Max Fortune Industrial Ltd. et al v. United States

Slip Op. 12-87
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Gregory W. Carman, Judge
Court No. 10-00306
[Plaintiffs’ Motion for Judgment on the Agency Record is denied, Plaintiffs’ Motion for Oral
Argument is denied, and Commerce’s Final Results are affirmed.]
Francis J. Sailer, Andrew Thomas Schutz, Elaine Fang Wang, Mark E. Pardo, and Ned Herman
Marshak, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt, LLP, of New York, NY,
for Plaintiffs.
Loren Misha Preheim, Trial Attorney, Commercial Litigation Branch, Civil Division,
United States Department of Justice, of Washington, DC, for Defendant. On the briefs
were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Reginald T.
Blades, Jr., Assistant Director, United States Department of Justice, and Scott D. McBride,
Senior Attorney, International Trade, United States Department of Commerce, of
Washington, DC.
Adam Henry Gordon and Robert Edward DeFrancesco, III, Wiley Rein, LLP, of Washington,
DC, for Defendant-Intervenor.
MAX FORTUNE INDUSTRIAL LTD., AND
MAX FORTUNE (FZ) PAPER PRODUCTS
COMPANY LTD.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
SEAMAN PAPER COMPANY OF
MASSACHUSETTS,
Defendant-Intervenor.
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Dated: June 18, 2012
OPINION
CARMAN, JUDGE: Plaintiffs Max Fortune Industrial Ltd. and Max Fortune (FZ) Paper
Products Company, Ltd. (collectively referred to as “Max Fortune” or “Plaintiffs”) have
brought this case to challenge the U.S. Department of Commerce’s (“Commerce”) final
results in the fourth administrative review of Certain Tissue Paper Products from the
People’s Republic of China: Final Results of the 2008-2009 Antidumping Duty Admin. Rev., 75
Fed. Reg. 63,806 (Oct. 18, 2010) (“Final Results”). Max Fortune, a respondent in the
underlying review, has moved for judgment on the agency record pursuant to Rule 56.2
of the Rules of the U.S. Court of International Trade. The United States—Defendant in
this case—and Seaman Paper Company of Massachusetts–Petitioner in the underlying
review and Defendant-Intervenor in this case (“Seaman MA,” “Petitioner,” or
“Defendant-Intervenor”)—oppose Plaintiffs’ motion. This Court has jurisdiction
pursuant to 28 U.S.C. § 1581(c) (2006).
For the reasons set forth below, this Court holds that Commerce’s application of
total adverse facts available (“AFA”) is supported by substantial evidence on the record
and otherwise in accordance with law and that Plaintiffs were afforded a fair
proceeding.
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I. BACKGROUND
A. Procedural History of Antidumping Case
On March 30, 2005, Commerce issued an antidumping duty order on certain
tissue paper products from the People’s Republic of China (“PRC”). Notice of Amended
Final Determination of Sales at Less than Fair Value and Antidumping Duty Order: Certain
Tissue Paper Products from the People’s Republic of China, 70 Fed. Reg. 16,223 (Mar. 30,
2005) (“Antidumping Duty Order”). Max Fortune was a respondent in the original1
investigation. All respondents received a 112.64% duty margin, which was also the
country wide rate. Id. at 16,224. Subsequently, four administrative reviews and an
expedited sunset review were conducted. Because of the unusual fluctuation of Max
Fortune’s dumping margin throughout the case history, a summary of Max Fortune’s
duty margins for the corresponding periods of review (“POR”) is set forth below:
While not a mandatory respondent in the original investigation, Max Fortune1
was one of the twelve companies that requested a separate rate, collectively referred to
as “Section A Respondents” by Commerce. Notice of Final Determination of Sales at Less
Than Fair Value: Certain Tissue Paper Products from the People’s Republic of China, 70 Fed.
Reg. 7,475 (Feb. 14, 2005).
