                                           Slip Op. 13-10

                UNITED STATES COURT OF INTERNATIONAL TRADE


FUWEI FILMS (SHANDONG) CO., LTD.,

                              Plaintiff,
                                                            Before: Leo M. Gordon, Judge
               v.
                                                            Consol. Court No. 11-00061
UNITED STATES,

                              Defendant.


                                             OPINION

[Remand results sustained.]

                                                                      Dated: January 24, 2013


      David J. Craven, Riggle & Craven, of Chicago, IL, for Plaintiffs Fuwei Films
(Shandong) and Shaoxing Xiangyu Green Packing Co., Ltd.

       David F. D’Alessandris, Trial Attorney, Commercial Litigation Branch, Civil
Division, U.S. Department of Justice, of Washington, DC, for Defendant United States.
With him on the brief were Stuart F. Delery, Principal Deputy Assistant Attorney
General, Jeanne E. Davidson, Director and Patricia M. McCarthy, Assistant Director. Of
Counsel on the brief was Whitney Rolig, Office of the Chief Counsel for Import
Administration, International Trade Administration, Department of Commerce, of
Washington, DC.

       Ronald I. Meltzer, Patrick J. McLain, David M. Horn, and Jeffrey I. Kessler,
Wilmer, Cutler, Pickering, Hale and Door, LLP, of Washington, DC, for Defendant-
Intervenors DuPont Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray
Plastics (America), Inc.

         Gordon, Judge:   This consolidated action involves an administrative review

conducted by the U.S. Department of Commerce (“Commerce”) of the antidumping duty

order covering Polyethylene Terephthalate (“PET”) Film from the People’s Republic of

China.    See Polyethylene Terephthalate Film from the People’s Republic of China,
Consol. Court No. 11-00061                                                            Page 2


76 Fed. Reg. 9,753 (Dep’t of Commerce Feb. 22, 2011) (“Final Results”) and

accompanying Issues and Decision Memorandum, A-570-924 (Feb. 14, 2011), available

at   http://ia.ita.doc.gov/frn/summary/prc/2011-3909-1.pdf   (last   visited   this    date)

(“Decision Memorandum”). Before the court are the Final Results of Redetermination,

Oct. 15, 2012, ECF No. 70, (“Remand Results”), filed by Commerce pursuant to Fuwei

Films (Shandong) Co. v. United States, 36 CIT ___, 837 F. Supp. 2d 1347 (2012)

(“Fuwei”). The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff

Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006), 1 and 28 U.S.C.

§ 1581(c) (2006). For the reasons set forth below, the Remand Results are sustained.

                                 I. Standard of Review

       For administrative reviews of antidumping duty orders, the court sustains

determinations, findings, or conclusions of the U.S. Department of Commerce unless

they are “unsupported by substantial evidence on the record, or otherwise not in

accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i). More specifically, when reviewing

agency determinations, findings, or conclusions for substantial evidence, the court

assesses whether the agency action is reasonable given the record as a whole. Nippon

Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). Substantial

evidence has been described as “such relevant evidence as a reasonable mind might

accept as adequate to support a conclusion.”       DuPont Teijin Films USA v. United


1
 Further citation to the Tariff Act of 1930, as amended, are to the relevant provisions of
Title 19 of the U.S. Code, 2006 edition.
Consol. Court No. 11-00061                                                     Page 3


States, 407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305

U.S. 197, 229 (1938)). Substantial evidence has also been described as “something

less than the weight of the evidence, and the possibility of drawing two inconsistent

conclusions from the evidence does not prevent an administrative agency's finding from

being supported by substantial evidence.” Consolo v. Fed. Mar. Comm'n, 383 U.S. 607,

620 (1966). Fundamentally, though, “substantial evidence” is best understood as a

word formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative

Law and Practice § 9.24[1] (3d. ed. 2012). Therefore, when addressing a substantial

evidence issue raised by a party, the court analyzes whether the challenged agency

action “was reasonable given the circumstances presented by the whole record.”

Edward D. Re, Bernard J. Babb, and Susan M. Koplin, 8 West's Fed. Forms, National

Courts § 13342 (2d ed. 2012).

                                    II. Discussion

      Familiarity with the court’s decision in Fuwei is presumed. In the Final Results

Commerce sourced data from the Indian Harmonized Tariff System (HTS) categories

3907.60.10 and 3907.60.20 to derive a surrogate value for the PET chips of

respondents, Fuwei Films (Shandong) Co., Ltd., and Shaoxing Xiangyu Green Packing

Co., Ltd. (collectively “Respondents”).   Decision Memorandum at 12-16.      In Fuwei

Respondents persuaded the court that Commerce’s reliance on HTS category

3907.60.20, as opposed to 3907.60.10 alone, was unreasonable given the

administrative record (unsupported by substantial evidence). Fuwei, 36 CIT at ___,
Consol. Court No. 11-00061                                                       Page 4


837 F. Supp. 2d at 1356-57. The court remanded the issue to Commerce to clarify or

reconsider its use of Indian Harmonized Tariff System (HTS) category 3907.60.20 in

calculating a surrogate value for Respondents’ PET chips. Id., 36 CIT at ___, 837 F.

Supp. 2d at 1358-59.

