Trust Chem Co. v. United States, Slip Op. 12–25.Court No. 10–00214.

• Decision Date: 29 February 2012
• Docket Number: Slip Op. 12–25.Court No. 10–00214.
• Citation: 34 ITRD 1256,819 F.Supp.2d 1373
• Parties: TRUST CHEM COMPANY LIMITED, Plaintiff, v. UNITED STATES, Defendant,andNation Ford Chemical Company and Sun Chemical Corporation, Defendant–Intervenors.
• Court: U.S. Court of International Trade

34 ITRD 1256

819 F.Supp.2d 1373

TRUST CHEM COMPANY LIMITED, Plaintiff,

v.UNITED STATES, Defendant,andNation Ford Chemical Company and Sun Chemical Corporation, Defendant–Intervenors.

Slip Op. 12–25.Court No. 10–00214.

United States Court of International Trade.

Feb. 29, 2012.

Ronald M. Wisla and Lizbeth R. Levinson, Kutak Rock LLP, of Washington, DC, for Plaintiff.

Patryk J. Drescher and Alexander V. Sverdlov, Trial Attorneys, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With them on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Whitney M. Rolig, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington DC.

Gregory C. Dorris, Pepper Hamilton LLP, of Washington, DC, for Defendant–Intervenors.

OPINION

POGUE, Chief Judge:

This action returns to court following the remand ordered by Trust Chem. Co. v. United States, ––– CIT ––––, 791 F.Supp.2d 1257 (2011) (“ Trust Chem I ”). Trust Chem I required that the Department of Commerce (“Commerce” or “the Department”) reconsider data it had selected to value the nitric acid used to produce Plaintiff's merchandise.

In Commerce's Final Results of Redetermination Pursuant to Court Remand, ECF No. 51(“ Remand Results ”), the Department continues to value nitric acid using the data selected prior to the court's remand order. Plaintiff again challenges Commerce's data selection.

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c)and § 516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2) (2006).¹

As explained below, the court concludes that, on the basis of the record here, a reasonable mind could find that Commerce's choice constitutes the best data available. Commerce's Remand Results are therefore affirmed.

BACKGROUND

Facts necessary to the disposition of the Remand Results are the following: ²

The data at issue comes from the World Trade Atlas (“WTA data”).³ Using this database, in the final results of the fourth administrative review of the antidumping order covering Plaintiff's merchandise imported from the People's Republic of China,⁴ Commerce selected, for nitric acid, a value of $10,474 USD/MT.⁵

Plaintiff sought review of Commerce's choice, arguing that: (A) alternative data it proposed was more specific to, and hence more representative of, the nitric acid used in producing its merchandise, and (B) the WTA data was aberrational or unrepresentative.

In Trust Chem I, the court affirmed Commerce's rejection of Plaintiff's specificity claim. Although the record indicated that “ ‘high’ strength 98 percent nitric acid [was] used in the production of Trust Chem's merchandise [,]” Trust Chem I at 1262, and that “weak” and “high strength” nitric acid had different values, it did not establish the concentration level of the nitric acid for the values proposed by any party.⁶ Consequently, based on the record as it then stood, the court rejected Plaintiff's claim that there was only one reasonable choice for the value to be selected for the nitric acid at issue. Trust Chem I at 1262–63. However, the court remanded the case for Commerce to more adequately demonstrate that the WTA data it did select was a reasonable, not aberrational, choice, when compared to other record data. Trust Chem I at 1268–69 (“Commerce's job is to compare the data on the record and provide an explanation that considers the important aspects of the problem presented.” (citation omitted)).⁷ The court also invited Commerce to re-open the record to obtain appropriate data for comparison.

[T]he record as it currently stands does not contain specific pricing data from the POR that is representative of the nitric acid used by the respondent. Such data could be used for comparison to the WTA data. It will therefore be appropriate, upon remand, for Commerce to re-open the record.Trust Chem I at 1268 n. 28.

On remand, Commerce re-opened the record, but Plaintiff chose not to submit evidence that would demonstrate the relationship between prices and concentration levels for nitric acid. Remand Results at 23 (“Trust Chem was free to place information on the record regarding nitric acid prices and concentration levels, but chose not to.”).⁸

For its part, Commerce placed historical WTA data on the remand record (December 2003–November 2008) for India and other potential surrogate countries, and issued a letter requesting comments from the parties. This historical data showed a wide variation in the value of nitric acid for imports into the different countries.

