Slip Op. 12-69 

UNITED STATES COURT OF INTERNATIONAL TRADE 

FUWEI FILMS (SHANDONG) CO., LTD., 

 Plaintiff, 

 v. 

UNITED STATES, 

 Defendant. 

 Before: Leo M. Gordon, Judge 

Consol. Court No. 11-00061 

OPINION and ORDER 

[Administrative review results remanded.] 

 Dated: June 1, 2012 

David J. Craven, Riggle & Craven, of Chicago, IL, for Plaintiffs Fuwei Films 

(Shandong) and Shaoxing Xiangyu Green Packing Co., Ltd. 

 David D’Alessandris, Trial Attorney, Commercial Litigation Branch, Civil Division, 

U.S. Department of Justice, of Washington, DC, for Defendant United States. With him 

on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director 

and Patricia M. McCarthy, Assistant Director. Of Counsel on the brief was Whitney 

Rolig, Office of the Chief Counsel for Import Administration, International Trade 

Administration, Department of Commerce, of Washington, D.C. 

 Ronald I. Meltzer, Patrick J. McLain, David M. Horn, and Jeffrey I. Kessler, 

Wilmer, Cutler, Pickering, Hale and Door, LLP, of Washington, DC, for DefendantIntervenors DuPont Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and Toray 

Plastics (America), Inc. 

 Gordon, Judge: This consolidated action involves an administrative review 

conducted by the U.S. Department of Commerce (“Commerce”) of the antidumping duty 

order covering Polyethylene Terephthalate (“PET”) Film from the People’s Republic of 

China. See Polyethylene Terephthalate Film from the People’s Republic of China, 
Consol. Court No. 11-00061 Page 2 

76 Fed. Reg. 9,753 (Dep’t of Commerce Feb. 22, 2011) (“Final Results”) and 

accompanying Issues and Decision Memorandum, A-570-924 (Feb. 14, 2011), available 

at http://ia.ita.doc.gov/frn/summary/prc/2011-3909-1.pdf (last visited June 1, 2012) 

(“Decision Memorandum”). Before the court are motions for judgment on the agency 

record filed by Fuwei Films (Shandong) Co., Ltd., and Shaoxing Xiangyu Green Packing 

Co., Ltd. (“Green”), respondents in the administrative proceeding (collectively 

“Respondents”), and DuPont Teijin Films, Mitsubishi Polyester Film, Inc., SKC, Inc., and 

Toray Plastics (America), Inc. (collectively “DuPont”), petitioners in the administrative 

proceeding. The court has jurisdiction pursuant to Section 516A(a)(2)(B)(iii) of the Tariff 

Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2006),1

 and 28 U.S.C. § 

1581(c) (2006). 

 Respondents challenge Commerce’s (1) surrogate valuation of labor inputs, (2) 

alleged clerical errors for Green’s packing material and per-unit electricity and water, 

and (3) surrogate valuation of PET chips. 2 DuPont also challenges the surrogate 

valuation of Respondents’ PET chips. For the reasons set forth below, this matter is 

remanded to Commerce. 

I. Standard of Review 

 For administrative reviews of antidumping duty orders, the court sustains 

determinations, findings, or conclusions of the U.S. Department of Commerce unless 

 

1 Further citation to the Tariff Act of 1930, as amended, are to the relevant provisions of 

Title 19 of the U.S. Code, 2006 edition.

2 PET chips are the primary raw material for production of PET film.
Consol. Court No. 11-00061 Page 3 

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). More specifically, when reviewing 

agency determinations, findings, or conclusions for substantial evidence, the court 

assesses whether the agency action is reasonable given the record as a whole. Nippon 

Steel Corp. v. United States, 458 F.3d 1345, 1350-51 (Fed. Cir. 2006). Substantial 

evidence has been described as “such relevant evidence as a reasonable mind might 

accept as adequate to support a conclusion.” DuPont Teijin Films USA v. United 

States, 407 F.3d 1211, 1215 (Fed. Cir. 2005) (quoting Consol. Edison Co. v. NLRB, 305 

U.S. 197, 229 (1938)). Substantial evidence has also been described as “something 

less than the weight of the evidence, and the possibility of drawing two inconsistent 

conclusions from the evidence does not prevent an administrative agency's finding from 

being supported by substantial evidence.” Consolo v. Fed. Mar. Comm'n, 383 U.S. 607, 

620 (1966). Fundamentally, though, “substantial evidence” is best understood as a 

word formula connoting reasonableness review. 3 Charles H. Koch, Jr., Administrative 

Law and Practice § 9.24[1] (3d. ed. 2011). Therefore, when addressing a substantial 

evidence issue raised by a party, the court analyzes whether the challenged agency 

action “was reasonable given the circumstances presented by the whole record.” 

