AD Petitioner Contests Paper Plate Exporter's Bid to Add File to Record in AD Suit
Antidumping duty petitioner American Paper Plate Coalition on Nov. 20 pushed back against respondent Fuzhou Hengli Paper's bid to add an "Excel datafile" to the record in the respondent's case against the AD investigation on paper plates from China on the basis that the document was never properly presented to the Commerce Department in the investigation (Fuzhou Hengli Paper v. United States, CIT # 25-00064).
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Fuzhou Hengli launched its case to challenge Commerce's use of adverse facts available against the respondent in the investigation due to alleged insufficiencies in the respondent's submissions regarding the "commingling" of paperboard inputs (see 2511190052). The agency said "Fuzhou Hengli grouped multiple 'basis-weights' of the paperboard input folding box board together, rather than reporting each [folding box board] basis-weight as a separate and distinct [factor of production]" as requested.
The respondent argued that it submitted an attachment to its rebuttal brief during the investigation showing that only "miniscule" (sic) differences exist between "its reporting method and the method Commerce required, post-hoc." Fuzhou Hengli argued that Commerce "lost" the submission and didn't even realize it did so, criticizing the agency for now opposing the respondent's bid to add the attachment to the judicial record.
Joining the government in opposing the motion to add the attachment to the record, the petitioner argued that the document was never "presented to" Commerce during the investigation, since it was only ever submitted as a non-final version. The coalition argued that Commerce never specifically addressed the data in the attachment despite its general response to the respondent's arguments in its rebuttal brief, since the attachment "was never added to the administrative record before the agency."
While Fuzhou Hengli attached upload confirmation pages from Commerce's ACCESS system along with its motion to add the document to the record at the Court of International Trade, the petitioner said the filing receipts show that the respondent "filed a non-final version" of the attachment after filing the non-final version of the rebuttal brief and "not as an entirely separate document from the Rebuttal Brief filing." And while the exporter filed a final version of the rebuttal brief, it didn't do the same for the Excel sheet attachment, the petitioner argued.
The statute said CIT shall review "all information presented to or obtained by" Commerce during the administrative proceeding, and the trade court has held that "a key factor in considering the contents of the administrative record is whether a document was considered by Commerce decision makers in forming the basis for the agency’s decision," the coalition noted. Fuzhou Hengli hasn't argued that Commerce considered the contents of the document or that the agency "acted in bad faith," the petitioner said. Instead, the respondent said it "presented" the document to Commerce, since it submitted the document along with its non-final rebuttal brief.
"Such a claim is illogical," the petitioner said. If Commerce never considered a document in the "decision-making process," then it's not considered "presented to" the agency and thus not part of the record, the coalition argued. Here, the non-final version of the rebuttal brief, which contained the document at issue as an attachment, wasn't added to the record, and only the final version, which didn't have the attachment, was.
“A respondent’s failure to file the final version of a proprietary document does not obligate Commerce to unilaterally redesignate a non-final version as final," the brief said.