Albemarle Corp. v. United States , 931 F. Supp. 2d 1280 ( 2013 )

Slip Op. 13-106
UNITED STATES COURT OF INTERNATIONAL TRADE
ALBEMARLE CORP.,
Plaintiff,
and
NINGXIA HUAHUI ACTIVATED CARBON
CO., LTD.,
Plaintiff-Intervenor,
Before: Timothy C. Stanceu, Judge
v.
Consol. Court No. 11-00451
UNITED STATES,
Defendant,
and
CALGON CARBON (TIANJIN) CO., LTD.,
CALGON CARBON CORP. AND NORIT
AMERICAS INC.,
Defendant-Intervenors.
OPINION AND ORDER
[Remanding to the U.S. Department of Commerce the final results of an administrative review of
an antidumping duty order on certain activated carbon from the People’s Republic of China]
Dated: August 15, 2013
Jeffrey S. Grimson, Mowry & Grimson, PLLC, of Washington, DC, for plaintiff
Albemarle Corp. and plaintiff-intervenor Ningxia Huahui Activated Carbon Co., Ltd. With him
on the brief were Kristin H. Mowry, Jill A. Cramer, Susan Lehman Brooks, Sarah M. Wyss, and
Keith F. Huffman.
Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, DC, for plaintiff
Shanxi DMD Corp. With him on the brief were John J. Kenkel and J. Kevin Horgan.
Consol. Court No. 11-00451 Page 2
Francis J. Sailer, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of
Washington, DC, for plaintiffs Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd.,
Beijing Pacific Activated Carbon Products Co., Ltd. and Cherishmet Inc. With him on the brief
were Mark E. Prado, Andrew T. Shutz, and Kavita Mohan.
Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, DC, for defendant. With her on the brief were Stuart F.
Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of counsel on the brief was Devin S. Sikes, Attorney, Office of
the Chief Counsel for Import Administration, U.S. Department of Commerce, of
Washington, DC.
Craig A. Lewis, Hogan Lovells U.S. LLP, of Washington, DC, for defendant-intervenor
Calgon Carbon (Tianjin) Co., Ltd. With him on the brief was Hrishikesh N. Hari.
David A. Hartquist, Kelley Drye & Warren LLP, of Washington, DC, for
defendant-intervenors Calgon Carbon Corp. and Norit Americas Inc. With him on the brief were
R. Alan Luberda and John M. Herrmann II.
Stanceu, Judge: In this consolidated action,1 three plaintiffs challenge the determination
(“Final Results”) the International Trade Administration, U.S. Department of Commerce
(“Commerce” or the “Department”) issued to conclude the third periodic administrative review
of an antidumping duty order on imports of certain activated carbon (the “subject merchandise”)2
from the People’s Republic of China (“China” or the “PRC”). Certain Activated Carbon from
1
The actions consolidated under Consol. Court No. 11-00451, Albemarle Corp. v. United
States, are Ningxia Guanghua Cherishmet Activated Carbon Company, Ltd. v. United States,
Court No. 11-00468 and Shanxi DMD Corp. v. United States, Court No. 11-00475. Order
(Jan. 26, 2012), ECF No. 34.
2
Activated carbon is a powdered, granular, or pelletized carbon product obtained by heat
“activating” various carbon-containing materials, such as wood or coal, with steam or carbon
dioxide gas. See Notice of Antidumping Duty Order: Certain Activated Carbon From the
People’s Republic of China, 72 Fed. Reg. 20,988 (Apr. 27, 2007) (“Order”). The activating
process removes organic materials and creates a porous inner surface in the material. See
Certain Activated Carbon from China, Inv. No. 731-TA-1103, USITC Pub. 3913, at 3
(Apr 2007) (Final) (“ITC Report”). Excluded from the scope of the antidumping duty order is
“chemically-activated” carbon. Order, 72 Fed. Reg. at 20,988. Chemically-activated carbon is
produced by treating the raw materials with chemicals to achieve a similar result through
chemical rather than physical means. ITC Report at 3. Activated carbon is commonly used in
water filtration, food and chemical purification, and emissions filtration. Id.
Consol. Court No. 11-00451 Page 3
the People’s Republic of China: Final Results and Partial Rescission of Third Antidumping Duty
Administrative Review, 76 Fed. Reg. 67,142 (Oct. 31, 2011) (“Final Results”); Issues & Decision
Mem., A-570-904, ARP 3–10 (Oct. 24, 2011) (“Decision Mem.”). The third review covers
entries of subject merchandise made between April 1, 2009, and March 31, 2010 (the “period of
review” or “POR”).
Before the court are three motions for judgment on the agency record brought under
USCIT Rule 56.2. Plaintiff Albemarle Corporation (“Albemarle”) is supported in its Rule 56.2
motion by plaintiff-intervenor Ningxia Huahui Activated Carbon Co., Ltd. (“Huahui”). Mot. for
J. upon the Agency R. pursuant to Rule 56.2 by Pl. Albemarle Corporation and Intervenor-Pl.
Ningxia Huahui Activated Carbon Co., Ltd. (May 18, 2012), ECF No. 43 (“Albemarle Rule 56.2
Mot.”). The two other Rule 56.2 motions are brought by plaintiff Shanxi DMD Corporation
(“Shanxi DMD”), and plaintiffs Cherishmet Inc., Ningxia Guanghua Cherishmet Activated
Carbon Company, Ltd. (“GHC”) and Beijing Pacific Activated Carbon Products Company, Ltd.
(“BPAC”) (collectively, “Cherishmet”), respectively. Mot. for J. on the Agency R.
(May 18, 2012), ECF No. 42 (“Shanxi DMD Rule 56.2 Mot.”); Consol. Pls.’ Rule 56.2 Mot. for
J. upon the Agency R. (May 18, 2012), ECF No. 44 (“Cherishmet Rule 56.2 Mot.”).
Opposing the Rule 56.2 motions are defendant United States and defendant-intervenors
Calgon Carbon Corporation and Norit Americas, Inc. (collectively “CCC”), and Calgon Carbon
(Tianjin) Co., Ltd. (“CCT”). Def.’s Resp. to Pl.’s, Consol. Pls.’, and Pl.-Intervenor’s Mots. for J.
upon the Agency R. (July 30, 2012), ECF No. 57 (“Def.’s Resp.”); Def.-Intervenor’s Br. in Resp.
to Pls.’ Mots. for J. on the Agency R. (July 30, 2012), ECF No. 53 (“CCC’s Resp.”);
Def.-Intervenor Calgon Carbon (Tianjin) Co., Ltd.’s Br. in Opp’n to Pls.’ Rule 56.2 Mot. for J.
upon the Agency R. (July 30, 2012), ECF No. 56 (“CCT’s Resp.”).
