2011-9113. Certain Lined Paper Products From India: Amended Final Determination of Sales at Less Than Fair Value

AGENCY:

Import Administration, International Trade Administration, Department of Commerce.

SUMMARY:

On December 13, 2010, the United States Court of Appeals for the Federal Circuit (“CAFC”) affirmed the United States Court of International Trade's (“CIT's”) decision sustaining 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 (“CLPP”) from India. See Association of American School Paper Suppliers v. United States, Court No. 2010-1219 (CAFC December 13, 2010) (CAFC Rule 36 affirmance); see also Association of American School Paper Suppliers v. United States, Consol. Court No. 06-00395, Slip Op. 09-136 (CIT December 10, 2009) (“AASPS, Slip. Op. 09-136”).^[1] This case arises out of the Department's final determination of sales at less than fair value (“LTFV”) in the antidumping duty investigation of CLPP from India.^[2] As there is now a final and conclusive court decision in this action, the Department is amending the Final Determination and Antidumping Duty Order.^[3]

FOR FURTHER INFORMATION CONTACT:

Christopher Hargett, 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].

SUPPLEMENTARY INFORMATION:

Background

On August 8, 2006, the Department published the final determination of sales at LTFV in the antidumping duty investigation of CLPP from India for the period of investigation (“POI”) of July 1, 2004, through June 30, 2005. See Final Determination. The Association of American School Paper Suppliers ^[4] (“AASPS”) and Kejriwal Paper Limited (“Kejriwal”) filed lawsuits challenging the Final Determination.

In its November 17, 2008 opinion,^[5] the CIT partially remanded the 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 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.

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.^[6] 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.^[7] As a result of the change to Kejriwal's G&A expense ratio, Kejriwal's calculated margin for the POI has changed from 3.91 percent in the Final Determination to 3.06 percent in the redetermination issued on March 16, 2009.

Consistent with the decision in the CAFC in Timken Co. v. United States, 893 F.2d 337 (Fed. Cir. 1990), the Department published in the Federal Register a notice of a court decision that is not “in harmony” with the Department's final determination.^[8] In this notice, the Department stated that we would amend our final determination of this investigation to reflect the recalculation of the margin for Kejriwal upon a final and conclusive court decision in this action.

Kejriwal appealed the CIT's decision affirming the Department's remand results. On December 13, 2010, the CAFC affirmed the CIT's decision under CAFC Rule 36, which allows the Court to enter judgment of affirmance without a written opinion. The period for appeal expired on March 14, 2011. Accordingly, the Department is amending its Final Determination and Antidumping Duty Order.

Amendment to Final Determination and Antidumping Duty Order

Because there is now a final and conclusive court decision in this proceeding, the revised dumping margin for Kejriwal in the Final Determination is as follows:

Manufacturer/exporter	Original final margin (percent)	Amended final margin (percent)
Kejriwal Paper Limited	3.91	3.06

On April 14, 2009, the Department issued the final results of the first administrative review covering Kejriwal and the period April 17, 2006, to August 31, 2007. See Certain Lined Paper Products from India: Notice of Final Results of the First Antidumping Duty Administrative Review; 74 FR 17149 (April 14, 2009). Therefore, in accordance with section 19 CFR 351.212(b), the Department will issue liquidation instructions to U.S. Customs and Border Protection (“CBP”) 15 days after publication of this amended final determination in the Federal Register. Specifically, the Department will instruct CBP to assess antidumping duties, as appropriate, for merchandise produced and/or exported by Kejriwal entered, or withdrawn from warehouse, for consumption in the United States during the periods April 17, 2006, to August 31, 2007, September 1, 2007, to August 31, 2008, September 1, 2008, to August 31, 2009, and September 1, 2009, to August 31, 2010.^[9]

This notice is issued and published in accordance with sections 735(d) and 777(i) of the Tariff Act of 1930, as amended.

April 8, 2011.

Ronald K. Lorentzen,

Deputy Assistant Secretary for Import Administration.

Footnotes

1.  This action includes Court No. 06-00395 and Court No. 06-00399.

2.  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) (“Final Determination”).

3.  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 FR 56949 (September 28, 2006) (“Antidumping Duty Order”).

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

5.  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”).

6.  See AASPS, Slip. Op. 09-136.

7.  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.

8.  See Certain Lined paper Products from India: Notice of Court Decision not in Harmony with Final Determination of Sales at Less Than Fair Value, 74 FR 68779 (December 29, 2009) (“Timken Notice”).

9.  See Certain Lined Paper Products from India: Notice of Final Results of the First Antidumping Duty Administrative Review, 74 FR 17149 (April 14, 2009); Certain Lined Paper Products from India: Notice of Final Results of Antidumping Duty Administrative Review, 75 FR 7563 (February 22, 2010); Certain Lined Paper Products From India: Notice of Final Results of Antidumping Duty Administrative Review and Partial Rescission of Antidumping Duty Administrative Review, 76 FR 10876 (February 28, 2011); and Initiation of Antidumping and Countervailing Duty Administrative Reviews, 75 FR 66349 (October 28, 2010), respectively. Kejriwal was not reviewed in the 07-08, 08-09, and 09-10 administrative reviews of CLPP from India. See also Memo from Christopher Hargett through Melissa Skinner to the File, dated April 08, 2011, entitled “Certain Lined Paper Products from India: Kejriwal Liquidation Instructions (4/17/2006-8/31/2010)” for a detailed discussion on liquidations for Kejriwal.