Edward D. Re, Bernard J. Babb, and Susan M. Koplin, 8 West's Fed. Forms, National 

Courts § 13342 (2d ed. 2010). 
Consol. Court No. 11-00061 Page 4 

II. Discussion 

A. Voluntary Remand 

 Commerce has requested a voluntary remand to (1) address Respondents’ 

arguments regarding the surrogate value for the labor input, and (2) correct a clerical 

error in Green’s per-unit water and electricity costs, which the court will 

grant. See SKF USA Inc. v. United States, 254 F.3d 1022, 1029 (Fed. Cir. 2001). 

B. Green’s other Clerical Error Allegation 

 When calculating Green’s packing material expenses for the preliminary results, 

Commerce included a space between a parenthesis and a slash mark in a line of 

computer code. Green did not raise this issue in its case brief, nor did Green raise the 

issue as a clerical error submission following issuance of the Final Results. Green has 

instead raised this issue for the first time in its opening brief in this action, alleging that 

the extra space caused an error in the conversion (or non-conversion) of units from tons 

to kilos. 

The extra space actually has no effect whatsoever on the calculation. Defendant 

explains that the software computes each instruction line as a whole. Def.’s Br. at 16 n. 

5, Nov. 30, 2011, ECF No. 55 (quoting SAS Institute, Inc., SAS 9.3 Language 

Reference: Concepts 21 (Cary, NC SAS Institute, Inc. 2011) (“A blank [space] is not 

treated as a character in a SAS statement unless it is enclosed in quotation marks . . . 

[t]herefore, you can put multiple blanks any place in a SAS statement where you can 

put a single blank. It has no effect on the syntax.”). In its reply brief, Green raises an 
Consol. Court No. 11-00061 Page 5 

entirely new argument about an apparently different clerical error affecting the 

converted or calculated weight of Green’s plastic caps. See Respondents’ Reply Br. at 

11-12, Jan. 4, 2012, ECF No. 58-1 (“Plaintiffs initially believed that this error was 

reflected in the identified instruction. Apparently it was not.”). The time of one’s reply 

brief, however, is not the opportune moment to figure out the specifics of one’s 

argument, and introduce a brand new theory. See Scheduling Order at 6, July 14, 

2011, ECF No. 36 (“The reply brief may not introduce new arguments.”). The court will 

therefore sustain Commerce’s treatment of Green’s packing expenses. 

C. Surrogate Valuation of PET Chip Inputs 

When valuing the factors of production in a non-market economy proceeding, 

Commerce must use the “best available information” when selecting surrogate data 

from “one or more” surrogate market economy countries. 19 U.S.C. § 1677b(c)(1), (4). 

Commerce's regulations provide that surrogate values should “normally” be publicly 

available and from a single surrogate country. 19 C.F.R. § 351.408(c) (2008). 

Commerce prefers data that reflects a broad market average, is publicly available, 

contemporaneous with the period of review, specific to the input in question, and 

exclusive of taxes on exports. Certain Pneumatic Off–the–Road Tires from the People's 

Republic of China, 73 Fed. Reg. 40,485 (Dep't of Commerce July 15, 2008) and 

accompanying Issues and Decision Memorandum cmt. 10 at 26, A–570–912 (July 7, 

2008), available at http://ia.ita.doc.gov/frn/summary/PRC/E8–16156–1.pdf (last visited 

this date). 
Consol. Court No. 11-00061 Page 6 

“[T]he process of constructing foreign market value for a producer in a nonmarket 

economy country [using surrogate values] is difficult and necessarily imprecise.” Nation 

Ford Chem. Co. v. United States, 166 F.3d 1373, 1377 (Fed. Cir. 1999) (citation 

omitted) (internal quotation marks omitted). Importantly, Commerce’s surrogate value 

decision or data choice is not rendered unreasonable because an alternative inference 

or conclusion could be drawn from the administrative record. Daewoo Elec. Co. v. Int’l 

Union of Elec., Elec., Tech., Salaried & Mach. Workers, 6 F.3d 1511, 1520 (Fed. Cir. 