Consol. Court No. 11-00451 Page 4
For the reasons discussed herein, the court will order a remand for reconsideration of
certain aspects of the Final Results.
I. BACKGROUND
A. The Parties to the Consolidated Action
Plaintiff Albemarle is a U.S. importer of subject merchandise. Compl. ¶ 5
(Nov. 18, 2011), ECF No. 6 (“Albemarle Compl.”); Certain Activated Carbon From the
People’s Republic of China: Prelim. Results of the Third Antidumping Duty Administrative
Review, and Prelim. Rescission in Part, 76 Fed. Reg. 23,978, 23,979 (Apr. 29, 2011)
(“Preliminary Results”). During the POR, Albemarle imported activated carbon from
plaintiff-intervenor Huahui, a Chinese exporter. Albemarle Compl. ¶ 16; Consent Mot. to
Intervene as a Matter of Right as Pl.-Intervenor 1 (Dec. 2, 2011), ECF No. 13 (“Huahui Mot. to
Intervene”). Plaintiff Shanxi DMD is also a Chinese exporter of activated carbon. Compl. ¶ 5
(Dec. 5, 2011), ECF No. 9 (Court No. 11-00475) (“Shanxi DMD Compl.”). Plaintiffs GHC and
BPAC are producers and/or exporters of subject merchandise, and plaintiff Cherishmet, Inc. is
the U.S. importer affiliate of GHC and BPAC. Compl. ¶ 3 (Nov. 23, 2011), ECF No. 6 (Court
No. 11-00468) (“Cherishmet Compl.”).
Defendant-intervenor CCT is a Chinese producer and exporter of activated carbon, and
defendant-intervenor CCC, the parent company of CCT, is a domestic activated carbon producer
and the petitioner. Consent Mot. to Intervene as of Right 2 (Dec. 6, 2011), ECF No. 18; Mot. for
Leave to Intervene as of Right 2 (Dec. 15, 2011), ECF No. 24; Final Results, 76 Fed. Reg.
at 67,143.
Consol. Court No. 11-00451 Page 5
B. Procedural History
On April 27, 2007, Commerce issued the antidumping order on certain activated carbon
from China. Notice of Antidumping Duty Order: Certain Activated Carbon From the People’s
Republic of China, 72 Fed. Reg. 20,988 (Apr. 27, 2007). Commerce initiated the third
administrative review of that order on May 28, 2010. Initiation of Antidumping &
Countervailing Duty Administrative Reviews, 75 Fed. Reg. 29,976 (May 28, 2010).
Commerce published the preliminary results of the review on April 29, 2011 after
selecting Jacobi Carbons AB (“Jacobi”) and CCT as the only mandatory respondents, and after
identifying India as the primary surrogate country for the purpose of valuing the factors of
production (“FOPs”). Preliminary Results, 76 Fed. Reg. at 23,981. Commerce determined a
preliminary margin of $0.05 per kilogram for CCT and a preliminary de minimis margin for
Jacobi. Id. Commerce also preliminarily assigned a margin of $0.05 per kilogram (“$/kg”) to
the unexamined respondents who had demonstrated entitlement to a rate that was separate of that
assigned to the PRC entity (the “separate rate” respondents), which included Huahui, Shanxi
DMD, BPAC, and GHC. Id.
In the Final Results, issued October 31, 2011, Commerce determined de minimis margins
for both mandatory respondents, Jacobi and CCT. Final Results, 76 Fed. Reg. at 67,145.
Huahui was assigned a margin of $0.44/kg, the margin Commerce assigned to it in the previous
(second) administrative review of the order, while the other separate rate respondents were
assigned a margin of $0.28/kg, the rate Commerce assigned to the separate rate respondents in
the previous review. Id.
Consol. Court No. 11-00451 Page 6
II. DISCUSSION
A. Jurisdiction and Standard of Review
The court exercises jurisdiction under section 201 of the Customs Courts Act of 1980,
28 U.S.C. § 1581(c), pursuant to which the court reviews actions commenced under section
516A of the Tariff Act of 1930 (“Tariff Act”), 19 U.S.C. § 1516a(a)(2)(B)(iii), including an
action contesting the Department’s issuance, under section 751 of the Tariff Act, 19 U.S.C.
§ 1675(a), of the final results of an administrative review of an antidumping duty order.3 In
reviewing the final results, the court will hold unlawful any finding, conclusion, or determination
that is not support by substantial evidence on the record or that is otherwise not in accordance
with law. See 19 U.S.C. § 1516a(b)(1)(B)(i).
B. Claims Asserted in this Litigation
There are four claims in this consolidated action. First, both Albemarle and Shanxi DMD
challenge the Department’s valuation of CCT’s coal-based carbonized materials using Indian
Harmonized Tariff Schedule (“Indian HTS”) subheading 4402.90.10, “Coconut Shell Charcoal.”
Mem. of P. & A. in Supp. of Rule 56.2 Mot. for J. on the Agency R. by Pl. Albemarle Corp. and
Intervenor-Pl. Ningxia Huahui Activated Carbon Co., Ltd. 11, 19-23 (May 21, 2012), ECF
No. 45 (“Albemarle Rule 56.2 Mem.”); Pl.’s Rule 56.2 Mem. in Support of Mot. for J. upon the
Agency R. 2-3 (May 18, 2012), ECF No. 42-2 (“Shanxi DMD Rule 56.2 Mem.”). Second,
Albemarle challenges the Department’s valuation of CCT’s “coal and fines” by-products,
claiming this valuation is unlawful because it is based on findings unsupported by substantial
evidence and, contrary to Department policy, is significantly higher than the Department’s
surrogate value for the coal-based carbonized materials. Albemarle Rule 56.2 Mem. 15-18.
3
Unless otherwise indicated, all statutory citations herein are to the 2006 edition of the
U.S. Code and all citations to regulations are to the 2011 edition.
Consol. Court No. 11-00451 Page 7
Third, Albemarle challenges the $0.44/kg margin that Commerce assigned to Huahui in the Final
Results, while Shanxi DMD and Cherishmet challenge the Department’s assignment of a
$0.28/kg “separate rate” margin to Shanxi DMD, BPAC and GHC, respectively.4 Albemarle
Rule 56.2 Mem. 24-29; Shanxi DMD Rule 56.2 Mem. 8-17; Brief in Supp. of Consol. Pls.’ Rule
56.2 Mot. for J. upon the Agency R. 14-18 (May 18, 2012), ECF No. 44 (“Cherishmet Rule 56.2
Mem.”). Fourth, Shanxi DMD claims that Commerce erred in assigning it a specific, i.e., U.S.
dollar per kilogram, assessment and cash deposit rate rather than an ad valorem rate. Shanxi
DMD Rule 56.2 Mem. 17-25.
