information was on the record and the missing information was determined to be

vitally important.” Defendant’s Response at 10 (quoting Remand Redetermination at 26)

(emphasis added). The Government argues Commerce has an alternative past practice not

correctly articulated by AASPS that is consistent with Commerce’s actions in this case.

Defendant’s Response at 11-13; see Remand Redetermination at 26-27.

“A court may measure Commerce’s reasonableness by determining whether Commerce’s

actions are consistent with a past practice or stated policy.” Globe Metallurgical, 28 CIT at 1621

(citing Hebei Metals & Minerals Imp. & Exp. Corp. v. United States, 28 CIT 1185, 1199

11
AASPS also argues that Commerce’s conclusion that “Navneet was subsidized during the [POR]” was
based on a type of information present in the Navneet data but not present in the Sundaram data, Plaintiff’s Reply at
10 n.7, and further asserts that the Sundaram data nonetheless “indicates that Sundaram received ‘export incentives’
during the review period,” id. at 14. Yet, even if Sundaram received actionable subsidies, the parties agree that
receipt of subsidies is not by itself enough to reject a financial statement. Remand Redetermination at 17; Plaintiff’s
Reply at 14. Additionally, AASPS does not contest Commerce’s finding that Navneet has a different level of
integration. See generally Plaintiff’s Comments at 21-23; Plaintiff’s Reply at 13-15.
12
AASPS points to Commerce’s various instances of rejecting financial statements when missing certain
information. Plaintiff’s Comments at 8-10.

11
(2004)); see also NMB Singapore Ltd. v. United States, 557 F.3d 1316, 1331 (Fed. Cir. 2009);

Defendant’s Response at 14; Plaintiff’s Reply at 3.13

When assessing Commerce’s past practice, “the proper mode of analysis requires

comparison of Commerce’s actions before this case with Commerce’s actions in this case.”

Consol. Bearings Co. v. United States, 348 F.3d 997, 1007 (Fed. Cir. 2003) (applying the

arbitrary and capricious standard). In addition, Commerce’s “policy statements may help

identify Commerce’s consistent past practice.” Id. Plaintiff has the burden of showing “that

Commerce consistently followed a contrary practice in similar circumstances.” Id.; see also

Andaman Seafood Co., Ltd. v. United States, 768 F. Supp. 2d 1315, 1326 (CIT 2011) (holding

that the plaintiffs failed to show that Commerce had an established practice of relying on indirect

selling expense ratios).

Here, AASPS has not proven that Commerce consistently followed a practice of

“reject[ing] financial statements where any information is missing, regardless of its nature,”

Plaintiff’s Comments at 12.

13
Commerce has “discretion to . . . adapt its views and practices to the particular circumstances of the case
at hand, so long as the agency’s decisions are explained and supported by substantial evidence on the record.”
Pakfood Pub. Co. v. United States, 724 F. Supp. 2d 1327 (CIT 2010) (quoting Nakornthai Strip Mill Pub. Co. v.
United States, 587 F. Supp. 2d 1303, 1307 (2008)).

12
 On one hand, AASPS is correct that Commerce has, at times, described its practice

merely as rejecting incomplete statements, without qualification.14 Commerce has also

