Albemarle Corp. v. United States

• Citation: 931 F.Supp.2d 1280
• Decision Date: 19 August 2013
• Docket Number: Slip Op. 13–106.,Court No. 11–00451.
• Parties: ALBEMARLE CORP., Plaintiff, and Ningxia Huahui Activated Carbon Co., Ltd., Plaintiff–Intervenor, v. UNITED STATES, Defendant, and Calgon Carbon (Tianjin) Co., Ltd., Calgon Carbon Corp. and Norit Americas Inc., Defendant–Intervenors.
• Court: U.S. Court of International Trade

931 F.Supp.2d 1280

ALBEMARLE CORP., Plaintiff,

and

Ningxia Huahui Activated Carbon Co., Ltd., Plaintiff–Intervenor,

v.UNITED STATES, Defendant,andCalgon Carbon (Tianjin) Co., Ltd., Calgon Carbon Corp. and Norit Americas Inc., Defendant–Intervenors.

Slip Op. 13–106.

Court No. 11–00451.

United States Court of

International Trade.

Aug. 15, 2013.

As Amended Aug. 19, 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.

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. Pardo, Andrew T. Schutz, 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.

OPINION AND ORDER

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 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.”).

I. Background

A. The Parties to the Consolidated Action

For the reasons discussed herein, the court will order a remand for reconsideration of certain aspects of the Final Results.

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.

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.

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. See19 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. 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...