As discussed herein, the court decides that on remand Commerce must reconsider (1) the
surrogate values it determined for carbonized materials and coal and fines by-products; (2) the
rate it assigned to certain separate-rate respondents who are parties to this litigation; and (3) its
decision to use a per-unit rather than an ad valorem rate for the cash deposit and assessment rates
applicable to Shanxi DMD.
C. On Remand, Commerce Must Reconsider the Surrogate Values for CCT’s Carbonized
Materials and Coal and Fines By-Products
When determining the normal value of subject merchandise from a nonmarket economy
country such as China, Commerce, applying section 773(c)(1) of the Tariff Act, ordinarily
determines “surrogate” values for “the factors of production utilized in producing the
merchandise” and does so “based on the best available information regarding the values of such
factors in a market economy country or countries” that Commerce considers appropriate.
4
The separate-rate claim is the only claim plaintiffs Cherishmet Inc., Ningxia Guanghua
Cherishmet Activated Carbon Company, Ltd. (“GHC”) and Beijing Pacific Activated Carbon
Products Company, Ltd. (“BPAC”) (collectively, “Cherishmet”) asserted in their Rule 56.2
motion. Consolidated Pls.’ Rule 56.2 Mot. for J. upon the Agency R. (May 18, 2012), ECF No.
44. Other claims asserted in Cherishmet’s complaint are not addressed in the motion and
therefore are abandoned. Compl. ¶¶ 15-19 (Nov. 23, 2011), ECF No. 6 (Court No. 11-00468).
Consol. Court No. 11-00451 Page 8
19 U.S.C. § 1677b(c)(1). The surrogate values Commerce determined for CCT’s use of
coal-based “carbonized material” in producing subject merchandise, and for CCT’s “coal and
fines” by-products derived from processing the coal-based carbonized material, are at issue in
this litigation. Defendant has submitted voluntary remand requests under which Commerce
would reconsider both surrogate values, which requests CCT opposes. For the reasons discussed
below, the court will order Commerce to reconsider both surrogate values.
1. The Surrogate Value for CCT’s Coal-Based Carbonized Material
Carbonized material, the principal material used in producing activated carbon, consists
of “most any solid material that has a high carbon content,” including “coal, wood, coconut
shells, olive stones, and peat.” Certain Activated Carbon from China, Inv. No. 731-TA-1103,
USITC Pub. 3913, at I-5 (Apr. 2007) (Final). Coal is the material most commonly used in
producing activated carbon in the United States and China. Id.
In the Preliminary Results, Commerce calculated the surrogate value of CCT’s
coal-based carbonized material using Global Trade Atlas (“GTA”) import data for Indian HTS
subheading 2704.00.90, “Other Cokes of Coal,” which yielded an average unit value (“AUV”)
of 13,865.83 Rupees per metric ton (“Rs/MT”). Decision Mem. 14; Mem. from Int’l Trade
Specialist to the File 2 (Apr. 22, 2011) (Admin.R.Doc. No. 2138). In the Final Results,
Commerce substantially reduced its surrogate value to 3,796.54 Rs/MT, which reflected an AUV
Commerce obtained from GTA import data for Indian HTS subheading 4402.90.10, “Coconut
Shell Charcoal,” submitted by Jacobi. Letter from Jacobi to the Sec’y of Commerce Ex. 1 (May
19, 2011) (Admin.R.Doc. No. 2164).
Commerce changed its decision in response to comments that mandatory respondent
Jacobi, who is not a party to this action, submitted to Commerce in a case brief. In that brief,
Consol. Court No. 11-00451 Page 9
Jacobi argued that “[t]he Department should value Jacobi’s use of carbonized materials using
coconut shell charcoal classified under HTS 4402.90.10 because ‘other cokes of coal’ is not used
to produce activated carbon.” Letter from Jacobi to the Sec’y of Commerce 1 (June 14, 2011)
(Admin.R.Doc. No. 2204) (“Jacobi Case Br.”). Citing the Department’s Draft Remand
Determination for the first administrative review of the Order,5 Jacobi argued, further, that
“coconut shell charcoal shares similar properties with carbonized material,” namely, “porosity
and adsorption,” and that “those similar properties are essential in the production of activated
carbon.” Id. at 3-4 (citation omitted).
Agreeing with Jacobi’s argument, Commerce valued both Jacobi’s and CCT’s carbonized
materials using import statistics for Indian HTS subheading 4402.90.10 (“Coconut Shell
Charcoal”) and the associated AUV of 3,796.54 Rs/MT. Decision Mem. 14. Citing the
Department’s Final Remand Redetermination for the first administrative review of the Order,
Commerce found that “Other Cokes of Coal” was not specific to substances that are carbonized,
and that the subheading for “Coconut Shell Charcoal” is more product-specific because it
pertains to a material with properties of adsorption and porosity similar to those of carbonized
material and essential in the production of subject merchandise. Id. at 14-15 (citing Final
Remand Redetermination in the First Administrative Review 10-11 (July 26, 2011) (Consol.
Court No. 09-00524)).6 Commerce also noted that the coconut shell charcoal import data were
5
The Department’s Draft Remand Determination in the first administrative review of the
Order on certain activated carbon from the People’s Republic of China was issued pursuant to
this Court’s Opinion and Order in Calgon Carbon Corp. v. United States, 35 CIT __, Slip
Op. 11-21 (Feb. 17, 2011).
6
In Hebei Foreign Trade and Advertising Corp. v. United States, 35 CIT __, __, 807 F.
Supp. 2d 1317, 1319 (Oct. 24, 2011), this Court sustained the redetermination of the surrogate
value for carbonized material value in the first administrative review, id. at n.2.
Consol. Court No. 11-00451 Page 10
contemporaneous with the POR and exclusive of tax and duty, consistent with the Department’s
preferences when selecting surrogate values. Id. at 14.
Albemarle and Shanxi DMD claim that the Department’s revised surrogate value cannot
be sustained because there is no record evidence to support a finding that the determination was
based on the best available information. Albemarle Rule 56.2 Mem. 19-23; Shanxi DMD
Rule 56.2 Mem. 2-3.