1993). Rather, the court will upset Commerce’s surrogate valuation only if no 

“reasonable mind could conclude that Commerce chose the best available information.” 

Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333, 1341 (Fed. Cir. 

2011) (quoting Goldlink Indus. Co. v. United States, 30 CIT 616, 619, 431 F. Supp. 2d 

1323, 1327 (2006)) (internal quotation marks omitted). 

In determining the “best available information” to value Respondents’ PET film 

inputs of bright polyester and master batch (“BP&MB”) PET chips, Commerce needed 

to determine which provision of the Harmonized Tariff Schedule (“HTS”) of India (the 

primary surrogate country) best applied to Respondents’ BP&MB chips. This was an 

involved undertaking:

When selecting surrogate values with which to value the FOPs used to 

produce subject merchandise, the Department is directed to use the “best 

available information” on the record. See Section 773(c)(1) of the Act. As 

noted by Petitioners, when selecting surrogate values for use in an NME 

proceeding, the Department’s preference is to use, where possible, a 

range of publicly available, non-export, tax-exclusive, and product-specific 

prices for the POR, with each of these factors applied non-hierarchically to 

the particular case-specific facts and with preference to data from a single 
Consol. Court No. 11-00061 Page 7 

surrogate country. In the Preliminary Results, the Department selected a 

surrogate value based on an eight-digit basket category that was the most 

specific on record to the input in question. The Department valued PET 

chips with HTS 3907.60.20, “Polyethylene Terephthalate With Intrinsic 

Viscosity >= 0.64 Dl/G & <=0.72 Dl/G,” the HTS subheading applicable to 

Respondents’ FOPs for PET chips with the intrinsic viscosity meeting this 

description. However, the Department has reviewed the additional factual 

information placed on the record by Respondents regarding the 

methodologies employed for measuring intrinsic viscosity and, after further 

review of the certificates of analysis submitted by Respondents, the 

Department has determined that there is insufficient evidence on the 

record to support the selection of HTS 3907.60.20 as the only surrogate 

value for the inputs that comprise all, or nearly all, of Respondents’ direct 

materials, and the great majority of Respondents’ cost of manufacturing. 

Therefore, for the final results, the Department has determined to use the 

GTA Indian import data under both HTS subheadings 3907.60.10 and 

3907.60.20. Data for both subheadings are publicly available, broad 

market averages, contemporaneous with the POR, tax-exclusive, and 

representative of significant quantities of imports, thus satisfying critical 

elements of the Department’s surrogate value test. 

Respondents have argued that the customs service of the Indian 

government uses a different testing methodology for calculating intrinsic 

viscosity than those used by Respondents in their questionnaire 

responses. Information on the record regarding testing methods in India, 

i.e., a letter from an Indian customs official secured by Respondents’ 

counsel during the less than fair value investigation, indicates that to 

correctly classify merchandise entering India, importers should have 

intrinsic viscosity details for their product(s) based on ASTM standards. 

The letter, dated April 7, 2008, was written only six months prior to the 

beginning of the POR. Further, Respondents have also submitted 

information regarding intrinsic viscosity testing methods commonly used in 

the PRC, which are testing methods conforming to those set forth by ISO, 

but which are not the same as the ASTM testing protocol for measuring 

PET chip intrinsic viscosity used in India. Finally, the Department has 

reviewed the submission of the DuPont Group, respondents in the 

investigation, which Respondents submitted to the record of this review 

subsequent to the Preliminary Results. In the investigation, the DuPont 

Group submitted to the public record a list of its suppliers, the PET chips 

that it purchased from each supplier, the PET chip intrinsic viscosity by the 

suppliers’ specification and, finally, conversions of these intrinsic viscosity 

values to demonstrate what the values would be using other testing 
Consol. Court No. 11-00061 Page 8 

methods. Thus, Respondents’ submitted factual information indicates that 

there are several different testing methods for measuring the intrinsic 

viscosity of PET chips, which differ based upon the nature and proportion 

of solvents used in the testing process. The actual testing method used to 

measure the intrinsic viscosity of PET chips is done at the discretion of the 

tester. Depending upon the testing method used, the intrinsic viscosity of 

PET chips could be measured either above or below the 0.64 Dl/G 

threshold which defines HTS 3907.60.20. 

