E9-30847. Certain Lined Paper Products from India: Notice of Court Decision Not In Harmony with Final Determination of Sales at Less than Fair Value

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On December 10, 2009, the United States Court of International Trade (“CIT”) sustained the Department of Commerce's (“the Department's”) redetermination on remand of the final results of the antidumping duty investigation on certain lined paper products from India. See Association of American School Paper Suppliers v. United States, Court No. 06-00395, Slip Op. 09-136 (CIT December 10, 2009) (“AASPS, Slip. Op. 09-136”).^[1] The Department is now issuing this notice of court decision not in harmony with the Department's determination.

EFFECTIVE DATE:

December 20, 2009.

FOR FURTHER INFORMATION CONTACT:

Christopher Hargett or Joy Zhang, AD/CVD Operations, Office 3, Import Administration, International Trade Administration, U.S. Department of Commerce, 14th Street and Constitution Avenue, NW, Washington, DC 20230; telephone: [phone] or [phone], respectively.

SUPPLEMENTARY INFORMATION:

Background

On August 8, 2006, the Department published the final determination of sales at less than fair value (“LTFV”) in the antidumping duty investigation of certain lined paper products (“CLPP”) from India for the period of investigation, July 1, 2004, through June 30, 2005 (“POI”). See Notice of Final Determination of Sales at Less Than Fair Value, and Negative Determination of Critical Circumstances: Certain Lined Paper Products from India, 71 FR 45012 (August 8, 2006) (“CLPP Final Determination”). The Association of American School Paper Suppliers^[2] (“AASPS”) and Kejriwal Paper Limited (“Kejriwal”) filed lawsuits challenging the CLPP Final Determination.

In its November 17, 2008 opinion,^[3] the CIT partially remanded the CLPP Final Determination. Specifically, the CIT ordered the Department to further explain 1) how the general and administrative (“G&A”) expense ratio reasonably identifies and fairly allocates G&A expenses in light of the evidence on the record; and 2) how its G&A expense ratio is consistent with its treatment of Kejriwal's financial expense ratio.

In accordance with the CIT's remand order in AASPS, Slip Op. 08-122, the Department filed its redetermination on remand of the CLPP Final Determination (“Remand Final Determination”) on March 16, 2009. In its redetermination, the Department provided further explanation on its calculation methodology, and also determined that certain additional expenses should be attributed directly to Kejriwal's newsprint operations.

Decision Not in Harmony

On December 10, 2009, the CIT sustained the Department's redetermination on remand of the final results of the antidumping duty investigation on CLPP from India. By sustaining the remand results, the CIT affirmed all of the issues in which the Department was challenged, including the Department's explanation of how the G&A expense ratio it calculated 1) reasonably identifies and fairly allocates G&A expenses in light of the evidence on the record, and 2) is consistent with the Department's treatment of Kejriwal's financial expense ratio.

Pursuant to the Department's redetermination, Kejriwal's G&A expense ratio changed.^[4] As a result of the change to Kejriwal's G&A expense ratio, Kejriwal's calculated margin for the the POI has changed from 3.91 percent in the CLPP Final Determination to 3.06 percent in the redetermination issued on March 16, 2009. Accordingly, absent an appeal or, if appealed, upon a final and conclusive court decision in this action, we will amend our final determination of this investigation to reflect the recalculation of the margin for Kejriwal.

Suspension of Liquidation

The United States Court of Appeals for Federal Circuit (“CAFC”) held that the Department must publish notice of a decision of the CIT or the CAFC which is not in harmony with the Department's determination. See The Timken Company v. United States, 893 F.2d 337, 341 (CAFC 1990). Publication of this notice fulfills that obligation. The CAFC also held that, in such a case, the Department must suspend liquidation until there is a “conclusive” decision in the action. Id. Therefore, the Department must suspend liquidation pending the expiration of the period to appeal the CIT's December 10, 2009, decision or, if appealed, pending a final and conclusive court decision. Because entries of certain lined paper products from India produced and exported to the United States by Kejriwal Paper Limited are currently being suspended pursuant to the court's injunction order in effect, the Department does not need to order U.S. Customs and Border Protection (“CBP”) to suspend liquidation of affected entries. Accordingly, the Department will continue the suspension of liquidation of the subject merchandise pending the expiration of the period of appeal or, if appealed, pending a final and conclusive court decision.

This notice is issued and published in accordance with section 516A(c)(1) of the Tariff Act of 1930, as amended.

Dated: December 22, 2009.

John M. Andersen,

Acting Deputy Assistant Secretary for Antidumping and Countervailing Duty Operations.

Footnotes

1.  The CIT's action referenced in AASPS, Slip. Op. 09-136 includes court number 06-00395 and 06-00399. See Association of American School Paper Suppliers v. United States, Consol. Ct. No. 06-00395 (Feb. 26, 2007) (order granting consent motion to consolidate cases).

2.  The Association consists of MeadWestvaco Corporation, Norcom, Inc., and Top Flight, Inc.

3.  See Association of American School Paper Suppliers v. United States, Consol. Court No. 06-00395, Slip Op. 08-122 (CIT November 17, 2008) (“AASPS, Slip Op. 08-122”)

4.  Due to the proprietary nature of Kejriwal's G&A expenses, see the Department's proprietary calculation memorandum, titled “Remand for the Antidumping Investigation of Certain Lined Paper Products from India,” dated March 13, 2009, for further discussion.