At oral argument held on December 13, 2012, the court noted that the record as filed by
Commerce appeared to lack the evidence on which Commerce relied in determining its surrogate
value for carbonized materials, specifically, the evidence on which the Department relied in the
Final Remand Redetermination in the First Review. Oral Tr. 87-88 (Dec. 13, 2012), ECF
No. 84. Defendant agreed to submit the missing materials, and the court entered an order with
dates for that submission and for submission of additional briefing by the parties on the
carbonized material surrogate value issue. Order (Dec. 12, 2012), ECF No. 73. Rather than
submit additional record materials in accordance with the order, defendant moved for a voluntary
remand, under which Commerce would reconsider its surrogate value for CCT’s carbonized
material input and also submit the missing record materials. Def. Mot. for a Voluntary
Remand 2-3 (Dec. 19, 2012), ECF No. 74. Defendant stated as its reason for requesting a
voluntary remand that, the court having ordered the completion of the administrative record, “the
proper course of action at this point is for the Government to seek a voluntary remand to place
the evidence on the administrative record and for the agency to accept comments from the parties
regarding the evidence and to address those comments in a remand.” Id. at 2. Defendant,
accordingly, requested that “the Court vacate its December 13, 2012 order to the extent that it
requires the agency to supplement the record with the evidence related to the surrogate value for
Consol. Court No. 11-00451 Page 11
carbonized material,” and that “[i]n the instant proceeding, Commerce [] be allowed to place the
evidence on the record and consider comments from the parties in the first instance.” Id.CCT filed a response in opposition to defendant’s voluntary remand motion.
Def.-Intervenor Calgon Carbon (Tianjin) Co., Ltd.’s Resp. in Opp’n to Def.’s Mot. for Voluntary
Remand (Dec. 20, 2012), ECF No. 75 (“CCT’s Opp’n to Def.’s Mot.”). CCT argued that a
voluntary remand on the Department’s valuation of its carbonized materials is inappropriate
because the court, by requesting that Commerce supplement the record submitted, “has already
fashioned the appropriate procedure to address the carbonized material claims” and “it is not the
proper role of this Court to effectively delegate to Commerce to decide, after the fact, whether its
contested final decision was supported by substantial evidence.” Id. at 1, 4. CCT also argued
that plaintiffs’ claims regarding the surrogate value of CCT’s carbonized material input “should
be dismissed on exhaustion grounds pursuant to 28 U.S.C. § 2637(d)” because no party before
Commerce commented in opposition to Jacobi’s advocating a change from Indian HTS
subheading 2704.00.90, “Other Cokes of Coal,” to Indian HTS subheading 4402.90.10,
“Coconut Shell Charcoal,” for valuation of CCT’s carbonized material input. Id. at 2; CCT’s
Resp. 15-16.
An agency generally should be allowed a voluntary remand to reconsider its position
provided that “the agency’s concern is substantial and legitimate.” SKF USA Inc. v. United
States, 254 F.3d 1022, 1028-30 (Fed. Cir. 2001). Here, however, the rationale defendant put
forth to explain the basis for the Department’s concern is opaque. Reconsideration of the
carbonized material surrogate value does not necessarily follow merely from the fact that the
agency erred in failing to include in the administrative record submitted to the court the evidence
on which it relied. Defendant offers no reason related to the merits of the decision it wants
Consol. Court No. 11-00451 Page 12
Commerce to have the opportunity to reconsider, nor does defendant provide a convincing
explanation of why the order the court issued upon oral argument is not sufficient. That order
directed the completion of the record and allowed the parties to submit briefing that may address
the additional evidence. In this respect, CCT’s objection to the voluntary remand request has
some merit. However, the court finds reasons to order reconsideration of the carbonized material
surrogate value despite the shortcomings in defendant’s motion.
Although sparse in its justification, defendant’s motion indicates at least that Commerce
desires to reconsider its decision, thus placing CCT in the unfavorable posture of taking a
position on a voluntary remand request that is contrary to the current position of defendant
United States, the party on whose behalf CCT has intervened. Furthermore, as discussed later in
this Opinion and Order, the court sees a need for a remand on the other surrogate value at issue
in this case, which pertains to coal and fines by-products. As the court explains, the two
surrogate value issues are related with respect to an assertion that the Department has a policy of
disfavoring valuations for downstream by-products that exceed those of the upstream material
input.
Finally, the court does not find merit in CCT’s objection grounded in the requirement to
exhaust administrative remedies. As CCT concedes, whether and how the exhaustion
requirement is applied is a matter for the court’s discretion. CCT’s Resp. 15; 28 U.S.C.
§ 2637(d) (“the [court] shall, where appropriate, require the exhaustion of administrative
remedies.”); Corus Staal BV v. United States, 502 F.3d 1370, 1379-80 (Fed. Cir. 2007) (stating
that “applying exhaustion principles in trade cases is subject to the discretion of the judge of the
Court of International Trade”). Here, the Department’s change in position on the carbonized
material surrogate value was announced in the Final Results, after the submission of case briefs.
Consol. Court No. 11-00451 Page 13
See Decision Mem. 14; 19 C.F.R. § 351.309(c)(2) (requiring a party to submit a case brief
“present[ing] all arguments that continue in [its] view to be relevant to [the Department’s] final
determination or final results”).
2. The Surrogate Value for CCT’s Coal and Fines By-Products
In the Preliminary Results, Commerce determined that CCT was eligible for by-product
offsets for “non-activated by-products, such as pressroom powder and non-activated fines.”
Preliminary Results, 76 Fed. Reg. at 23,989. CCT submitted proposed surrogate value
information based on Indian HTS data, which Commerce accepted, resulting in a surrogate value
for its “coal by-product” of 4,860.88 Rs/MT and a surrogate value for its “fines by-product” of
11,319.90 Rs/MT.7 Mem. from Case Analyst to the File 5, Ex. 1 (Apr. 22, 2011) (Admin.R.Doc.
No. 2144). No party having objected to or commented on these determinations, Commerce left
these two by-product surrogate values unchanged in the Final Results. Decision Mem. 1-2. As a
result, the Decision Memorandum did not address issues pertaining to these surrogate values. Id.
Albemarle claims that the by-product surrogate value determinations are unsupported by
substantial evidence and run counter to agency policy “because they result in an unreasonable
and inappropriate inversion” in which the downstream by-products are valued considerably
higher than the upstream carbonized material. Albemarle Rule 56.2 Mem. 3-4, 15. Pointing to
the Department’s revised surrogate value of 3,796.54 Rs/MT for carbonized materials,
Albemarle argues that Commerce should correct the value inversion by reverting to Indian HTS
subheading 2704.00.90, “Other Cokes of Coal,” with a value of 13,865.83 Rs/MT, to value
7
According to Calgon Carbon (Tianjin) Co., Ltd (“CCT”), the fines by-product “is
subject merchandise that is simply smaller in size and thus is generally not sold to customers, but
instead is recycled and used by CCT to produce subject merchandise.” Letter from CCT to the
Sec’y of Commerce: CCT Sections C and D Questionnaire Resp. 19 (Pub. Version)
(Nov. 23, 2010) (Admin.R.Doc. No. 2018) (Section D, Factors of Production Resp.).
Consol. Court No. 11-00451 Page 14
CCT’s carbonized material input, as was done in the Preliminary Results. Id. at 18. Defendant,
while not confessing error, seeks a voluntary remand so that Commerce may reconsider the
surrogate values it assigned to CCT’s coal and fines by-products. Def.’s Resp. 19-20.