14
Memorandum from Susan H. Kuhbach, Acting Deputy Assistant Secretary for Antidumping and
Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration,
Issues and Decision Memorandum for the Final Determination in the Antidumping Duty Investigation of Seamless
Refined Copper Pipe and Tube from the People’s Republic of China (September 24, 2010) (“Seamless Refined
Copper Pipe and Tube”), cited in Seamless Refined Copper Pipe and Tube From the People’s Republic of China:
Final Determination of Sales at Less Than Fair Value, 75 Fed. Reg. 60,725, 60,726 (October 1, 2010), at 10 cmt. 2
(“established practice of rejecting incomplete financial statements”); Memorandum from John M. Andersen, Acting
Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy
Assistant Secretary for Import Administration, Issues and Decision Memorandum for the Antidumping Duty
Investigation of Wire Decking from the People’s Republic of China: Final Antidumping Duty Determination (June
3, 2010) (“Wire Decking”), cited in Wire Decking from the People’s Republic of China: Final Determination of
Sales at Less Than Fair Value, 75 Fed. Reg. 32,905, 32,906 (June 10, 2010), at 15 cmt. 2 (“practice to not use
incomplete or illegible statements”); Memorandum from John M. Andersen, Acting Deputy Assistant Secretary for
Antidumping and Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import
Administration, Issues and Decision Memorandum for the Antidumping Duty Administrative Review of
Polyethylene Retail Carrier Bags from the People’s Republic of China for the Period of Review August 1, 2006,
through July 31, 2007 (February 4, 2009) (“Polyethylene Retail Carrier Bags”), cited in Polyethylene Retail Carrier
Bags from the People’s Republic of China: Final Results of Antidumping Duty Administrative Review, 74 Fed. Reg.
6,857, 6,858 (February 11, 2009), at 9 cmt. 2 (“long-standing practice of not using the financial statements of
surrogate producers whose financial statements are incomplete”); Memorandum from Stephen J. Claeys, Deputy
Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import Administration,
Antidumping Duty Investigation of Lightweight Thermal Paper from the People’s Republic of China: Issues and
Decision Memorandum (“Lightweight Thermal Paper”), cited in Lightweight Thermal Paper From the People’s
Republic of China: Final Determination of Sales at Less Than Fair Value, 73 Fed. Reg. 57,329, 57,329-30 (October
2, 2008), at 13 cmt. 2 (“practice not to use incomplete or illegible statements”); Memorandum from Stephen J.
Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant Secretary for Import
Administration, Issues and Decision Memorandum for the Antidumping Investigation of Certain New Pneumatic
Off-the-Road Tires from the People’s Republic of China (July 7, 2008) (“Certain New Pneumatic Off-the-Road
Tires”), cited in Certain New Pneumatic Off-The-Road Tires from the People’s Republic of China: Final Affirmative
Determination of Sales at Less Than Fair Value and Partial Affirmative Determination of Critical Circumstances, 73
Fed. Reg. 40,485, 40,486 (July 15, 2008), at 37 cmt. 17.A (“practice not to use incomplete or illegible statements”);
Memorandum from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner,
Assistant Secretary for Import Administration, Issues and Decision Memorandum for the 2005-2006 Administrative
Review of Folding Metal Tables and Chairs from the People’s Republic of China (December 7, 2007) (“Folding
Metal Tables and Chairs”), cited in Folding Metal Tables and Chairs from the People’s Republic of China: Final
Results of Antidumping Duty Administrative Review, 72 Fed. Reg. 71,355, 71,356 (December 17, 2007), at 10 cmt.
1 (“long-standing policy to reject financial statements that are incomplete”); Memorandum from Barbara E. Tillman,
Acting Deputy Assistant Secretary for Import Administration, to Joseph A. Spetrini, Acting Assistant Secretary for
Import Administration, Issues and Decision Memorandum for the Final Results and Final Partial Rescission of
Certain Cut-To-Length Carbon Steel Plate from Romania (March 7, 2005) (“Cut-To-Length Carbon Steel Plate”),
cited in Certain Cut-to-Length Carbon Steel Plate from Romania: Notice of Final Results and Final Partial
Rescission of Antidumping Duty Administrative Review, 70 Fed. Reg. 12,651, 12,652-53 (March 15, 2005), at 23
cmt. 10 (“preference for using financial statements, which are audited and complete, compared to financial
statements which are not audited and incomplete”).

13
previously rejected incomplete financial statements without discussing the significance of the

missing data.15

However, Commerce is correct that it has also previously described its policy as rejecting

incomplete statements that are missing critical information.16 Commerce has often explicitly

focused on the importance of the missing information when rejecting incomplete financial

statements.17 Commerce has also previously indicated that incompleteness alone may not be

sufficient to reject statements and that it has in the past relied upon incomplete financial