      At the same time, the court found wanting the argument of petitioners, DuPont

Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray Plastics (America),

Inc. (collectively “DuPont”), that HTS category 3907.60.20 was the one proper data

source. Id., 36 CIT at ___, 837 F. Supp. 2d at 1356-57. During the immediately prior

administrative proceeding the “DuPont Group” (consisting of the participating mandatory

respondent, DuPont Teijin Films China Limited, together with DuPont Teijin Hongji Films

Ningbo Co., Ltd., and DuPont-Hongji Films Foshan Co., Ltd.—all apparent affiliates of a

petitioner here, DuPont Teijin Films), persuaded Commerce that HTS 3907.60.10, not

3907.60.20, was the proper data source by identifying different testing standards in

China (ISO) and India (ASTM). See id., 36 CIT at ___, 837 F. Supp. 2d at 1354-55. In

Fuwei DuPont failed to account for that prior successful litigating position, arguing,

unconvincingly, that the administrative record did not support use of the ISO standard in

China despite the record containing the same information that DuPont’s affiliates

submitted in the investigation. Id., 36 CIT at ___, 837 F. Supp. 2d at 1356-57. The

court noted the prior litigating position and concluded DuPont’s argument lacked merit.

Id. (“At the outset, the court must note that DuPont has assumed a somewhat difficult

position by arguing that HTS 3907.60.20 constitutes the only proper dataset (for
Consol. Court No. 11-00061                                                        Page 5


Respondents PET Chips) shortly after the DuPont Group successfully argued in the

investigation that HTS 3907.60.10 is the only proper dataset (for the DuPont Group's

PET chips”).

         On remand, Commerce determined that all of Fuwei’s and Green Packing’s PET

chips were properly classified under Indian HTS category 3907.60.10. Remand Results

at 19.     Commerce found that the intrinsic viscosity for all of Fuwei’s and Green

Packing’s PET chips had been tested using the ISO 1:1 methodology.            Commerce

based its determination on this Court’s decision that Commerce reasonably inferred

from the record that the ISO 1:1 test was used in China. Id. (citing Fuwei, 36 CIT at ___,

837 F. Supp. 2d. at 1356). Commerce also inferred that Indian Customs uses the

ASTM 3:2 methodology.        Commerce determined that all of Fuwei’s and Green

Packing’s PET chips would fall within the range for Indian HTS 3907.60.10 once the

intrinsic viscosities were converted from ISO 1:1 to ASTM 3:2. Commerce therefore

reasonably determined from the administrative record that Indian HTS 3907.60.10 was

the best available information for valuing Fuwei’s and Green Packing’s PET chips.

Remand Results at 11-19, 26-35.

         DuPont continues to challenge Commerce’s determination that HTS category

3907.60.10 is the “best available information,” 19 U.S.C. § 1677b(c)(1), for

Respondents’ PET chips. DuPont, however, now argues that the administrative record

does not support that the ASTM standard is used in India (as opposed to its previous

argument that ISO is not used in China). The court again concludes DuPont’s argument
Consol. Court No. 11-00061                                                        Page 6


lacks merit. In the Remand Results Commerce reminded DuPont that it was the Dupont

Group who stated in the investigation, “The ASTM test method is the prevailing

standard in many countries, including India.” Remand Results at 30.

      DuPont attempts to explain this away, suggesting that the DuPont Group’s

statement did not reflect first-hand knowledge and only indicated a litigation position

from a prior proceeding with a separate record and separate findings. Def.-Int. Cmts.

Objecting to Commerce’s First Remand Redetermination at 13-14, ECF No. 85

(“DuPont Br.”). Problematically for DuPont, the administrative record here does not

demonstrate that Indian Customs uses any other testing method, such as the ISO 1:1

test used in China. Id. at 18. As is the case with many antidumping issues, the record

is open to interpretation. DuPont had an additional 18 months between the publication

of the Final Results and Commerce’s remand questionnaires to acquire and submit

record evidence that the ISO standard is used in India, as well as to clarify and correct

for Commerce, the other interested parties, and the court, the prior successful litigating

position of its affiliate the DuPont Group (for example, explaining whether the

certifications accompanying the DuPont Group’s prior submissions, see 19 C.F.R.

§ 351.303(g), were valid and made in good faith). It did not.

      DuPont also argues that “[n]o reasonable mind could infer from” the record

evidence “that the ASTM method is the only testing method used by Indian Customs.”

DuPont Br. at 13. Just as it did when challenging Commerce’s inference that the ISO

standard is generally used in China, DuPont again erroneously assumes that the
Consol. Court No. 11-00061                                                      Page 7


reasonableness of Commerce’s findings with respect to the utilization of ASTM in India

depend on absolutes and evidentiary exactitude. See Fuwei, 36 CIT at ___, 837 F.

Supp. 2d at 1355-56. As the court previously explained, “the statute does not require,

nor have the courts imposed, a requirement of evidentiary exactitude for Commerce’s

surrogate valuations.” Id., 36 CIT at ___, 837 F. Supp. 2d at 1356. And judicial review

of “Commerce’s action here does not depend on absolutes like always or never, but

instead on whether Commerce’s inference about [India’s ASTM utilization] is reasonable

given the information on the administrative record.” Id. Here, it is. Commerce carefully

considered and explained the record evidence, as well as the lack of evidence

supporting DuPont’s other preferred outcomes.              Remand Results at 26-35.

Commerce’s determination that Indian HTS 3907.60.10 was the best available

information for valuing PET Chips—a result first conceived, argued, and supported by

the DuPont Group—is more than reasonable given the facts and circumstances of the

administrative record, and therefore must be sustained.

                                    III. Conclusion

      Commerce’s Remand Results are sustained, and judgment will be entered

accordingly.

                                                           /s/ Leo M. Gordon
                                                          Judge Leo M. Gordon

Dated: January 24, 2013
       New York, New York