CCT seeks to raise various arguments against defendant’s request for a voluntary remand
and moves for the filing of its brief in opposition. Def.-Intervenor Calgon Carbon (Tianjin) Co.,
Ltd.’s Mot. for Leave to File Resp. in Opp’n to Def.’s Req. for Voluntary Partial Remand 3
(Sept. 25, 2012), ECF No. 67 (“CCT’s Opp’n to Def.’s Remand Request”). No party having
objected to CCT’s motion to file its brief, the court grants CCT’s motion and deems the
accompanying brief filed as of September 25, 2012. The court, however, does not agree with the
arguments CCT puts forth.
CCT opposes defendant’s remand request on the grounds that (1) Albemarle did not
exhaust its administrative remedies on the issue of surrogate values for coal and fines
by-products; (2) defendant has offered no reason for requesting a remand; (3) a remand is not
warranted unless error is shown; and (4) a voluntary remand would further delay and complicate
the court’s proceedings, causing a delay of at least the 60 days for the requested remand and
complicating the court’s appellate review “such that the Court likely would have to deal with two
different determinations by the Department (the original final results and the remand results).”
CCT’s Opp’n to Def.’s Remand Request 2-5. The court is not persuaded by these arguments and
will order a remand in response to defendant’s request.
As discussed supra, decisions pertaining to exhaustion of administrative remedies are
matters for the court’s discretion. Here, the court does not consider it appropriate to dismiss
Albemarle’s challenge to the by-product surrogate values for failure to exhaust. The ground on
which Albemarle brings that challenge—a value inversion relative to the value of carbonized
Consol. Court No. 11-00451 Page 15
material—did not become apparent until issuance of the Final Results, when Commerce
announced that it had changed its surrogate value for the carbonized material based on the
argument made by Jacobi.
The court also disagrees with CCT’s assertion that defendant offered no reason for
seeking a remand. In requesting the remand, defendant stated as follows:
Albemarle and Huahui contend that the surrogate values currently assigned to the
coal and fine by-products do not constitute the best information available for these
factors of production and that Commerce’s determination runs counter to agency
practice. Upon reviewing plaintiffs’ motion and without confessing error, we
respectfully request a partial remand for Commerce to reexamine the values
assigned to the by-products.
Def.’s Resp. 19-20 (citations omitted). The court reasonably may infer from the quoted language
that Commerce wishes to reconsider its surrogate values in light of the arguments put forth by
Albemarle, including the argument that the “value inversion” is contrary to the Department’s
practice.
CCT’s third argument, that a remand is not appropriate unless error is shown, is not a
correct statement of the law. An agency need not confess error to obtain a voluntary remand.
SKF, 254 F.3d at 1029.
CCT’s final objection is also without merit. Although a voluntary remand takes some
time, it carries the potential of saving time in that it might avoid a remand later in the proceeding.
The objection that the voluntary remand would complicate the proceeding by requiring the court
to deal with two decisions is not a valid one, as the agency either will reach the same decision on
remand that it reached before or it will reach a different one. In either event, only one decision
will be before the court.
Consol. Court No. 11-00451 Page 16
D. On Remand, Commerce Must Reconsider Its Separate Rate Methodology as Applied to
Unexamined Respondents Shanxi DMD and BPAC and GHC
Albemarle challenges the $0.44/kg margin that Commerce assigned to Huahui in the
Final Results, which was based on Huahui’s individual rate in the previous (second)
administrative review. Albemarle Rule 56.2 Mem. 4. Albemarle argues that “[i]t makes no
sense for Commerce to consider older rates to reasonably reflect margins for the current period
while at the same time rejecting current rates as not representative of the dumping margins of the
separate rate companies.” Albemarle Rule 56.2 Mem. 29.
Both Shanxi DMD and Cherishmet contest the Department’s assignment of a $0.28/kg
margin, which was based on the “separate rate” calculated in the second review, to unexamined
respondents Shanxi DMD and BPAC and GHC, respectively. Shanxi DMD Rule 56.2 Mem. 2;
Cherishmet Rule 56.2 Mem. 2. Shanxi DMD contends that the rate is unreasonable because
Commerce “failed to establish why past data is [sic] more relevant than current data of
mandatory respondents.” Shanxi DMD Rule 56.2 Mem. 15. Similarly, Cherishmet challenges
the $0.28/kg margin assigned to BPAC and GHC on the ground that “the Department has
presented no evidence or reason for diverting from the well-established premise that the Final
Results of a proceeding should be based solely on the facts on the record in that proceeding.”
Cherishmet Rule 56.2 Mem. 14, 16. Albemarle, Shanxi DMD, and Cherishmet request that the
issue be remanded to Commerce so that Commerce may reconsider the margins applied to
unexamined respondents Huahui, Shanxi DMD, and BPAC and GHC, respectively.
When Commerce limits the number of individually examined respondents in an
administrative review, as it did here, it must establish a rate for the remaining cooperative, but
unexamined, respondents who have demonstrated eligibility for a separate rate. The Tariff Act
does not address how Commerce must calculate this separate rate. However, in an investigation,
Consol. Court No. 11-00451 Page 17
section 735(c)(5) of the Tariff Act directs Commerce, initially, to determine the separate rate by
weight-averaging the individual rates calculated for the investigated respondents, excluding de
minimis or zero rates and rates based on facts available. 19 U.S.C.§ 1673d(c)(5)(A). If, pursuant
to section 735(c)(5)(A), all individually investigated respondents’ dumping margins are zero, de
minimis, or based on facts available, section 735(c)(5)(B) directs Commerce to “use any
reasonable method to establish the estimated all others rate for exporters and producers not
individually investigated, including averaging the estimated weighted average dumping margins
determined for the exporters and producers individually investigated.” Id. § 1673d(c)(5)(B).
Because Congress has not given explicit instructions for calculating the separate rate in periodic
administrative reviews, Commerce has a measure of discretion in determining what methodology
to employ. This discretion is not unlimited, however, and Commerce must “articulate a
satisfactory explanation” for its choice of methodology. Yangzhou Bestpak Gifts & Crafts Co.,
Ltd. v. United States, 716 F.3d 1370, 1378 (Fed. Cir. 2013) (“Bestpak”).
In the Preliminary Results, Commerce noted that Huahui, Shanxi DMD, BPAC, and
GHC were among eight firms who met the criteria for separate rate status. Preliminary Results,
76 Fed. Reg. at 23,979. Commerce assigned the qualifying separate rate respondents a rate of
$0.05/kg based on the rate calculated for CCT. Id. at 23,990. Commerce did not include in the
separate rate calculation the de minimis margin assigned to Jacobi. Id. In the Final Results,
Commerce assigned a de minimis margin to both Jacobi and CCT. Final Results, 76 Fed. Reg.
at 67,145. Commerce assigned Huahui the same margin it determined in the second review, i.e.,
$0.44/kg, because Huahui was individually examined in that review. Decision Mem. 4, 7.