The record evidence in this review supports the Department’s use of HTS 

3907.60.20 as we concluded in our Preliminary Results. Nevertheless, we 

reviewed again the certificates of analysis that Respondents submitted to 

the record prior to the Preliminary Results, and it appears from the record 

that the testing method used by Respondents’ suppliers to provide the 

intrinsic viscosity values reported on the certificates is not disclosed. 

Further, the certificates of analysis for Respondents’ PET chips indicates 

that at least some of Respondents’ PET chips have an intrinsic viscosity 

very near the 0.64 Dl/G threshold which defines the upper limit of HTS 

3907.60.10, and the lower limit of HTS 3907.60.20. Due to the absence of 

record evidence that would provide the Department with information for 

determining the correct intrinsic viscosity and the most accurate HTS 

subheading, the Department believes that some of Respondents’ PET 

chips match the description for HTS 3907.60.10. Moreover, as the bright 

polyester chip FOP and master batch chip FOP make up the vast majority 

of the cost of manufacturing for Respondents, it is critical in this instance 

that the Department applies a comprehensive valuation for the inputs at 

issue. 

Respondents and Bemis have noted various PET chip quantity and value 

examples on the record for other India HTS subheadings, and argued that 

the quantity in the surrogate value used in the Preliminary Results (i.e., 

HTS 3907.60.20) is lower when compared to these examples. In 

particular, Respondents have contrasted the quantity of HTS 3907.60.20 

with the greater merchandise quantity of HTS 3907.60.10, the HTS 

subheading used to value DuPont Group’s PET chip input in the original 

investigation. Respondents have presented information showing that the 

adjacent HTS 3607.60.10 represents a more reliable quantity than the 

Indian HTS 3907.60.20. Generally, the Department’s practice has found 

that the existence of lower commercial quantities and higher prices alone 

does not necessarily indicate that price data are distorted or 

misrepresented and, thus, are not sufficient to exclude particular surrogate 

values absent specific evidence that the values are otherwise aberrational. 
Consol. Court No. 11-00061 Page 9 

Moreover, as stated in the preceding paragraph, the Department has 

determined to apply an equal balance of all surrogate values that are, or 

could potentially be applicable to, Respondents’ PET chips. Therefore, 

due to: (1) the reasonable likelihood that Indian HTS 3907.60.10 may be 

applicable, at least in part, to Respondents’ inputs; and (2) the magnitude 

of the surrogate value in relation to Respondents’ cost of production, the 

Department has applied the simple-average of the two weighted-average 

unit values of Indian HTS subheadings 3907.60.10 and 3907.60.20 to 

calculate the surrogate values for bright polyester chips and master batch 

chips in order to calculate as accurately as possible Respondents’ 

antidumping margins for the final results. The information on the record 

supports a finding that both HTS subheadings may be equally applicable 

to Respondents’ inputs. The Department has applied the simple-average 

of the two weighted-average unit values of the Indian HTS subheadings 

3907.60.10 and 3907.60.20, and not a weighted-average unit value of all 

merchandise under these HTS subheadings, to avoid an imbalanced 

result due to the greater merchandise quantity of HTS 3907.60.10. 

Finally, Respondents have submitted Infodrive India data as a 

corroborative tool to show that the GTA surrogate value data are distorted. 

Due to the Department’s well-established reservations regarding the use 

of Infodrive data, either as a corroborative tool or price benchmark, the 

viability of this particular Infodrive dataset (and, thus, Respondents’ claims 

that the GTA data are distorted) must be analyzed in accordance with 

Department practice and policy regarding the use of Infodrive data. The 

Department has stated that it will consider Infodrive data to further 

evaluate import data, provided: (1) there is direct and substantial evidence 

from Infodrive reflecting the imports from a particular country; (2) a 

significant portion of the overall imports under the relevant HTS category 

is represented by the Infodrive India data; and (3) distortions of the 

surrogate value in question can be demonstrated by the Infodrive data; but 

that the Department will not use Infodrive data when they do not account 

for a significant portion of the imports which fall under a particular HTS 

subheading. 