15
Seamless Refined Copper Pipe and Tube at 10 cmt. 2 (rejecting financial statement missing income
statement); Wire Decking at cmt. 2 (rejecting financial statement missing schedules A through D); Memorandum
from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David M. Spooner, Assistant
Secretary for Import Administration, Issues and Decision Memorandum for the Final Results of Antidumping Duty
Administrative Review and New Shipper Review of Wooden Bedroom Furniture from the People’s Republic of
China (August 11, 2008) (“Wooden Bedroom Furniture II”), cited in Wooden Bedroom Furniture from the People’s
Republic of China: Final Results of Antidumping Duty Administrative Review and New Shipper Review, 73 Fed.
Reg. 49,162, 49,162 (August 20, 2008), at 14 cmt. 1 (rejecting financial statements that were missing listed items).
16
Memorandum from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David
M. Spooner, Assistant Secretary for Import Administration, Issues and Decision Memorandum for the New Shipper
Reviews of Wooden Bedroom Furniture from the People’s Republic of China covering the period June 24, 2004
through June 30, 2005 (November 21, 2006) (“Wooden Bedroom Furniture I”), cited in Wooden Bedroom Furniture
from the People’s Republic of China: Final Results of the 2004-2005 Semi-Annual New Shipper Reviews, 71 Fed.
Reg. 70,739, 70,740 (December 6, 2006), at 6 cmt. 2 (“It is [our] practice to disregard incomplete financial
statements as a basis for calculating surrogate financial ratios where . . . the statement is missing key sections, such
as sections of the auditor’s report, that are vital to our analysis and calculations.”).
17
Memorandum from John M. Andersen, Acting Deputy Assistant Secretary for Antidumping and
Countervailing Duty Operations, to Ronald K. Lorentzen, Deputy Assistant Secretary for Import Administration,
Issues and Decision Memorandum for the Final Results of 1st New Shipper Review: Certain Steel Nails from the
People’s Republic of China (“PRC”) (June 10, 2010) (“Certain Steel Nails”), cited in Certain Steel Nails from the
People’s Republic of China: Final Results of the First New Shipper Review, 75 Fed. Reg. 34,424, 34,426 (June 17,
2010), at 15 cmt. 4 (“[T]he following financial statements are incomplete because they lack certain critical
components . . . .”); Polyethylene Retail Carrier Bags at 9 cmt. 2 (“Such information is critical for determining not
only whether Polyplast’s income comes primarily from its manufacturing operations but also for determining
whether Polyplast is a producer of identical merchandise.”); Memorandum from Bernard T. Carreau, Deputy
Assistant Secretary for Import Administration, Group II, to Faryar Shirzad, Assistant Secretary for Import
Administration Issues and Decision Memorandum for the Final Determination in the Antidumping Duty
Investigation of Steel Concrete Reinforcing Bars from Belarus (June 14, 2001) (“Steel Concrete Reinforcing Bars”),
cited in Notice of Final Determination of Sales at Less Than Fair Value: Steel Concrete Reinforcing Bars From
Belarus, 66 Fed. Reg. 33,528, 33,529 (June 22, 2001), at 7 cmt. 2 (“[W]e are concerned that the statement is missing
key sections, such as sections of the auditor’s report, that are vital to our analysis and calculations.”).

14
statements.18 Moreover, in other determinations, Commerce has “not reject[ed] the financial

information solely for being incomplete.19 Defendant’s Response at 16 (emphasis modified).

Indeed, as pointed out by counsel for Defendant-Intervenor in oral argument, Commerce

recently stated clearly that its practice is to only reject incomplete statements when those

statements are missing “key sections” that are “vital.” August 4, 2011 Oral Argument at

11:11:33-11:12:08 (“Although, Petitioners argued that the Visakha statement appears to be

incomplete the Department notes that it is our practice to only disregard incomplete financial

statements as a basis for calculating surrogate financial ratios where the statement is missing key

