CIT Upholds Commerce AD Circumvention Finding for Vietnam Tissue Paper Company
The Court of International Trade upheld a Commerce Department anti-circumvention ruling that made Vietnamese company Max Fortune’s exports subject to the antidumping duty order on tissue paper products from China (A-570-894). Max Fortune had challenged Commerce’s decision to apply adverse facts available, as well as the agency’s decision to require cash deposits instead of allowing the company to certify the origin of its exports.
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Max Fortune had told Commerce that it was sure no Chinese-origin rolls were used to produce its tissue paper beginning in 2008. But at verification, Commerce found that Max Fortune had Chinese-origin rolls in its inventory into 2010. During the last hour of the five-day verification, Max Fortune offered Commerce documentation on its use of the Chinese-origin rolls, but the agency refused, saying that it didn’t have time to verify the documentation’s accuracy.
Deciding that the evidence it had on Max Fortune’s use of Chinese-origin rolls to produce tissue paper was sparse and unreliable, the agency relied on adverse facts available to decide that Max Fortune continued to export Chinese-origin merchandise to the U.S. after 2008.
Max Fortune argued that Commerce should have accepted the evidence it provided at the end of verification, and the agency’s decision to apply adverse facts available was not supported by the record. The company also said that Commerce should have allowed it to certify the origin of its exports to the U.S., rather than require cash deposits.
But the court said that Commerce was within its right to reject the documentation, “in light of the circumstances and the risk of manipulation of the record.” The agency’s decision to apply adverse facts available was also supported, said CIT. Finally, Commerce’s decision to require cash deposits rather than certification was remedial, and not punitive as Max Fortune had argued, the court said, especially given the company’s lack of cooperation. Max Fortune could participate in an administrative review to show it no longer used Chinese-origin rolls to produce tissue paper, CIT said, and Commerce had offered to initiate a changed circumstances review if it found that to be the case.
(Max Fortune Indust. Co., Ltd. v. United States, Slip Op. 13-52, dated 04/15/13 (public version 04/30/13), Judge Goldberg)
(Attorneys: Ned Marshak of Grunfeld Desiderio for plaintiffs Max Fortune Industrial Co., Ltd.; Max Fortune (Vietnam) Paper Products Co.; Courtney McNamara for defendant U.S. government; Adam Gordon of Wiley Rein for defendant-intervenor Seaman Paper Company of Massachusetts, Inc.)