On point (1), all countries but one that are reported in GTA for HTS 

3907.60.10 are reported in the Infodrive data, and the Infodrive data for 

HTS 3907.60.20 do indicate shipments from Germany to India as shown 

in GTA. Regarding point (2), we find that the Infodrive India is underinclusive, representing only 48.44 percent of POR value and 53.05 

percent of POR quantity for Indian HTS 3907.60.10, and only 79.16 

percent of POR value and 84.72 percent of POR quantity for Indian HTS 
Consol. Court No. 11-00061 Page 10 

3907.60.20, as reported in the official source. Over half of the value in 

HTS 3907.60.10, and one-fifth of the value in HTS 3907.60.20, based on 

official Indian import statistics is not accounted for by the Infodrive. 

Information in this unaccounted for portion of the actual entries may 

contradict the claim that these HTS numbers produce a distortive average 

value. In numerous cases, the Department has rejected Infodrive data 

because they did not account for a significant portion of the overall official 

import data. If the Department considers that Infodrive information is not 

conclusive regarding the validity of the surrogate value based on HTS 

3907.60.10 and HTS 3907.60.20, the Department may continue to apply 

the surrogate value. As to point (3), Respondents and Bemis have not 

provided any benchmarks to show that the AUVs are abnormally high or 

the quantity is abnormally low. Furthermore, Infodrive India data are 

collected by a private party that only reviews bills of lading for commercial 

descriptions. The data in Infodrive may differ from the actual entries of the 

shipments as recorded in the Indian official import statistics. 

In sum, the Department has applied the simple average of the two 

weighted-average unit values of the Indian HTS subheadings 3907.60.10 

and 3907.60.20 to calculate the surrogate values for bright polyester chips 

and master batch chips for the final results. Further, Respondents’ 

submitted Infodrive India data are not a reliable basis for the Department 

to abandon the surrogate value calculated by the Department in the 

Preliminary Results, as doing so would require a speculative interpretation 

of the data, and also because the data are an under-inclusive portion of 

the officially reported Indian import data. Therefore, because there is 

insufficient evidence that Indian HTS 3907.60.20 should be used 

exclusively for valuing Respondents’ PET chips, as mentioned above for 

the final results, we will value Respondents’ PET chip inputs using Indian 

import statistics HTS subheadings 3907.60.10 and 3907.60.20. 

Because the Department has not departed from its selection of India as 

the surrogate country and has maintained the application of the selected 

surrogate value from India for PET chips in this AR, the Department need 

not address Respondents’ arguments against the application of surrogate 

values from Thailand, and surrogate values from other potential surrogate 

countries that may or may not have been properly translated. 

Decision Memorandum at 12-16 (footnotes omitted). 

Both Respondents and DuPont challenge Commerce’s surrogate valuation of 

Respondent’s PET chips as the “best available information,” 19 U.S.C. § 1677b(c)(1). 
Consol. Court No. 11-00061 Page 11 

DuPont argues that the administrative record supports HTS 3907.60.20 as the one, 

true, correct data source for Respondents’ PET chips, while Respondents argue that 

HTS 3907.60.10 is the one, true, correct data source. 

During the review Respondents submitted test certificates from their suppliers 

that showed intrinsic viscosities (“IVs”) between 0.64 and 0.72 dl/g, placing them 

squarely under HTS 3907.60.20 if the testing method (ISO or ASTM) is ignored. The 

certificates did not identify the testing method used to calculate the IVs. Respondents 

addressed this problem indirectly by relying on submissions from the investigation that 

had been provided by the “DuPont Group,” which consisted of the participating 

mandatory respondent, DuPont Teijin Films China Limited, together with DuPont Teijin 

Hongji Films Ningbo Co., Ltd., and DuPont-Hongji Films Foshan Co., Ltd.—all apparent 

affiliates of the petitioner here, DuPont Teijin Films. In the investigation the DuPont 

Group argued, and Commerce agreed, that the correct surrogate value measure was 

3907.60.10, not 3907.60.20. Issues and Decision Memorandum for Final Determination 

of Sales at Less than Fair Value: Polyethylene Terephthalate Film, Sheet, and Strip 

from the People’s Republic of China at 2-3, A-570-924 (Sept. 17, 2008), available at 

http://ia.ita.doc.gov/frn/summary/prc/E8-22454-1.pdf (last visited this date). The DuPont 

Group (1) explained and documented that ISO tests produce higher IVs than ASTM 

tests, and (2) submitted detailed charts recalculating the DuPont Group’s IVs under 

ASTM standards. Commerce, though, did not address these submissions, relying on 

different reasons to favor HTS 3907.60.10 over 3907.60.20 (import statistics for 
Consol. Court No. 11-00061 Page 12 

3907.60.20 contained an insignificant quantity of imports not representative of the 

DuPont Group’s PET chip purchase volume or consumption experience). Id. With this 

background in mind, the court first addresses DuPont’s arguments, then Respondents’. 