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Procedural History of
Antidumping Case
M ax Fortune’s Duty
M argin
Antidumping Duty Order
POR: 7/31/03–12/31/03
Notice of Amended Final Determination of Sales at Less than Fair
Value and Antidumping Duty Order: Certain Tissue Paper Products
from the People’s Republic of China, 70 Fed. Reg. 16,223 (Mar. 30,
2005)
112.64%
1 Administrative Review	st
POR: 9/21/04–2/28/06
Certain Tissue Paper Products from the People’s Republic of China:
Final Results and Final Rescission, In Part, of Antidumping Duty
Admin. Rev., 72 Fed. Reg. 58,642 (Oct. 16, 2007)
0.07%
2 Administrative Review	nd
POR: 3/1/06–2/28/07
Certain Tissue Paper Products from the People’s Republic of China:
Final Results and Final Rescission, in Part, of Antidumping Duty
Admin. Rev., 73 Fed. Reg. 58,113 (Oct. 6, 2008)
0.0%
3 Administrative Review	rd
POR: 3/1/07–2/29/08
Certain Tissue Paper Products From the People’s Republic of China:
Final Results and Partial Rescission of the 2007–2008 Antidumping
Duty Admin. Rev. and Determination Not To Revoke in Part, 74
Fed. Reg. 52,176 (Oct. 9, 2009)
14.25%
4 Administrative Review	th
POR: 3/1/08-2/28/09
Certain Tissue Paper Products from the People’s Republic of China:
Final Results of the 2008–2009 Antidumping Duty Admin. Rev., 75
Fed. Reg. 63,806 (Oct. 18, 2010)
112.64%
Expedited Sunset Review
Certain Tissue Paper Products from the People’s Republic of China:
Final Results of Expedited Sunset Rev., 75 Fed. Reg. 32,910 (June
10, 2010)
112.64%
The fourth administrative review is at issue in this appeal. The POR is March 1, 2008 to
February 28, 2009.
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B. Statement of Facts
On March 2, 2009, Commerce published a notice of opportunity to request an
administrative review of the Antidumping Duty Order. Antidumping or Countervailing
Duty Order, Finding, or Suspended Investigation; Opportunity to Request Admin. Rev., 74
Fed. Reg. 9,077 (Mar. 2, 2009). Petitioner Seaman MA claims that “over the course of
each of these reviews, rumors concerning Max Fortune’s production operations
persisted.” Resp. Br. of Seaman Paper Company of Massachusetts, Inc. (“Def.-Int. Br.”)
at 7. Accordingly, Seaman MA hired a private company, a foreign market researcher
(“FMR”), to investigate Max Fortune’s production operations.2
On March 31, 2009, Commerce received a timely request from Seaman MA to
review Max Fortune. Certain Tissue Paper Products from the People’s Republic of China:
Preliminary Results of the 2008–2009 Admin. Rev., 75 Fed. Reg. 18,812 (Apr. 13, 2010)
(“Preliminary Results”). Consequently, on April 29, 2009, Commerce issued an
antidumping questionnaire to Max Fortune. Id.
On September 15, 2009, the Petitioner alleged that Max Fortune lied to
Commerce about its use of third party suppliers and packers and placed on the agency
record a large number of documents detailing Max Fortune’s sales transactions and
The identity of the FMR is confidential under an Administrative Protective2
Order (“APO”) pursuant to 19 U.S.C. § 1677f(b) and 19 C.F.R. § 351.105.
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supporting the allegations that Max Fortune did not report multiple affiliates and
unaffiliated suppliers of raw materials and converting services involved in their
production of the subject merchandise exported to the United States during the POR.
Letter from Petitioner to Commerce, Re: Submission of Factual Information and
Analysis Regarding Max Fortune, dated September 15, 2009 (C.R. 20) (“Petitioner Sept.3
15 Submission”). These voluminous documents directly tied to specific United Statesth
sales reported by Max Fortune. The FMR obtained these documents from a Chinese
Informant.4
On October 19, 2009, Max Fortune, represented by Shanghai Yuet Fai
Commercial Consulting Company, Ltd., denied both allegations, asserting that none of5
the affiliates, suppliers or services listed by the Petitioner were involved in the
production or sale of its subject merchandise. Letter from Max Fortune to Commerce,
Re: Response to Petitioner’s Factual Info Submission, dated Oct. 19, 2009 (C.R. 22). Max
Fortune explained that it was contracted to pack paper for a Chinese trading company6
“C.R.” refers to the Confidential Record.3
The identity of the Chinese Informant is confidential under the APO.4
This Chinese company represented Max Fortune until the publication of the5
Preliminary Results, when Max Fortune retained U.S.-based counsel Grunfeld,
Desiderio, Lebowitz, Silverman & Klestadt LLP (“Grunfeld”).