[W]e examine the AUVs computed for each of those countries for the December 2007 through November 2008 POR, which are as follows: $457 per MT (Philippines); $508 per MT (Indonesia); $548 per MT (Peru); $1,556 per MT (Colombia); $3,894 per MT (Thailand); and $10,474 per MT (India) [the latter value being that used in Commerce's original Final Results ].

Remand Results at 11.

Considering these alternatives, Commerce decided that “the WTA AUV used in the Final Results appears to be consistent with the higher price range one would expect for 98 percent nitric acid.” Department of Commerce Draft Results of Redetermination Pursuant to Court Remand Carbazole Violet Pigment 23 from the People's Republic of China, Remand Admin. Pub. Doc. 9 at 14 (“ Draft Remand Results ”); see also Remand Results at 26 (“For the reasons stated above, the Department has not made any changes to its Draft Remand Results”).

Commerce acknowledged that the record did not contain “specific evidence to demonstrate the actual concentration(s) of nitric acid imported into India and the other potential surrogate countries.” Id. at 13. Commerce reasoned, however, that:

information on the record indicates the safe storage and transport of higher concentrations of nitric acid, including 98 percent nitric acid, requires different, more stringent methods, leading to increased costs.... Petitioners also offer a monthly breakdown of the nitric acid import quantities for India and the other potential surrogate countries during the POR and argue the relatively smaller quantities and unit value of Indian imports are in line with concentrated nitric acid imports packed in Teflon or glass containers....While these monthly data do not specify concentration levels, it is notable that [the other potential surrogate value countries, i.e.,] Peru, the Philippines, and Indonesia, the countries with relatively lower AUVs, imported relatively larger quantities on a monthly basis, whereas India, with its relatively higher AUV, imported comparatively smaller volumes on a monthly basis. Since the record indicates it is more difficult and costly to store and ship higher concentration nitric acid, the data suggest the larger volume of imports into Peru, the Philippines, and Indonesia likely would have consisted of lower concentrations of nitric acid.

Id. at 14 (citations omitted).

To corroborate its analysis, Commerce also:

considered the [U.S.] price list data [submitted by the Petitioners] as a measure of how the concentration level of nitric acid reflects price. [footnote omitted] See the Draft Remand Determination at 13 (stating “the per-MT price of 98 percent nitric acid is $10,738 (based on the 30 gallon price quoted in the price list) and $13,907 (based on the 15 gallon price)” and noting that “we have considered {these prices} as a measure of how the concentration level of nitric acid affects price”)....

Remand Results at 24–25.

In addition, the Department determined that the Indian WTA value for nitric acid was not aberrational as it was stable over the five-year period examined. Remand Results at 14.

As noted above, Plaintiff now challenges Commerce's remand determination.

STANDARD OF REVIEW

Under the court's familiar standard of review, the Department must, in its remand redetermination, comply with the terms of the court's remand order. Jinan Yipin Corp. v. United States, ––– CIT ––––, 637 F.Supp.2d 1183, 1185 (2009). In addition, the court shall “hold unlawful any determination, finding, or conclusion found ... to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i); Koyo Seiko Co. v. United States, 20 F.3d 1160, 1164 (Fed.Cir.1994).

DISCUSSION

Plaintiff presents four objections to Commerce's Remand Results, claiming that A) they are not responsive to the remand order; B) they are not supported by substantial evidence; C) they improperly rely on U.S. nitric acid prices; and D) they produce absurd results. Pl.'s Cmts. to Commerce's Redetermination Pursuant to Remand 1–12, Dec. 19, 2011, ECF No. 54 (“Pl.'s Cmts.”). The court will consider each objection in turn.

A. Compliance with the court's order.

Plaintiff argues that Commerce failed to comply with the remand order, and a second remand is necessary, because the remand results continue to lack usable surrogate value information that is specific to Trust Chem's supplier's nitric acid. Pl.'s Cmts. at 2.

But Plaintiff has only itself to blame for the weaknesses in the record—it was Plaintiff that failed to adequately respond to Commerce's decision to re-open the record. See QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed.Cir.2011) (“Although Commerce has authority to place documents in the administrative record that it deems relevant, ‘the burden of creating an adequate record lies with [interested parties] and not with Commerce.’ ” (alteration in original) (quoting Tianjin Mach. Imp. & Exp. Corp. v. United States, 16 CIT 931, 936, 806 F.Supp. 1008, 1015 (1992))). Commerce is not required to find all conceivable data in order to comply with the law. Makita Corp. v. United States, 21 CIT 734, 753, 974 F.Supp. 770, 787 (1997). Def.'s Resp. to Pl.'s Cmts. Regarding the Remand Redetermination 7, ECF No. 58 (“Def.'s Resp.”)....