1. DuPont’s Arguments 

At the outset, the court must note that DuPont has assumed a somewhat difficult 

position by arguing that HTS 3907.60.20 constitutes the only proper dataset (for 

Respondents PET Chips) shortly after the DuPont Group successfully argued in the 

investigation that HTS 3907.60.10 is the only proper dataset (for the DuPont Group’s 

PET chips). Here the main thrust of DuPont’s argument is that Commerce’s decision to 

include HTS 3907.60.10 in its surrogate valuation is conjectural. See DuPont Br. at 5-8, 

ECF No. 46-2. “Conjecture” though is not really a word that springs to mind after 

reading Commerce’s detailed analysis quoted above, which does not appear to be the 

product of mere guesswork. DuPont’s contention is also a surprising, if unfair, 

characterization given the position the DuPont Group assumed in the investigation. 

DuPont argues that Commerce’s conclusion that the ISO standard is “commonly” 

used in China (and by extension, Respondents) is conjecture. DuPont Br. at 5-7. 

DuPont builds its argument from a cherry-picked statement in China Nat'l Machinery 

Import & Export Corp. v. United States, 27 CIT 255, 268, 264 F. Supp. 2d 1229, 1240 

(2003) ("CMC I"), “Conjectures are not facts and cannot constitute substantial 

evidence." DuPont, however, neglects to cite or discuss the subsequent history of 

CMC I, in which Commerce maintained its original position on remand, Court No. 01-
Consol. Court No. 11-00061 Page 13 

01114, May 16, 2003, ECF No. 40, which the court then sustained as reasonable 

despite its earlier (and ultimately unfounded) concerns about potential “conjecture.” 

See China Nat'l Machinery Import & Export Corp. v. United States, 27 CIT 1553, 293 F. 

Supp. 2d 1334 (2003), aff’d without opinion, 104 Fed. Appx. 183 (Fed. Cir. 2004). 

CMC I, therefore, has limited persuasive value given its subsequent history. 

Here, the question is not whether Commerce engaged in “conjecture” that fails to 

qualify as “substantial evidence,” or that Commerce predicated its decision on mere 

“suspicion,” DuPont Br. at 5-8, (characterizations that are hard to justify given 

Commerce’s detailed analysis above as well as the results of the investigation), but 

simply whether Commerce’s findings and conclusions supporting its ultimate 

determination to use data from HTS 3907.60.10 are reasonable given the 

circumstances presented by the record. DuPont argues that Commerce’s conclusion 

that Chinese producers “commonly” use the ISO standard is unreasonable because the 

administrative record did not contain direct evidence that the ISO standard is universally 

used in China. DuPont’s insistence upon direct evidence is an unusual stance in a 

proceeding in which Commerce determines “surrogate” values that substitute for the 

direct evidence of a respondent’s own accounting. It is all the more curious because 

the statute does not require, nor have the courts imposed, a requirement of evidentiary 

exactitude for Commerce’s surrogate valuations. 

If framed in absolutes, DuPont is correct that the administrative record does not 

establish that everyone in China always uses the ISO standard. The record also does 
Consol. Court No. 11-00061 Page 14 

not establish that the ISO standard is never used in China. Judicial review of 

Commerce’s action here does not depend on absolutes like always or never, but 

instead on whether Commerce’s inference about Respondents’ ISO utilization is 

reasonable given the information on the administrative record. It is. As Defendant 

explains, any lack of documentation explicitly linking Respondents’ inputs to the ISO 

testing method is balanced by the DuPont Group information from the investigation3

demonstrating that Chinese PET chip producers generally use the ISO method, and 

have done so for the models of PET chip that Respondents consumed. Decision 

Memorandum at 13. 

