Hebei Foreign Trade & Advertising Corp. v. United States, Slip Op. 11–134.Court No. 09–00524.

• Decision Date: 24 October 2011
• Docket Number: Slip Op. 11–134.Court No. 09–00524.
• Citation: 33 ITRD 2222,807 F.Supp.2d 1317
• Parties: HEBEI FOREIGN TRADE AND ADVERTISING CORPORATION, Plaintiff,Cherishmet Incorporated, Consolidated Plaintiff, v. UNITED STATES, and United States Department of Commerce, Defendants,Calgon Carbon Corporation, and Norit Americas Inc., Intervenor Defendants.
• Court: U.S. Court of International Trade

33 ITRD 2222

807 F.Supp.2d 1317

HEBEI FOREIGN TRADE AND ADVERTISING CORPORATION, Plaintiff,Cherishmet Incorporated, Consolidated Plaintiff,

v.UNITED STATES, and United States Department of Commerce, Defendants,Calgon Carbon Corporation, and Norit Americas Inc., Intervenor Defendants.

Slip Op. 11–134.Court No. 09–00524.

United States Court of International Trade.

Oct. 24, 2011.

Mowry & Grimson, PLLC (Kristin H. Mowry, Jill A. Cramer, Jeffrey S. Grimson, Sarah M. Wyss, and Susan L. Brooks), for the plaintiff, Hebei Foreign Trade and Advertising Company.

Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP (Francis J. Sailer), Washington, DC, for the consolidated plaintiff, Cherishmet Incorporated.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Washington, DC, Director, Claudia Burke, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Delisa M. Sanchez); Thomas M. Beline, Office of Chief Counsel for Import Administration, U.S. Department of Commerce, of counsel, for the defendant.Kelley Drye & Warren LLP (R. Alan Luberda, David A. Hartquist, and John M. Herrmann, II), Washington, DC, for the intervenor defendants, Calgon Carbon Corporation and Norit Americas, Inc.

OPINION

RESTANI, Judge:

This matter comes before the court following its decision in Calgon Carbon Corp. v. United States, Slip Op. 11–21, 2011 WL 637605 (CIT Feb. 17, 2011),¹ in which the court remanded First Administrative Review of Certain Activated Carbon from the People's Republic of China: Final Results of Antidumping Duty Administrative Review, 74 Fed.Reg. 57,995 (Dep't Commerce Nov. 10, 2009) (“ Final Results ”) and Certain Activated Carbon from the People's Republic of China: Amended Final Results of Antidumping Duty Administrative Review, 74 Fed.Reg. 66,952 (Dep't Commerce Dec. 17, 2009) (“ Amended Final Results ”), instructing the United States Department of Commerce (“Commerce”) to further explain its interpretation of the certification requirements of 19 C.F.R. § 351.303(g), to reexamine its determination that Mr. Wang Kezheng (“Mr. Wang”) was not in a position to certify separate rate status documents for Hebei Foreign Trade and Advertising Corporation (“Hebei Foreign”), and, if necessary under Commerce's interpretation of its regulations, to permit Hebei Foreign to attempt to find someone who fulfills Commerce's regulatory requirements.² Calgon Carbon, 2011 WL 637605, at *3. For the reasons stated below, the court sustains the Final Results of Redetermination Pursuant to Court Remand (Dep't Commerce July 26, 2011) (Consol. Court No. 09–00524) (“ Remand Results ”), which, inter alia, set a separate rate for Hebei Foreign at 16.35%.

BACKGROUND

The facts of this case have been well-documented in the court's previous opinion. See Calgon Carbon, 2011 WL 637605, at *1–3. The court presumes familiarity with that decision, but briefly summarizes the facts relevant to this opinion.

In June 2008, Commerce initiated the first administrative review of its antidumping (“AD”) order on certain activated carbon from the People's Republic of China (“PRC”). Initiation of Antidumping and Countervailing Duty Administrative Reviews and Requests for Revocation in Part, 73 Fed.Reg. 31,813, 31,813 (Dep't Commerce June 4, 2008). Commerce concluded that Hebei Foreign's separate rate status documents were inconclusive because Commerce determined that Hebei Foreign either certified the documents using an individual who was not its employee or filed an inaccurate and unreliable certification. Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review of Certain Activated Carbon from the People's Republic of China, A–570–904, POR 10/11/06–3/31/08, at 80–81 (Nov. 3, 2009), available at http:// ia. ita. doc. gov/ frn/ summary/ prc/ E 9– 27083– 1. pdf (last visited Oct. 24, 2011). As a result, Commerce revoked Hebei Foreign's separate rate status and assigned Hebei Foreign the PRC-wide rate of 228.11%. Id. In December 2009, Hebei Foreign filed a complaint challenging the Final Results and Amended Final Results before the court. Calgon Carbon, 2011 WL 637605, at *1.