Commerce assigned the separate rate respondents other than Huahui a $0.28/kg margin that also
was based on the previous (second) administrative review. Id. at 4-7. This margin was the
Consol. Court No. 11-00451 Page 18
margin Commerce calculated for the unexamined respondents in the second review, which
Commerce had calculated as a simple average. Id.
Noting that the statute is silent on the method to be employed, the Decision
Memorandum submits that the Department’s method of determining a rate for the separate rate
respondents (other than Huahui) is “reasonable” because it represents a “contemporaneous
examination of individually-reviewed respondents exclusive of zero, de minimis and facts
available margins, and reasonably reflects potential dumping margins for the non-selected
companies.” Id. at 5. Further, the Decision Memorandum reasons that the Department’s
methodology is appropriate because there is no record evidence to determine whether Jacobi and
CCT’s pricing behavior in the POR for the third review was representative of that of the separate
rate companies. Id.
The court concludes that Commerce must reconsider the margin it assigned to Shanxi
DMD, BPAC, and GHC. The $0.28/kg margin was not based on data pertaining to any pricing
behavior that occurred in the third POR. Nor was it based on any data pertaining to these
respondents; instead, Commerce reverted to a margin it determined in another review for other
respondents. This margin does not reflect commercial reality with respect to Shanxi DMD,
BPAC, and GHC and is, in that sense, arbitrary. The Department’s statement that this margin is
based on a “contemporaneous examination of individually-reviewed respondents exclusive of
zero, de minimis and facts available margins, and reasonably reflects potential dumping margins
for the non-selected companies,” Decision Mem. 5, is factually incorrect when viewed in the
context of the record evidence of the third review. There is nothing “contemporaneous” about
the margin, and, having no factual relationship to the pricing behavior of the respondents who
received it, the $0.28/kg margin cannot be said to “reasonably reflect potential dumping
Consol. Court No. 11-00451 Page 19
margins” in the third POR. Moreover, the Department’s decision is not justified by its rationale,
as stated in the Decision Memorandum, that that there was no record evidence with which to
determine whether Jacobi and CCT’s pricing behavior in the third POR was representative of
that of the separate rate companies. There is no record evidence to support a finding or a
reasonable inference that the $0.28/kg margin was representative of the separate rate companies’
pricing behavior in the third POR. While the de minimis margins assigned to Jacobi and CCT at
least reflect commercial realities prevailing in the pertinent POR, the same cannot be said for the
margin Commerce assigned to Shanxi DMD, BPAC, and GHC.
The Department’s overriding purpose in administrating the antidumping laws must be “to
calculate dumping margins as accurately as possible.” Bestpak, 716 F.3d at 1379; see also SNR
Roulement v. United States, 402 F.3d 1358, 1363 (Fed. Cir. 2005) (“Antidumping laws intend to
calculate antidumping duties on a fair and equitable basis.”). Commerce selected Jacobi and
CCT as the mandatory respondents because it found that these two respondents were the largest
producer/exporters of subject merchandise during the POR.8 In this respect, the de minimis
margins must be considered more representative of industry-wide pricing behavior during the
POR than the $0.28/kg calculation from the previous review, which bears no rational relationship
to the POR. Commerce ordinarily gives considerable weight to the contemporaneity of data
when conducting periodic administrative reviews. See Decision Mem. 13. As shown by a
comparison with the Preliminary Results, the apparently controlling reason Commerce did not do
8
Commerce asserted these facts in its respondent selection memoranda. See Mem. to the
File (Selection of Resp’ts for Individual Review) 6 (Pub. Version) (July 21, 2010) (Admin.R.Doc.
No. 1873) (selecting Jacobi Carbons AB as a mandatory respondent and stating that Jacobi “is
either the largest or second largest exporter by volume of total U.S. entries during the POR of
certain activated carbon from the PRC under review.”); Mem. to the File (Selection of Additional
Mandatory Resp’t) 5 (Pub. Version) (Sept. 29, 2010) (Admin.R.Doc. No. 1928) (selecting CCT
as a mandatory respondent and stating that “the largest producer/exporter is CCT.”).
Consol. Court No. 11-00451 Page 20
so here was that the margins Commerce assigned to the mandatory respondents in the Final
Results were de minimis.
Defendant argues that the margin Commerce assigned to the separate rate respondents
was permissible because Commerce has “broad discretion to select any reasonable
methodology.” Def.’s Resp. 21. Defendant is correct that Commerce may exercise considerable
discretion in assigning a margin to the separate rate respondents in a review; however, the court
disagrees that the margin Commerce chose was permissible. Where, as here, Commerce actually
examined the sales of what it considered to be the two most representative respondents in the
POR, and no others, that discretion does not permit the arbitrary assignment of a margin that has
no rational relationship to any pricing behavior during the POR or to the likely pricing behavior
of the recipients of the margin.
Defendant also points to the Department’s finding that there were no data on the record to
determine whether the separate rate respondents’ pricing behavior was comparable to that of the
examined respondents during the third administrative review, arguing that this finding supports
the conclusion that the rates calculated during the second review are the most reliable on the
record. Id. at 29 (citing Decision Mem. 6). Defendant further argues that the separate rate
respondents who are plaintiffs in this case have never been assigned a de minimis margin and
therefore are not entitled to one here. Id. at 29. These arguments impliedly acknowledge that the
only reason Commerce changed its methodology from the Preliminary Results was the fact that
both mandatory respondents received a de minimis margin. These arguments are unpersuasive
because there are no record data about the pricing behavior of the separate rate respondents in the
third review from which it could be reasonably inferred that the margin would, or would not, be
a de minimis margin. Moreover, the state of the record is not the fault of the separate rate
Consol. Court No. 11-00451 Page 21
respondents. The available data pertaining to the POR for the third review were limited by the
Department’s decision to individually examine only two mandatory respondents. See Mem. to
the File (Selection of Resp’ts for Individual Review) 6 (July 21, 2010) (Admin.R.Doc. No. 1873)
(selecting Jacobi as a mandatory respondent); Mem. to the File (Selection of Additional
Mandatory Resp’t) 5 (Sept. 29, 2010) (Admin.R.Doc. No. 1928) (selecting CCT as a mandatory
respondent). Commerce made this decision despite its general statutory obligation to examine all
respondents for which a review was requested. See 19 U.S.C §§ 1675(a); 1677f-1(c)(2)
(providing only a narrow exception where Commerce is authorized to limit the number of
individually examined respondents “[i]f it is not practicable to make individual weighted average
dumping margin determinations . . . because of the large number of exporters or producers
involved in the . . . review.”).9 Here, there were eight respondents, including Shanxi DMD,
BPAC, and GHC, who qualified for a separate rate.