 DuPont also relies on Peer Bearing Company-Changshan v. United States, 35 

CIT ___, ___, 752 F. Supp. 2d 1353, 1369-71 (2011) to argue that if Commerce was 

uncertain about which Indian HTS subheading to apply, it was obligated to explain why 

that data was superior to Thai surrogate value data. Peer Bearing, though, is not 

applicable here. In Peer Bearing the court determined Commerce’s preference for 

using data from a single country unreasonable when the data was demonstrably 

aberrational as compared to certain benchmark prices, and alternative data sources 

could be better corroborated. The issue here focuses on which HTS category is most 

appropriate, not whether the values reported for the HTS categories are aberrational. 

 For the foregoing reasons the court believes DuPont’s arguments regarding 

 

3 Respondents submitted the information from the investigation on the record of the 

administrative review.
Consol. Court No. 11-00061 Page 15 

Commerce’s surrogate valuation of Respondents PET chips lack merit. Given the 

information on the administrative record, it was reasonable for Commerce to include 

data from HTS 3907.60.10 in its surrogate valuation of Respondents’ PET chips. The 

question remains, though, whether a reasonable mind would conclude on this 

administrative record that data from HTS 3907.60.10, and that provision alone, is the 

best available information to value Respondents’ PET chips, or, if not, whether a 

reasonable mind would conclude that Commerce’s simple average of the two HTS 

provisions constitutes the best available information. 

2. Respondents Arguments 

Respondents contend that Commerce’s use of unconverted IV levels from China 

for Indian HTS subheadings is unreasonable (unsupported by substantial evidence), as 

is Commerce’s use of an un-weighted (simple) average of Indian HTS 3907.60.10 and 

Indian HTS 3907.60.20 as the basis for the surrogate value. Commerce ultimately 

determined that a “broader” straddling of import data for HTS 3907.60.10 and HTS 

3907.60.20 is the best available information of Respondents’ PET chip value, and that 

reliance upon the data for only one or the other HTS provisions, or a weighted average 

of both, is not a better surrogate. The court has identified three specific infirmities that 

challenge the reasonableness of Commerce’s determination, each of which requires 

further explanation or reconsideration by Commerce. 

First, Respondents relied on a summary chart prepared by the DuPont Group in 

the investigation covering the ISO-to-ASTM conversions of the models of PET chips 
Consol. Court No. 11-00061 Page 16 

Respondents purchased from certain of the listed suppliers. See, e.g., Respondents’ 

Br. at 8-9 (citing PD 137 at Ex. PSV-8, Ex. 6-H (frm 468) and 6-I (frms 470-71)). 

Considering the record and the arguments, Commerce agreed that Respondents had 

provided additional information showing that “HTS 3607.60.10 represents a more 

reliable quantity than the Indian HTS 3907.60.20” and Commerce found a “reasonable 

likelihood” that Indian HTS 3907.6010 may apply to “some” of Respondents’ PET chips. 

Decision Memorandum at 13-14. This requires amplification. 

Commerce’s statement could be construed as a distinction between 

Respondents’ BP&MB and PETG chip model purchases, but the test report for the latter 

shows an IV level far in excess of even the upper limit of HTS 3907.60.20, implying that 

HTS 3907.60.90 (without regard to the product’s IV level) would be the correct 

classification for that model. Commerce’s stated focus for purposes of valuing 

Respondents’ factors of production, of course, is the IV levels of Respondents’ BP&MB 

chips. Each of the test reports for the BP&MB chips declares a single IV level, without 

indication of uncertainty or standard deviation. If one accepts the logic that the proper 

classification of Respondents’ BP&MB chips in India requires conversion from 

ISO (China) to ASTM (India), then why are only “some” and not all of those chips 

considered within HTS 3907.60.10? And why does that logic also not undermine the 

reasonableness of any continued reliance upon the “stated” facial declarations of the IV 

levels on the BP&MB chip test reports? 