The identity of the Chinese trading company is confidential under the APO.6
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and decided to outsource this service to a Chinese processing and packing company.7
Max Fortune stated its involvement with these other two companies were “merely
commission transactions,” and therefore, Max Fortune decided not to list these
transactions or companies in its factors of production (“FOP”) to Commerce. Br. in
Supp. of Pls.’ R. 56.2 Mot. for J. upon the Agency Record (“Pls.’ Mot.”) at 6. Max
Fortune reasserted that it “did not outsource its packing services for its production of
subject merchandise shipped to the United States to any packers or processors during
the POR” and “questioned the veracity of the information provided by” the FMR. Pls.’
Mot. at 7.
On October 26, 2009, Commerce met with the Petitioner to get clarification of the
documents and allegations that it had placed on the record. Def.’s Opp. to Pls.’ Mot. for
J. upon the Agency Record (“Def.’s Opp.”) at 4. Shortly thereafter, there was an
incident that affected the Chinese Informant, which Max Fortune claims compromised8
the authenticity and reliability of the documents placed on the record. Pls.’ Mot. at 7–8.
On December 16, 2009, Commerce conducted a telephonic interview with the
FMR to confirm its credentials and procedures because it noted that the Petitioner’s
“submission had been gathered and analyzed by a foreign market researcher.” Def.’s
The identity of the Chinese processing and packing company is confidential7
under the APO.
The circumstances surrounding the “incident” are confidential under the APO.8
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Opp. at 4.
On December 20, 2009, Commerce issued verification agendas to Max Fortune
and the Chinese Informant. Id. On January 8, 2010, the Chinese Informant appeared as
an interested party in the proceeding for the purposes of the verification. Def.-Int. Br. at
13. From January 11 to 18, 2010, Commerce conducted verification at Max Fortune.
Pls.’ Mot. at 10. Commerce also conducted verification at the Chinese Informant’s
facilities. Def.’s Opp. at 4. Despite the above-referenced incident that affected the9
Chinese Informant, Commerce stated that it was able to verify with “source
documentation in the [Chinese Informant’s] possession” the information that was
placed on the record from the Petitioner. Def.’s Opp. at 20.
Comparing the information from Max Fortune and the Chinese Informant during
verification, Commerce decided that “the Chinese Informant supplied much more
detailed . . . documents on the record with regard to a number Max Fortune’s United
States transactions than those supplied by Max Fortune” and the Chinese Informant’s
documents were “of a higher quality and a larger quantity.” Def.’s Opp. at 20
(emphasis in original).
On April 13, 2010, Commerce issued its preliminary results, applying total AFA
and assigning a 112.64% duty margin to Max Fortune. Preliminary Results at 18,814–815.
The dates of the verification at the Chinese Informant’s facilities are confidential9
under the APO.
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On May 5, 2010, Max Fortune retained U.S.-based counsel who appeared in the
proceeding and also represents Max Fortune in the current litigation. Pls.’ Mot. at 14.
Pursuant to 19 U.S.C. § 1677f(c)(1) and 19 C.F.R. § § 351.304–305, Max Fortune’s new
counsel was permitted to review the proprietary submissions and data. On June 1,
2010, Max Fortune’s counsel asserted that the Petitioner’s submissions were abusively
“over-bracketed.” Letter from Grunfeld to Commerce, Re: Obj. to Petitioner’s Double
Brackets and Claims of Proprietary Treatment, dated June 1, 2010 (P.R. 134; C.R. 55).10
Commerce declined to reveal the name of the FMR, which was double-bracketed, to
Max Fortune or its counsel. Def.’s Opp. at 33–34.
On October 18, 2010, Commerce issued its final results, affirming both its
preliminary application of total AFA and the resultant assignment of a 112.64% duty
margin to Max Fortune. Final Results.