18
Memorandum from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, to David
M. Spooner, Assistant Secretary for Import Administration, Issues and Decision Memorandum for the Final Results
in the Second Administrative Review of Floor-standing, Metal-top Ironing Tables and Certain Parts Thereof from
the People’s Republic of China (March 10, 2008) (“Floor-standing, Metal-top Ironing Tables and Certain Parts
Thereof”), cited in Floor-Standing, Metal-Top Ironing Tables and Certain Parts Thereof from the People’s Republic
of China: Final Results of Antidumping Duty Administrative Review, 73 Fed. Reg. 14,437, 14,437-38 (March 18,
2008), at 8 cmt. 1 (“[T]he lack of the [profit and loss] statement from the financial report may not always invalidate
the financial statement as a potential surrogate source if no more reliable options are available.”), 8 cmt. 1 (“We note
that petitioner is correct that in other reviews, the Department has occasionally relied upon incomplete financial
statements to derive surrogate financial ratios. However, the Act requires the Department to determine the surrogate
financial ratios based on the best available information on the record. See section 773(c)(1) of the Act. Thus, the
Department evaluates the best available surrogate information on a case by case basis, and in each case, the
Department must evaluate among the surrogate value sources placed on the record to determine which constitutes
the most comparable, and accurate information. Thus, the lack of the P&L statement from the financial report may
not always invalidate the financial statement as a potential surrogate source if no more reliable options are available.
In this case, however, the Department finds, for the reasons discussed above, that in comparing the 2005-2006
Infiniti Modules with the more complete 2004-2005 Infiniti Modules financial statements, the 2004-2005 Infiniti
Modules financial statements are wholly publicly available and thus more reliable and complete.”).
19
Floor-standing, Metal-top Ironing Tables and Certain Parts Thereof at 7 n.13 cmt. 1 (“[A missing] [profit
and loss] statement raises concerns that items listed on the [profit and loss] statement which may be relevant to the
surrogate financial ratio calculation are not listed in the publicly available schedules.”); Certain Lined Paper
Products at 10 cmt. 1 (“[The f]inancial statements are illegible and undecipherable. Furthermore, the financial
statements do not appear to be a complete report . . . .”); Cut-To-Length Carbon Steel Plate at 23 cmt. 10 (discussing
five reasons for rejection, including incompleteness); Silicon Metal at 27 cmt. 9 (“[W]e are disregarding all Sinai
Manganese financial data as either having a negative profit or incomplete and not contemporaneous financial
data.”); Steel Concrete Reinforcing Bars at 7 cmt. 2 (“insolvent company with an aberrational [selling, general, and
administrative] expense ratio” and an incomplete statement); Memorandum from Joseph A. Spetrini, Deputy
Assistant Secretary for Import Administration, to Faryar Shirzad, Assistant Secretary for Import Administration,
Issues and Decision Memorandum for the Less Than Fair Value Investigation of Silicon Metal from the Russian
Federation (February 3, 2003) (“Silicon Metal”), cited in Notice of Final Determination of Sales at Less Than Fair
Value: Silicon Metal From the Russian Federation, 68 Fed. Reg. 6,885, 6,886-87 (February 11, 2003), at 26-28 cmt.
9 (“The 1995-1998 Sinai Manganese financial data may be incomplete, and moreover is not contemporaneous with
the [period of investigation]. Thus, we are disregarding all Sinai Manganese financial data as either having a
negative profit or incomplete and not contemporaneous financial data.”).

15
sections, such as sections of the auditor’s report, that are vital to our analysis and calculations.”)

(quoting Galvanized Steel Wire From the People’s Republic of China and Mexico: Initiation of

Antidumping Duty Investigations, 76 Fed. Reg. 23,548, 23,551 (April 27, 2011)).

AASPS has not proven that Commerce has consistently “reject[ed] financial statements

where any information is missing, regardless of its nature,” Plaintiff’s Comments at 12. AASPS

cites many of the Commerce decisions referenced above, see supra nn. 14-20, as supporting its

proposition that Commerce “has uniformly rejected financial statements that are incomplete,

whether by reason of missing notes, schedules, pages or even certain figures,” Plaintiff’s Reply

at 4. See Plaintiff’s Comments at 8-9 n.5. However, the Government correctly counters that

“Commerce did [not] somehow develop[] a policy of [always] rejecting . . . incomplete

information without inquiring into whether calculations would be feasible notwithstanding the

incompleteness” simply by not “fully explaining in every case its reasoning for rejecting

information as incomplete.” Defendant’s Response at 14 (internal quotation marks omitted).

V
CONCLUSION

For the reasons stated above, Commerce’s Final Results of Redetermination Pursuant to

Remand are AFFIRMED.

__/s/ Evan J. Wallach____
Evan J. Wallach, Judge

Dated: August 11, 2011
New York, New York

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