The second matter requiring clarification is Commerce’s consideration of the 
Consol. Court No. 11-00061 Page 17 

record data for HTS 3907.60.20, and specifically Commerce’s finding on the unreliability 

of Infodrive data to corroborate that data. As a matter of practice, Commerce may 

consider Infodrive data as a corroborative tool when (1) there is direct and substantial 

evidence from Infodrive reflecting the imports from a particular country; (2) a significant 

portion of the overall imports under the relevant HTS category is represented by the 

Infodrive data; and (3) distortions of the surrogate value in question can be 

demonstrated by the Infodrive data. Decision Memorandum at 15 (citing Lightweight 

Thermal Paper from the People’s Republic of China, 73 Fed. Reg. 57,329 (Dep’t of 

Commerce Oct. 2, 2008) (final LTFV determination) and accompanying Issues and 

Decision Memorandum at cmt. 9, A-570-920 (Sept. 25, 2008), available at 

http://ia.ita.doc.gov/frn/summary/prc/E8-23271-1.pdf (last visited this date)). Applying 

that framework here, Commerce concluded that the Infodrive data satisfied the first 

prong, but not the second. Commerce, therefore, declined to consider the Infodrive 

data. Decision Memorandum at 16. More specifically, Commerce found the Infodrive 

data for HTS 3907.60.10 under-inclusive as it represented only 48.44 percent of period 

of review by value and 53.05 percent of period of review by quantity as compared with 

GTA data. This finding was reasonable under Commerce’s framework. However, 

Commerce’s finding that the Infodrive data for HTS 3907.60.20 could also not be used 

as a corroborative tool requires further clarification for two reasons. 

First, Commerce concluded the data under-inclusive because they represented 

“only” 79.16 percent by value and 84.72 percent by quantity for HTS 3907.60.20. Id. at 
Consol. Court No. 11-00061 Page 18 

15. As support, Commerce cited Lightweight Thermal Paper. In Lightweight Thermal 

Paper, however, Commerce accepted Infodrive data that represented 88 percent of the 

quantity of country-specific imports. Why does Commerce consider import quantity data 

covering slightly less than 85 percent unreliable, but 88 percent reliable? 

Second, Respondents explained that (1) all of the Infodrive data for HTS 

3907.60.20 for this period of review consisted of non-PET product exported from 

Germany (Respondents’ Br. at 12-13), (2) there is no evidence in the record of what 

product the “missing” data pertained to (15.28 percent by quantity), (3) the quantity 

represented by the “missing” data would be consistent with less than one full shipment, 

(4) the Infodrive data from the investigation showed that the imports were of the same 

non-PET material, and (5) even if all of the unidentified material in HTS 3907.60.20 

(totaled over a 12-month period) were PET chips, the most that such quantity could be 

is 8.20 metric tons, or nearly half of the quantity (totaled over a six-month period) that 

Commerce rejected in the original investigation as insignificant. These appear to be 

sound arguments testing the reasonableness of Commerce’s unwillingness to consider 

as corroboration, the Infodrive data for HRS 3907.60.20. Commerce needs to provide 

an explanation that takes these considerations into account. 

These arguments, in turn, also lead to the third and final matter requiring further 

explanation: Commerce’s use of a simple (as opposed to weighted) average of the two 

HTS data sets. Because Commerce applied the simple average for the first time in the 

Final Results, Respondents did not have the opportunity to challenge that decision 
Consol. Court No. 11-00061 Page 19 

during the administrative review. In their briefs before the court, Respondents have 

raised legitimate concerns that test the reasonableness of Commerce’s use of a simple 

average, which according to Respondents, gives “inordinate weight to a provision [HTS 

3907.60.20] with very small quantities [that] also does not consist of the kind of goods 

[that] comprise the factor of production.” Respondents’ Reply Br. at 8. Commerce 

needs to address the arguments raised by Respondents, see Respondents’ Br. at 14-

17; Respondents’ Reply Br. at 8. 

III. Conclusion

Accordingly, it is hereby 

ORDERED that this action is remanded to Commerce to address Respondents’ 

submissions regarding the surrogate valuation of its labor inputs, as well as the 

inadvertent transposition of Green’s per-unit consumption levels for water and 

electricity; it is further 

ORDERED that the Final Results are sustained with respect to Commerce’s 

calculation of Green’s packing material expenses; it is further 

ORDERED that Commerce on remand clarify or reconsider, as appropriate, the 

issues the court identified regarding Commerce’s surrogate valuation of Respondents’ 

PET chips; it is further 

ORDERED that Commerce shall file its remand results on or before August 1, 

2012; and it is further 

 
Consol. Court No. 11-00061 Page 20 

ORDERED that, if applicable, the parties shall file a proposed scheduling order 

with page limits for comments on the remand results no later than seven days after 

Commerce files its remand results with the court. 

 /s/ Leo M. Gordon 

 Judge Leo M. Gordon 

Dated: June 1, 2012 

 New York, New York