Calgon Carbon Corp. v. United States

• Decision Date: 20 January 2016
• Docket Number: Slip Op. 16–4,Consol. Court No. 14–00326
• Citation: 145 F.Supp.3d 1312
• Parties: Calgon Carbon Corporation, and Cabot Norit Americas, Inc., Plaintiffs, v. United States, Defendant, Albemarle Corporation, Ningxia Huahui Activated Carbon Co., Ltd., Ningxia Guanghua Cherishmet Activated Carbon Company, Ltd., Carbon Activated Corporation, Jacobi Carbons AB, and Jacobi Carbons, Inc., Defendant–Intervenors.
• Court: U.S. Court of International Trade

145 F.Supp.3d 1312

Calgon Carbon Corporation, and Cabot Norit Americas, Inc., Plaintiffs,

v. United States, Defendant,Albemarle Corporation, Ningxia Huahui Activated Carbon Co., Ltd., Ningxia Guanghua Cherishmet Activated Carbon Company, Ltd., Carbon Activated Corporation, Jacobi Carbons AB, and Jacobi Carbons, Inc., Defendant–Intervenors.

Slip Op. 16–4

Consol. Court No. 14–00326

United States Court of International Trade.

Dated: January 20, 2016

John M. Herrmann II, Kelley Drye & Warren, LLP, of Washington, DC, argued for plaintiffs. With him on the brief were R. Alan Luberda and David A. Hartquist.

Melissa M. Devine, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With her on the brief were Benjamin C. Mizer, Principal Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief was Michael T. Gagain, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.

Jeffrey S. Grimson, Mowry & Grimson, PLLC, of Washington, DC, argued for defendant-intervenors Albemarle Corporation and Ningxia Huahui Activated Carbon Co., Ltd. With him on the brief were Kristin H. Mowry, Jill A. Cramer, Sarah M. Wyss, and Daniel R. Wilson.

Francis J. Sailer, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, DC, argued for defendant-intervenor Ningxia Guanghua Cherishmet Activated Carbon Company, Ltd. With him on brief were Kavita Mohan and Dharmendra N. Choudhary.

Gregory S. Menegaz, deKieffer & Horgan PLLC, of Washington, DC, argued for defendant-intervenor Carbon Activated Corporation. With him on the brief were J. Kevin Horgan and Alexandra H. Salzman.

Claudia D. Hartleben, Curtis, Mallet–Prevost, Colt & Mosle LLP, of Washington, DC, argued for defendant-intervenors Jacobi Carbons AB and Jacobi Carbons, Inc. With her on brief was Daniel L. Porter.

OPINION

Restani, Judge:

This action challenges the Department of Commerce's (“Commerce”) final results of the sixth administrative review of the antidumping (“AD”) duty order on certain activated carbon from the People's Republic of China (“PRC”), covering the period of review (“POR”) of April 1, 2012 through March 31, 2013. Certain Activated Carbon from the People's Republic of China: Final Results of Antidumping Duty Administrative Review; 2012–2013, 79 Fed.Reg. 70,163, 70,163 (Dep't Commerce Nov. 25, 2014) (“Final Results ”). Before the court is a motion for judgment on the agency record pursuant to U.S. Court of International Trade (“USCIT” or “CIT”) Rule 56.2 filed by Calgon Carbon Corporation (“Calgon”) and Cabot Norit Americas, Inc. (“Cabot”) (collectively, “petitioners” or “domestic industry”). Pls.' Mot. for J. on the Agency R., ECF No. 52. Also before the court is a motion for judgment on the agency record pursuant to USCIT Rule 56.2 filed by importer Carbon Activated Corporation (“CAC”). Pl.'s Mot. for J. on the Agency R., ECF No. 53. For the reasons stated below, Commerce's Final Results are remanded.

BACKGROUND

Commerce initiated the sixth administrative review of certain activated carbon from the PRC, which it considers a non-market economy (“NME”). Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed.Reg. 33,052, 33,054 –56 (Dep't Commerce June 3, 2013) (“Initiation Notice ”). In the Initiation Notice, Commerce stated its policy that, when dealing with an NME, Commerce “begins with a rebuttable presumption that all companies within the country are subject to government control ... [and] assign[s] all exporters ... in an NME country this single rate unless an exporter can demonstrate that it is sufficiently independent so as to be entitled to a separate rate.” Id. at 33,053. Commerce also clarified that all companies seeking separate rate status “must complete, as appropriate, either a separate rate application or certification,” and Commerce included Shanxi DMD Corporation (“Shanxi DMD”) as one of the firms required to follow this procedure. Id. at 33,053, 33,056. Commerce limited its review to the two largest exporters/producers by volume of certain activated carbon, Jacobi Carbons AB (“Jacobi”) and Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd. (“Cherishmet”), basing its selection on U.S. Customs and Border Protection (“Customs”) entry data. Decision Memorandum for the Preliminary Results of Antidumping Duty Administrative Review: Certain Activated Carbon from the People's Republic of China at 3–4, A–570–904, (May 16, 2014), available at http://enforcement.trade.gov/frn/summary/prc/2014–11892–1.pdf (last visited Jan. 6, 2016) (“Preliminary I & D Memo ”).