The margin Commerce assigned to Huahui, like the margin assigned to the other
plaintiffs, was not based on sales during the POR. However, unlike those margins, it is grounded
9
Paragraph (2) of 19 U.S.C. § 1677f-1(c) provides:
If it is not practicable to make individual weighted average
dumping margin determinations under paragraph (1) because of the
large number of exporters or producers involved in the
investigation or review, the administering authority may determine
the weighted average dumping margins for a reasonable number of
exporters or producers by limiting its examination to—
(A) a sample of exporters, producers, or types of products
that is statistically valid based on the information available
to the administering authority at the time of selection, or
(B) exporters and producers accounting for the largest
volume of the subject merchandise from the exporting
country that can be reasonably examined.
19 U.S.C. § 1677f-1(c)(2).
Consol. Court No. 11-00451 Page 22
in actual sales by Huahui, albeit sales during the previous (second) POR. The court reserves any
decision on whether the margin assigned to Huahui was permissible. Commerce may or may not
decide to assign Huahui a different margin based on other decisions it makes upon remand, and
this Opinion and Order does not preclude Commerce from reconsidering the $0.44/kg margin
assigned to Huahui in the Final Results. The court will consider this question anew upon
reviewing the remand redetermination required by this Opinion and Order.
Defendant-intervenor CCC argues that the Department’s methodology is permissible
because “[p]laintiffs have not demonstrated with substantial evidence that assigning them a zero
average margin would be reasonable, when none of the Plaintiffs has ever had a zero margin
before” and that plaintiffs have not met their burden of “establish[ing] that assigning margins
from previous periods—especially for Huahui which received a margin based upon its own data
from the immediately prior review—is inherently unreasonable.” CCC’s Resp. 17-18. CCC also
contends that “each of the Plaintiffs affirmatively sought to participate in the third administrative
review as a separate rate respondent and, therefore, had no expectation of receiving a precisely
calculated, company-specific margin.” Id. at 15.
The court is not persuaded by CCC’s arguments as they apply to the $0.28/kg separate
rate margin assigned to Shanxi DMD, BPAC, and GHC. The court must review the
Department’s decision according to the substantial evidence standard of review; it would be
unsound to attempt to shift the evidentiary burden to plaintiffs in the way that CCC suggests.
The implied premise underlying CCC’s argument is that Commerce may not assign a de minimis
margin to an unexamined respondent unless that respondent demonstrates with record evidence a
reasonable likelihood that it would have received a de minimis margin had it actually been
examined. In determining a margin for unexamined respondents, Commerce is subject to no
Consol. Court No. 11-00451 Page 23
such restriction but instead must employ a reasonable method for which it provides a rational
explanation. See Bestpak, 716 F.3d at 1378.
E. Commerce Must Reconsider its Decision to Apply a Per-Unit Cash Deposit and Assessment
Rate To Shanxi DMD
Under the applicable regulation, Commerce “normally will calculate an assessment rate
for each importer of subject merchandise covered by the review.” 19 C.F.R. § 351.212(b)(1).
The regulation states, further, that Commerce “normally will calculate the assessment rate by
dividing the dumping margin found on the subject merchandise examined by the entered value of
such merchandise for normal customs duty purposes.”10 Id. Thus, the normal method as
prescribed by the regulation results in an ad valorem assessment rate.
In the Final Results of the previous (second) review, Commerce deviated from the normal
method by changing “the cash deposit and assessment methodology from an ad valorem to a
per-unit basis,” thereby stating margins in dollars per kilogram. Certain Activated Carbon From
the People’s Republic of China: Final Results and Partial Rescission of Second Antidumping
Duty Administrative Review, 75 Fed. Reg. 70,208, 70,209 (Nov. 17, 2010) (“Final Results
AR2”); Issues & Decision Mem., A-570-904, ARP 3–09, at 11-12 (Nov. 9, 2010) (“Decision
Mem. AR2”). The Department made this decision upon a finding that Jacobi, a mandatory
10
19 C.F.R. § 351.212(b)(1) provides that:
If the Secretary has conducted a review of an antidumping
order . . . the Secretary normally will calculate an assessment rate
for each importer of subject merchandise covered by the review.
The Secretary normally will calculate the assessment rate by
dividing the dumping margin found on the subject merchandise
examined by the entered value of such merchandise for normal
customs duty purposes. The Secretary then will instruct the
Customs Service to assess antidumping duties by applying the
assessment rate to the entered value of the merchandise.
19 C.F.R. § 351.212(b)(1).
Consol. Court No. 11-00451 Page 24
respondent and the largest Chinese exporter of subject merchandise in the second POR, was
absorbing antidumping duties. Id. Specifically, Commerce had found that the domestic net unit
price for Jacobi’s entries of certain activated carbon was significantly higher than the entered
value reported to U.S. Customs and Border Protection (“CBP”). Final Results AR2, 75 Fed. Reg.
at 70,209; Decision Mem. AR2 10-11. Commerce concluded that “while [Jacobi’s presumed
duty absorption] does not prevent the Department from calculating appropriate assessment
rates,” a per-unit rate is preferable because duty absorption “can result in the undercollection of
duties by CBP if the Department were to issue cash deposit instructions on an ad valorem basis.”
Decision Mem. AR2 11-12. Commerce further determined that this decision would be applied
“to the order in its entirety” such that per-unit rates will “be applied to all respondents in this
particular administrative review and all future reviews of the order.” Id. at 12.
During the third review, Shanxi DMD filed an administrative case brief challenging the
Department’s continued use of a per-unit methodology. Shanxi DMD argued, inter alia, that
“the per-unit rate benefit[s] companies who sell premium goods at higher costs while low cost
goods are penalized.” Letter from Shanxi DMD to the Sec’y of Commerce 9 (June 13, 2011)
(Admin.R.Doc. No. 2201) (“Shanxi DMD Case Br.”). Shanxi DMD also submitted that “the
Department does not actually resolve the issue at assessment because the Separate Rate
Companies are not assessed antidumping duty margins based on their own data,” and that,
therefore, there is “no rationale” for deviating from the normal practice of establishing the
assessment rate as an ad valorem rate. Id.
In the Final Results, Commerce continued to apply per-unit assessment and cash deposit
rates to all respondents, whether or not individually examined. Final Results, 76 Fed. Reg.
at 67,145. As support for this decision, the Department, referencing its Decision Memorandum
Consol. Court No. 11-00451 Page 25
from the second administrative review, stated that “it would be extremely burdensome to
determine whether to apply an ad valorem or a per-unit rate on a company-specific basis,” and
that “[t]he change in methodology to per-unit assessment rates will not negatively impact these
companies because the total duties due will not change; they will only be allocated over quantity
instead of over entered value.” Decision Mem. 7 (quoting Decision Mem. AR2 12) (internal
quotations omitted). In response to Shanxi DMD’s objections, Commerce stated in the Decision
Memorandum that Shanxi DMD failed to provide any record evidence to rebut the presumption
of continued underselling by Jacobi or to support its claim that the per-unit methodology unfairly
penalizes companies that sell more low-cost subject merchandise. Id. at 8.