II. STANDARD OF REVIEW
For administrative reviews of antidumping duty orders, this Court sustains
determinations, findings or conclusions 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). This Court must defer to Commerce's reasonable interpretation of a
statute even if it might have adopted another interpretation had the question first arisen
“P.R.” refers to the Public Record.10
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in a judicial proceeding. Zenith Radio Corp. v. United States, 437 U.S. 443, 450 (1978).
III. DISCUSSION
Max Fortune challenges Commerce’s application of total AFA and decision to
keep confidential the documents under the APO as unsupported by substantial
evidence on the record or otherwise not accordance with law. The two issues are
discussed below.
A. Total Adverse Facts Available
The first issue presented is whether Commerce’s application of total AFA is
supported by substantial evidence on the record or otherwise in accordance with law.
Max Fortune contends Commerce’s application of total AFA was improper for two
reasons. First, Max Fortune asserts that Commerce’s “rudimentary . . . verification” of
the Chinese Informant was contrary to established practice of verifying information
with original source documents. Pls.’ Mot. at 20. Max Fortune contends that
Commerce was unable to verify the Chinese Informant’s “information using actual
business documents and records maintained by [the Chinese Informant] in its normal
course of business” during verification. Id. Commerce counters that it was able to
verify and corroborate the information on the agency record with primary “source
documentation” at the Chinese Informant’s facilities during verification.
Second, Max Fortune argues that the Chinese Informant’s documents contained
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numerous irregularities and anomalies, and therefore Commerce should not have relied
on these documents. Pls.’ Mot. at 26. Commerce asserts that a few date and time
inconsistencies in the enormous amount of electronic documentation “do not impugn
the authenticity and integrity of the information contained within all, or even some, of
the electronic submissions.” Issues & Decisions Mem. for the Final Results of the 2008–2009
Admin. Rev. of Certain Tissue Paper Prods. from the People’s Republic of China, at 8 (Oct. 12,
2010) (“I&D Memo”). Commerce advises that it corroborated the information on the
agency record with original source documents, not with electronic documents that
allegedly contained the irregularities. Def.’s Opp. at 15. Commerce further notes that
the Petitioner Seaman MA also provided reasonable explanations for the irregularities
and anomalies. I&D Memo at 8.
Seaman MA supports Commerce’s position that it “reviewed the original source
files” of the Chinese Informant’s “financial statements, sales ledgers, trial balances, and
charts of accounts,” Def.-Int.’s Br. at 15 (emphasis in original), and that the minor11
discrepancies or irregularities in the Chinese Informant’s information could be
explained or were inconsequential, id. at 30. Further, Seaman MA asserts that
Seaman MA asserts that Commerce “carefully tested” the Chinese Informant’s11
information, using techniques that traced and reconciled the orders received from Max
Fortune through the Chinese Informant’s labor, payroll and financial records. Def.-
Int.’s Br. at 15.
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placement of the Chinese Informant’s documents on the record demonstrates that Max
Fortune “altered documents and deliberately submitted incorrect data.” Id. at 37–38.
When presented with two sets of facts and the “totality of the evidence does not
illuminate a black-and-white answer to a disputed issue, it is the role of the expert
factfinder . . . to decide which side’s evidence to believe.” Nippon Steel Corp. et al. v.
United States, 458 F.3d 1345, 1359 (Fed. Cir. 2006). In an antidumping administrative
review, Commerce is the expert factfinder, and “so long as there is adequate basis in
support of [Commerce’s] choice of evidentiary weight,” this Court must defer to
Commerce. Id. at 1358. Under the substantial evidence standard of review, “[e]ven if it
is possible to draw two inconsistent conclusions from evidence in the record, such a
possibility does not prevent [Commerce’s] determination from being supported by
substantial evidence.” Nippon Steel, 458 F.3d at 1358 (quoting Am. Silicon Techs. v. United
States, 261 F.3d 1371, 1376 (Fed. Cir. 2001)).