In calculating a dumping margin for products from an NME country, Commerce compares the goods' normal value,¹ derived from factors of production (“FOPs”) as valued in a surrogate market economy (“ME”) country, to the goods' export price.² 19 U.S.C. § 1677b(c)(1)(B) (2012). Commerce must use the “best available information” in selecting surrogate data for which to value FOPs. Id. The surrogate data must “to the extent possible” be from an ME country that is “at a level of economic development comparable to that of the nonmarket economy country” and is a “significant producer[ ] of comparable merchandise.” 19 U.S.C. § 1677b(c)(4)(A)–(B).

On May 22, 2014, Commerce published its preliminary results. Certain Activated Carbon from the People's Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2012–2013, 79 Fed.Reg. 29,419, 29,419 (Dep't Commerce May 22, 2014) (“Preliminary Results ”). In calculating normal value, Commerce selected the Philippines as the primary surrogate country.³ Preliminary I & D Memo at 17. Commerce relied on Global Trade Atlas (“GTA”) data to value certain FOPs, disregarding prices from NME countries, prices that may have been dumped or subsidized, and imports originating from unspecified countries. Id. at 24. Based on this methodology, Commerce calculated a surrogate value (“SV”) of $1.19 per kilogram for anthracite coal (the main input), relying on contemporaneous with the present sixth POR (“POR6–contemporaneous”) GTA data from the Philippines under HTS number 2701.11 (“Anthracite Coal, Whether or Not Pulverized, But Not Agglomerated”). Surrogate Values for the Preliminary Results at 4, PD 266–67 (May 16, 2014) (“Preliminary SV Memo”); see also Pet'rs' Surrogate Values for the Preliminary Results at Ex. 2A, PD 161–65 (Nov. 20, 2013) (“Pet'rs SV Cmts.”).

In the Final Results, Commerce departed from its decision in the Preliminary Results to value anthracite coal at $1.19 per kilogram based on POR6–contemporaneous Philippine GTA data. Certain Activated Carbon from the People's Republic of China: Issues and Decision Memorandum for the Final Results of the Sixth Antidumping Duty Administrative Review at 37–38, A–570–904, (Nov. 18, 2014), available at http://enforcement.trade.gov/frn/summary/prc/2014–27926–1.pdf (last visited Jan. 6, 2016) (“I & D Memo ”). Instead, Commerce relied on the SV derived from Philippine GTA data used in the fifth administrative review, which is data that was contemporaneous with the fifth POR (“POR5–contemporaneous”), rather than on an SV derived from data contemporaneous with the present POR. Id. Commerce noted that “no parties contested that SV in the previous review.” Id. The new SV relied upon in the Final Results was $0.05 per kilogram, Surrogate Values for the Final Results at Attach. 1, PD 314 (Nov. 18, 2014), which was then “inflated to the current POR using Philippine producer price index information[,]” I & D Memo at 38. In so doing, Commerce rejected petitioners' arguments that the POR6–contemporaneous Philippine GTA data should be used or alternatively “an average of the anthracite coal SVs from Indonesia, Thailand, and Colombia,” determining that the POR6–contemporaneous Philippine GTA data was not specific to the type of anthracite coal used by the mandatory respondents. Id. at 35–37. Commerce relied on publically available data from two trade information services, Port Import/Export Reporting Service (“PIERS”) and ZEPOL Corporation (“ZEPOL”), to find that 94 percent of the POR6–contemporaneous Philippine GTA data was filtration anthracite (called “Leopold Underdrain” and produced by Xylem, Inc. (“Xylem”)), which Commerce concluded is different from the bulk anthracite coal consumed by the respondents. Id. at 31–32, 35. Commerce also rejected arguments by certain respondents that U.S. Energy Information Association (“EIA”) data, which provides United States domestic prices, should be used to value anthracite coal, because Commerce's preference is to use surrogate data from countries at a level of economic development comparable to that of the NME country. Id. at 36.

As a result, on November 25, 2014, Commerce published its Final Results, assigning AD duty rates of $0.04 per kilogram to Jacobi, $0.04 per kilogram to Cherishmet, $0.04 per kilogram to exporters separate from the PRC–wide entity (the “all-others rate”), and $2.42 per kilogram to the PRC–wide entity. Final Results, 79 Fed.Reg. at 70,165. Those rates represented a change from the Preliminary Results, in which Commerce assigned AD duty rates of $3.77 per kilogram to Jacobi, $2.05 per kilogram to Cherishmet, $3.13 per kilogram as the all-others rate, and $2.42 per kilogram to the PRC–wide entity.⁴ Preliminary Results, 79 Fed.Reg. at 29,420. With regard to the separate rate status of certain respondents, Commerce stated in the Final Results that it “ha[d] received no comments or argument since the issuance of the Preliminary Results that provides a basis for reconsideration.” Id. at 70,164. As a result, it continued to find that “[t]he PRC–wide entity includes Shanxi DMD Corporation and Tangshan Solid Carbon Co., Ltd.” Id. at 70,164 n.26 ; see also Preliminary Results, 79 Fed.Reg....