Shanxi DMD claims that it was unlawful for Commerce to assign it a per-unit assessment
and cash deposit rate in the third administrative review, invoking the same grounds stated in its
case brief. Shanxi DMD Rule 56.2 Mem. 17-25. The court agrees, concluding that the decision
to assign a per-unit margin is unlawful in three respects and must be remanded to the
Department.
First, Commerce impermissibly grounded its decision in a finding of duty absorption that
not only pertained solely to Jacobi but also pertained to data from a previous review. Decision
Mem. 7-8 (stating that Jacobi’s “behavior was the basis for the Department to use per-unit
assessment rates” in the Final Results of the previous (second) administrative review).
Commerce did not find that Shanxi DMD had engaged in the practice of duty absorption, and it
failed to base its decision to assign Shanxi DMD a per-unit rate based on findings of fact
grounded in the record of the third review. Second, Commerce attempted to justify its decision
upon a finding that Shanxi DMD would not be prejudiced in any way by a per-unit rate. Id. at 7
(citations omitted) (stating that the “change in methodology to per-unit assessment rates will not
Consol. Court No. 11-00451 Page 26
negatively impact [separate rate] companies because the total duties due will not change; they
will only be allocated over quantity instead of over entered value”). The court is aware of no
evidence on the record of the third review to support a finding that importers of Shanxi DMD’s
subject merchandise will not, under any circumstances, pay higher deposits and not be assessed
higher duties than would occur under an ad valorem assessment rate.
Third, Commerce found, without an adequate evidentiary foundation, that “it would be
extremely burdensome to determine whether to apply an ad valorem or a per-unit rate on a
company-specific basis.” Decision Mem. 7 (citations omitted). The court fails to see why
determining Shanxi DMD’s rate as an ad valorem rate would impose a significant burden. Even
if some burden resulted, that burden would not justify a decision that is unsupported by findings
of fact grounded in the record of the third review.
Defendant supports the Department’s determination, arguing that the plain language of
the statute, 19 U.S.C. § 1673e(a)(1), and the accompanying regulation, 19 C.F.R.
§ 351.212(b)(1), do not require Commerce to calculate assessment and cash deposit rates in a
particular manner or limit per-unit rates to particular factual circumstances. Def.’s Resp. 36-37.
According to Defendant, Commerce acted within its discretion in the second administrative
review when it made the global change to per-unit assessment and cash deposit rates and
continued to “properly follow[] its practice” in doing the same in the third review. Id.
at 36-37, 40 (citing Decision Mem. 7-8). Defendant also points to several Court of Appeals
decisions upholding Commerce’s departure from the ad valorem methodology under certain
circumstances. Id. at 36-37 (citing Koyo Seiko Co. v. United States, 258 F.3d 1340 (Fed.
Cir. 2001); Thai Pineapple Canning Indus. v. United States, 273 F.3d 1077 (Fed. Cir. 2001)).
Consol. Court No. 11-00451 Page 27
Defendant’s arguments are unconvincing. The cases upon which defendant relies do not
establish the principle that Commerce has unfettered discretion to apply per-unit cash deposit
and assessment rates. To the contrary, the Department’s discretion is not so broad as to sustain
an arbitrary decision to apply a per-unit rate to Shanxi DMD, one that was not grounded in any
findings pertinent to Shanxi DMD or any findings supported by evidence in the third review.
Finally, defendant’s argument that Commerce properly followed its “practice” is unavailing.
The “normal” method established by the regulation, 19 C.F.R. § 351.212(b)(1), is to determine
ad valorem assessment rates. Here, Commerce departed from the normal practice and did so in a
way that was arbitrary with respect to Shanxi DMD.
III. CONCLUSION AND ORDER
For the reasons discussed above, the court concludes that: (1) Commerce must reconsider
and redetermine the surrogate values it applied to CCT’s carbonized materials and coal and fines
by-products; (2) Commerce must reconsider its method of determining the margins for Shanxi
DMD, BPAC, and GHC, respectively, and redetermine those margins; and (3) Commerce must
reconsider its assignment of a per-unit cash deposit and assessment rate as applied to
Shanxi DMD.
Upon consideration of all papers and proceedings in this case and upon due deliberation,
it is hereby
ORDERED that the Motion for Leave to File Response in Opposition to Defendant’s
Request for Voluntary Partial Remand, filed September 25, 2012, ECF No. 67, by
Defendant-Intervenor Calgon Carbon (Tianjin) Co., Ltd. (“CCT”) be, and hereby is, granted, and
that the accompanying Memorandum in Opposition to Defendant’s Request for Voluntary
Remand, be, and hereby is, deemed filed on September 25, 2012; it is further
ORDERED that Certain Activated Carbon from the People’s Republic of China: Final
Results and Partial Rescission of Third Antidumping Duty Administrative Review, 76 Fed. Reg.
67,142 (Oct. 31, 2011), be, and hereby is, remanded to the International Trade Administration,
U.S. Department of Commerce (“Commerce” or the “Department”) for reconsideration and
redetermination in accordance with this Opinion and Order; it is further
Consol. Court No. 11-00451 Page 28
ORDERED that Commerce must redetermine, in accordance with this Opinion and
Order, the surrogate values that it applied to CCT’s carbonized materials and coal and fines
by-products; it is further
ORDERED that Commerce must reconsider its method of determining the margins for
Shanxi DMD Corporation (“Shanxi DMD”), Ningxia Guanghua Cherishmet Activated Carbon
Company, Ltd., and Beijing Pacific Activated Carbon Products Company, Ltd., and redetermine
those margins in accordance with this Opinion and Order; it is further
ORDERED that Commerce shall reconsider its decision to assign a per-unit cash deposit
and assessment rate to Shanxi DMD and redetermine that rate in accordance with this Opinion
and Order; and it is further
ORDERED that Commerce shall file its remand redetermination within ninety (90) days
of the date of this Opinion and Order, that each plaintiff and defendant-intervenor shall have
thirty (30) days from the filing of the remand redetermination in which to file with the court
comments on the remand redetermination, and that defendant shall have fifteen (15) days from
the date of the last filing of such comments in which to file with the court any responses to the
comments of other parties.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: August 15, 2013
New York, New York
ERRATA
Please make the following changes to Albemarle Corp. v. United States,
Consol. Ct. No. 11-00451, Slip Op. 13-106.
page 2, line 4: change Prado to Pardo.
page 2, line 4: change Shutz to Schutz.
August 19, 2013.