In the instant case, Commerce was presented with two sets of contradictory
evidence on the record. Respondent Max Fortune claimed that it has a fully integrated
production operation and provided supporting documents. Letter from Max Fortune to
Commerce, Re: Max Fortune Response to Questionnaire Section A, dated June 8, 2009
(C.R. 1); Letter from Max Fortune to Commerce, Re: Max Fortune Response to
Questionnaire Sections C &D, dated July 6, 2009 (C.R. 5). Petitioner Seaman MA
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countered that Max Fortune deliberately misled Commerce and placed on the record a
multitude of supporting documents. Petitioner Sept 15 Submission.th
Because two competing sets of data were placed on the record, Commerce
decided to conduct verifications on both sets of documents. Mem. to the File by
Commerce, Re: Verification of Data Submitted by Chinese Informant, dated Apr. 7, 2010
(C.R. 49); Mem. to the File by Commerce, Re: Verification of Data Submitted by Max
Fortune, dated Apr. 7, 2010 (C.R. 51). While reviewing the Chinese Informant’s original
source documents during an on-site verification, Commerce noted that the Chinese
Informant “kept detailed inventory records for accountability reasons” so that
Commerce was able to verify “detailed books and records” and to directly “tie the
Chinese Informant’s” information to a substantial amount of “Max Fortune’s United
States transactions.” Def.’s Opp. at 12–13.
After it “critically reviewed” both sets of data, Commerce determined that the
Chinese Informant’s documentation was authentic. I&D Memo at 6. Commerce
concluded:
Max Fortune withheld critical information (i.e., the identities of
additional tissue paper suppliers and/or processors associated
with the tissue paper it sold to the United States during the
POR, and their respective factors of production (FOP) data,
and in so doing, significantly impeded this proceeding and
precluded [Commerce] from being able to calculate an accurate
dumping margin for Max Fortune in this review based on its
reported data. Further, we stated that we did not believe that
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the documentation supplied by Max Fortune was the actual
documentation used in the transactions Max Fortune reported
in its questionnaire response when compared against the
documentation supplied by the other company which we also
examined at verification.
Id. at 3; Mem. to the File by Commerce, Re: Whether to Assign [Max Fortune] a Margin
Based on Adverse Facts Available in the Preliminary Results, dated Apr. 7, 2010, at 10
(C.R. 48) (“AFA Memo”); Mem. to the File by Commerce, Re: Analysis of Data-Specific
Items Raised in the Case Brief Submitted by [Max Fortune], dated Oct. 12, 2010 (C.R. 61)
(“Analysis Memo”). Max Fortune’s hypothesis—that if the Chinese Informant’s
documents “had not been placed on the record” then Commerce “would have
concluded that the information submitted by Max Fortune was complete and
accurate”—is inapposite. Pls.’ Mot. at 15.
Upon review of the record and consideration of the pleadings, this Court finds
that there is substantial evidence on the agency record that Commerce conducted
thorough analyses and detailed verifications of the sets of documents from both Max
Fortune and the Chinese Informant. Commerce’s conclusion that the Chinese
Informant’s information was corroborated and verified is supported by substantial
evidence on the record. Contrary to Max Fortune’s assertions, it is the role of the
agency as the factfinder, not of this Court, to determine authenticity between
contradictory sets of documents where both are supported by substantial evidence on
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the record. Nippon Steel, 458 F.3d at 1359. Thus, this Court declines Max Fortune’s
invitation to substitute its judgment for that of Commerce.
Based on a review of “the entire administrative record,” Commerce found that
Max Fortune “did not act to the best of its ability in providing information” to
Commerce so that application of total AFA was “appropriate with respect to Max
Fortune.” I&D Memo at 5. In its capacity as expert factfinder, Commerce analyzed the
agency record, and conducted interviews and verifications. Commerce determined that
“Max Fortune withheld critical information (i.e., the identities of additional tissue paper
suppliers and/or processors associated with the tissue paper it sold to the United States
during the POR, and their respective factors of production (FOP) data),” which
“significantly impeded the proceeding.” I&D Memo at 3, 5.
Pursuant to 19 U.S.C. § 1677e, Commerce is allowed to apply AFA, total or
partial, to a party that does not act to the best of its ability to comply with a request for
information. It is well-established that Commerce enjoys broad discretion “when a
respondent is uncooperative by failing to provide or withholding information.” PAM,
S.p.A. v. United States, 582 F.3d 1336, 1340 (Fed. Cir. 2009). The Federal Circuit recently
reiterated that “Commerce’s ability to apply adverse facts is an important one.” Essar
Steel Ltd. v. United States, 2012 WL 1450024 at *7 (Fed. Cir. 2012) (quoting Rhone Poulenc,
Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990)). Because Commerce found that
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Max Fortune withheld information, which is evidenced on the agency record, it was
within Commerce’s authority to apply total AFA to Max Fortune. AFA Memo, I&D
Memo.