The court remanded the matter to Commerce, holding that Commerce did not provide substantial support for its determination that Mr. Wang was not a “formal employee” of Hebei Foreign because “[r]eliance on a single unclear statement by a party outside the respondent corporation to the exclusion of half a dozen others to the contrary does not rise to the level of substantial support.” Id. at *3. The court instructed Commerce to “explain its regulation in the context of Chinese corporations and determine whether or not Mr. Wang was in a position to certify the facts at issue.” Id. In addition, “[i]f Mr. Wang was in a position to know the facts but was not an employee in the sense required by Commerce, then Commerce must re-open the record to allow Hebei Foreign to attempt to find someone who fulfills the regulatory requirement.” Id.

On remand, Commerce clarified that in 19 C.F.R. § 351.303(g)(1) requires certification by a current employee of the respondent and that the “employer-employee” relationship is distinguished from independent contractor or agent of the party relationships. Remand Results at 5. Hebei Foreign admitted that Mr. Wang was not formally on Hebei Foreign's payroll. Id. at 6. As a result, Commerce determined that it was “unclear as to whether Mr. Wang was an employee of Hebei Foreign or acted as an independent contractor or a selling agent for Hebei Foreign....” Id. Commerce permitted Hebei Foreign to submit additional certifications by someone “currently employed by” Hebei Foreign. Id. at 7. Hebei Foreign provided new company certifications, signed by Mr. Liu Guozhang—the Chief of Hebei Foreign—and Ms. Liu Furong. See Admin. R. 2, at Ex. 2–5. The certifications stated that Mr. Liu Guozhang and Ms. Liu Furong “prepared or supervised the preparation” of the responses in question. Id. Hebei Foreign provided tax return and payroll information for Mr. Liu Guozhang and payroll information for Ms. Liu Furong, which Commerce determined satisfied the definition of “employed by.” Admin. R. 2, at Ex. 6–8; ³ Remand Results at 7. As a result, Commerce granted Hebei Foreign a separate rate. Remand Results at 7. Commerce calculated Hebei Foreign's rate to be 16.35% by averaging the rates of Calgon Carbon (Tianjin) Co., Ltd. and Jacobi Carbons AB. Id.

Hebei Foreign and Calgon commented on the Remand Results. Cmts. of Hebei Foreign Trade and Advertising Corp. On Dep't of Commerce July 26, 2011 Final Results of Redetermination Pursuant to Court Remand (“Hebei Foreign's Cmts.”) 1; Def.-Intervenors' Cmts. on Commerce Dep't Redetermination (“Calgon's Cmts.”) 1–10. The government responded.⁴

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will uphold Commerce's final results, as well as its remand results, in AD reviews unless they are “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).

DISCUSSION

I. Separate Rate Status

Calgon claims that Commerce's finding that Hebei Foreign is entitled to a separate rate status is contrary to law and not supported by substantial evidence. Calgon's Cmts. 2. Specifically, Calgon argues that 1) Commerce's conclusion that Mr. Liu Guozhang satisfies the requirements of 19 C.F.R. § 351.303(g) is inconsistent with Commerce's explanation of its regulation, Calgon's Cmts. 2, and 2) Ms. Liu Furong does not meet the requirements of 19 C.F.R. § 351.303(g), Calgon's Cmts. 2. Calgon's arguments fail for the following reasons.

All factual information submitted in an antidumping proceeding must be accompanied by a certification that the information is accurate. See 19 C.F.R. § 351.303(g). This necessarily includes factual information supporting a claim of entitlement to status separate from the government in a non-market economy case. The certification procedure requires that the person officially responsible for the “presentation of the factual information,” state who he is “currently employed by.” 19 C.F.R. § 351.303(g)(1). In the remand results, Commerce explained the regulation as follows:

Whenever a party ( e.g., a company or a government) submits factual information in an AD/CVD proceeding, the law requires that the person(s) officially responsible for presentation of the factual information provide a certification with the submission. The certifier(s) of that factual submission must be “currently employed by” the party submitting the factual information. For purposes of this certification requirement, the Department defines “employed by” as performing work under an employer-employee relationship. An “employee” is a person in the service of another where the employer has the power or right to control and direct the employee with respect to what work will be done and the details of how it will be done, and the employee receives payment for services from the employer. In this regard, an “employee” of the party submitting factual information is to be distinguished from an independent contractor(s) or agent(s) of the party. The certifier(s) must be employed by the party submitting the factual information at the time the submission is made to the Department and the certifier(s) must have prepared or supervised the preparation of the submission. The Department may require proof of employment from the employer.

Remand Results at 5. In the instant case, Commerce determined that Hebei Foreign's documentary evidence demonstrated that Mr. Liu Guozhang and Ms. Liu Furong both satisfied the regulation because they were “currently employed by” Hebei Foreign and they “prepared or supervised the preparation,” id. at 6, of the separate rate status certifications and responses, id. at 6–7.

First, Calgon claims that Mr. Liu Guozhang did not meet the requirement of the...