The only point that Plaintiffs and Defendant agree upon, technically, at least, is
that this is a case of first impression in that the documents relied upon by Commerce
were provided by a third party source, the Chinese Informant. I&D Memo at 9. This
Court notes that while the Chinese Informant was a third party when its documents
were placed on the record by the Petitioner, the Chinese Informant entered an
appearance through U.S.-based counsel on January 8, 2010 for the purposes of
participating in the verification and thus became an interested party in the review
pursuant to 19 U.S.C. § 1677(9)(A). The Petitioner properly placed the third party’s
information on the record, and Commerce amply demonstrated that it analyzed and
verified the third party information throughout the record. Accordingly, Court finds
that the timing of the information being placed on the record—when the Chinese
Informant was a third party and before it became an interested party—does not
invalidate Commerce’s verification of and reliance on the documents.
For the foregoing reasons, this Court holds that Commerce’s decision to apply
total AFA to Max Fortune is supported by substantial evidence on the record and
otherwise in accordance with law.
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B. Business Proprietary Treatment
The second issue presented is whether Commerce’s decision to grant confidential
proprietary treatment to the Chinese Informant’s business documents deprived
Plaintiffs of the right to defend themselves and to a fair proceeding. Max Fortune
contends that it “was found guilty of submitting fraudulent documents” to Commerce
“without being afforded the opportunity to confront its accuser . . . or to inspect any of
the evidence” presented by the Chinese Informant. Pls.’ Mot. at 32–33. Commerce
counters that it “may restrict access to limited information for parties subject to an
administrative protective order if there is ‘clear and compelling need to withhold’ that
information ‘from disclosure’” (citing 19 U.S.C. § 1677f(c)(1) and 19 C.F.R. §
351.304(b)(2)(i)). Def.’s Opp. at 33.
Pursuant to 19 C.F.R. § 351.304(b)(2)(i), parties may request that certain
information be double-bracketed, which means that only Commerce is permitted access
to the information. The record indicates that the Petitioner requested that the name of
the FMR be double bracketed because “to reveal that information could prove a danger
to the researcher and the researcher’s methods of obtaining information in the future.”
Def.’s Opp. at 33. Commerce found this explanation compelling and agreed to grant
confidential treatment. Id.
First, this Court points out that this is a civil, not criminal, case, notwithstanding
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the noir-style fashioning of the facts and arguments by the parties. Max Fortune cites to
no statutory or regulatory authority to support its proposition that it has a “right to
confront its accuser,” Pls.’ Mot. at 32, and this Court declines Max Fortune’s plea to read
such a right into an administrative proceeding. Next, this Court recognizes that12
protecting the business name and trade secrets of an information source, supplier, or
other third party is a necessary tool for Commerce to facilitate forthcoming and frank
information gathering during an investigation. Finally, this Court takes seriously any
allegation that a party to a proceeding did not receive fair treatment.
In the instant case, the Petitioner requested that the information identified in
single brackets be released to parties approved by Commerce (i.e., counsel, consultants)
under the APO, while information identified in double brackets be released solely to
Commerce. Def.-Int. Br. at 10. Only the identifying information of the FMR was
double-bracketed, while all the substantive documents were single-bracketed and thus
available to Max Fortune’s counsel. Id. at 10–11. Defendant-Intervenor stresses, and
this Court agrees, that the information that Max Fortune wants released under the APO
is business proprietary information which belongs to the Chinese Informant, even if the
Plaintiff couches its contention in Sixth Amendment terminology but does not12
actually invoke it. The Sixth Amendment is only applicable to criminal prosecutions.
See U.S. Const. amend. VI. See also Pasco Terminals, Inc. v. United States, 83 Cust. Ct. 65,
477 F. Supp. 201, 213 (1979) (“When . . . agencies are conducting nonadjudicative, fact-
finding investigations, rights such as . . . confrontation, and cross-examination generally
do not obtain.”).
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documents contain information about Max Fortune. Def.-Int. Br. at 36. Max Fortune
admits that Commerce “normally does not allow parties (as distinct from their counsel)
access to business proprietary information,” but argues that because Max Fortune’s
circumstances are “extraordinary,” Commerce should have made an exception for Max
Fortune. Pls.’ Mot. at 33. Commerce explained why it declined Max Fortune’s request:
It is Commerce’s policy to allow a respondent access to
proprietary documentation when documentation is
unquestionably the respondent’s own documentation.
However, Commerce does not allow such access in cases like
this case, when the issue concerns the truthfulness of the
respondent’s questionnaire responses and the authenticity of
the documents themselves.
Def.’s Opp. at 30. Commerce’s decision not to make an exception for Max Fortune is
reasoned, conforms with its past practice, and is supported by evidence on the record.
Therefore, this Court will not require Commerce to depart from its past practice of
granting proprietary treatment to business information.
This Court next notes that Max Fortune’s counsel had access to all of the
substantive proprietary documents pertaining to Max Fortune and also that “Max
Fortune was provided with sufficient public information to have notice of, and to
respond to, the allegations made against it.” Def.’s Opp. at 32. Commerce determined
that the public summaries were sufficient to provide a meaningful opportunity for Max
Fortune to respond. Id. Max Fortune contends that it has the right to examine the
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Chinese Informant’s documents and to determine their authenticity, but that is actually
the role of Commerce in an antidumping administrative proceeding. Throughout the
administrative review, Max Fortune had abundant notice of the Petitioner’s allegations
that Max Fortune did not report all of the factors of production. Def.’s Opp. at 32. Max
Fortune’s awareness of the Petitioner’s allegations is evidenced by its own submissions
denying these allegations. Max Fortune Response to Seaman’s Sept. 15, 2009
Submission, dated Oct. 19, 2009 (C.R. 22). Accordingly, Max Fortune’s contention that it
did not receive a fair proceeding is not supported by evidence on the record. Upon a
thorough review of the record, this Court finds that Max Fortune was afforded a
complete and fair proceeding.
For the foregoing reasons, this Court holds that Commerce’s decision to treat
certain information as proprietary is supported by substantial evidence on the record
and otherwise in accordance with law.
IV. CONCLUSION
For the reasons discussed above, Plaintiffs’ Motion for Judgment on the Agency
Record pursuant to Rule 56.2 of the Rules of the U.S. Court of International Trade is
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DRAFT	Court No. 10-00306 Page 21
DENIED, Plaintiffs’ Motion for Oral Argument is DENIED, and Commerce’s Final
Results in the fourth administrative review are AFFIRMED.
/s/ Gregory W. Carman
Gregory W. Carman, Judge
Dated: June 18, 2012
New York, NY
Case 1:10-cv-00306-GWC Document 78 Filed 06/18/12 Page 21 of 23

UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Gregory W. Carman, Judge
Court No. 10-00306
JUDGMENT
This case having been submitted for decision; and the court, after due
deliberation, having rendered a decision herein; now therefore, in conformity with said
decision, it is hereby
ORDERED that Plaintiffs’ Motion for Judgment on the Agency Record be, and
hereby is, denied;
ORDERED that Plaintiffs’ Motion for Oral Argument be, and hereby is, denied;
and it is further
MAX FORTUNE INDUSTRIAL LTD., AND
MAX FORTUNE (FZ) PAPER PRODUCTS
COMPANY LTD.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
SEAMAN PAPER COMPANY OF
MASSACHUSETTS,
Defendant-Intervenor.
Case 1:10-cv-00306-GWC Document 78 Filed 06/18/12 Page 22 of 23

Court No. 10-00306 Page 2
ORDERED that the final results of the fourth administrative review in Certain
Tissue Paper Products from the People’s Republic of China: Final Results of the 2008–2009
Antidumping Duty Admin. Rev., 75 Fed. Reg. 63,806 (Oct. 18, 2010) be, and hereby are,
affirmed.
/s/ Gregory W. Carman
Gregory W. Carman, Judge
Dated: June 18, 2012
New York, NY
Case 1:10-cv-00306-GWC Document 78 Filed 06/18/12 Page 23 of 23