Albemarle Corp. v. United States

27 F.Supp.3d 1336

ALBEMARLE CORP., PlaintiffandNingxia Huahui Activated Carbon Co., Ltd., Plaintiff–Intervenor

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

Slip Op. 14–135.

Court No. 11–00451.

United States Court of International Trade.

Nov. 24, 2014.

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, and Sarah M. Wyss.

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, 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 Trade Enforcement & Compliance, 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.

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

STANCEU, Chief Judge:

This consolidated action arose from judicial challenges to a final determination that the International Trade Administration, U.S. Department of Commerce (“Commerce” or the “Department”) issued in an antidumping duty proceeding.¹ The contested determination (the “Final Results”) concluded the third administrative review of an antidumping duty order (the “Order”) on certain activated carbon (the “subject merchandise”) 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 (Int'l Trade Admin. Oct. 31, 2011) (“Final Results ”). The third administrative review applies to entries of subject merchandise that were made between April 1, 2009 and March 31, 2010 (the “period of review” or “POR”). Id.

Before the court is the Department's decision (“Remand Redetermination”) issued pursuant to the court's order in Albemarle Corp. v. United States, 37 CIT ––––, ––––, 931 F.Supp.2d 1280, 1282–83 (2013) (“Albemarle ”).² Final Results of Redetermination Pursuant to Ct. Remand (Jan. 10, 2014), ECF No. 96 (“Remand Redetermination ”). For the reasons discussed in this Opinion, the court is affirming the Remand Redetermination.

I. Background

The court's opinion in Albemarle provides detailed background information on this case that is supplemented herein. Albemarle, 37 CIT at ––––, 931 F.Supp.2d at 1283–88.

A. The Parties to the Consolidated Action

This consolidated case arose from challenges to the Final Results by three plaintiffs: (1) Albemarle Corporation (“Albemarle”), a U.S. importer of subject merchandise produced and exported from China by plaintiff-intervenor Ningxia Huahui Activated Carbon Co., Ltd. (“Huahui”); (2) Shanxi DMD Corporation (“Shanxi DMD”), a Chinese exporter of subject merchandise; and (3) Cherishmet, Inc., a U.S. importer affiliated with Chinese exporters Ningxia Guanghua Cherishmet Activated Carbon Products Company, Ltd. (“GHC”) and Beijing Pacific Activated Carbon Products Company, Ltd. (“BPAC”). Albemarle, 37 CIT at ––––, 931 F.Supp.2d at 1283–84.

Defendant-intervenor Calgon Carbon (Tianjin) Co., Ltd. (“CCT”) is a Chinese producer and exporter of subject merchandise. CCT is a subsidiary of defendant-intervenor Calgon Carbon Corporation and Norit Americas, Inc. (collectively “CCC”), a domestic producer of activated carbon and the petitioner in the antidumping investigation that resulted in the issuance of the Order. Albemarle, 37 CIT at ––––, 931 F.Supp.2d at 1284.

B. Procedural History

In the third administrative review, Commerce examined individually, and assigned individual calculated margins to, only two producer/exporters (“mandatory respondents”): CCT, which is a party to this case, and Jacobi Carbons AB (“Jacobi”), which is not. Certain Activated Carbon from the People's Republic of China: Prelim. Results of the Third Antidumping Duty Admin. Review, & Prelim. Rescission in Part, 76 Fed. Reg. 23,978, 23,979 (Int'l Trade Admin. Apr. 29, 2011) (“Prelim. Results ”). In the preliminary phase of the third administrative review, Commerce determined a preliminary margin of zero for Jacobi and a $0.05/kg. preliminary margin for CCT. Id., 76 Fed. Reg. at 23,990. Based on CCT's margin, Commerce determined preliminary margins of $0.05/kg. for respondents Shanxi DMD, BPAC, GHC, and Huahui, each of which Commerce had chosen not to examine but which qualified for a “separate rate,” i.e., a rate other than the rate assigned to the government of China and government-affiliated entities.³ Id.

In the Final Results, Commerce assigned to each of the two examined respondents a margin of “$0.00/kg.,” which Commerce described as “de minimis. ” Final Results, 76 Fed. Reg. at 67,145. Commerce determined a final margin of $0.44/kg. for Huahui based on the individual margin Huahui had been assigned as a mandatory respondent in the final results of the previous (second) administrative review of the Order, and determined a margin of $0.28/kg. for unexamined respondents Shanxi DMD, BPAC and GHC, which was also based on the final results of the second administrative review. Id.

In Albemarle, the court granted defendant's motion for a voluntary remand that would allow Commerce to reconsider two surrogate values (for carbonized material and for coal and fines by-products) affecting the calculation of CCT's margin. Albemarle, 37 CIT at ––––, 931 F.Supp.2d at 1297. Also, the court in Albemarle ordered Commerce to reconsider the method used to determine the margins for unexamined respondents Shanxi DMD, BPAC and GHC and redetermine those margins in accordance with the court's opinion and order. Id. Third, the court ordered Commerce to reconsider the decision Commerce made in the Final Results to assign a per-unit, as opposed to an ad valorem, margin to Shanxi DMD and redetermine this margin in accordance with the opinion and order. Id. In Albemarle, the court reserved any decision on whether the $0.44/kg. margin assigned to Huahui was permissible but did not preclude Commerce from reconsidering that margin on remand. Id. at ––––, 931 F.Supp.2d at 1293.

Commerce filed the Remand Redetermination with the court on January 10, 2014. Remand Redetermination 1. Pursuant to the court's order in Albemarle, the parties have submitted briefs addressing various issues raised by the Remand Redetermination. Pl. and Pl.-intervenor's Comments on Final Results of Redetermination Pursuant to Ct. Remand (Feb. 12, 2014), ECF No. 100 (“Albemarle's Comments”); Comments of Def.-intervenor Calgon Carbon (Tianjin) Co., Ltd. Regarding Final Results of Redetermination Pursuant to Ct. Remand (Feb. 12, 2014), ECF No. 102 (“CCT's Comments”); Def.-intervenors' Comments on Remand Redetermination (Feb. 12, 2014), ECF No. 103 (“CCC's Comments”); Def.'s Reply to the Parties' Remand Comments, ECF No. 109 (“Def.'s Reply”).

II. Discussion

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.⁴ The court will sustain the Department's redetermination if it complies with the court's remand order, is supported by substantial evidence on the record and is otherwise in accordance with the law. See 19 U.S.C. § 1516a(b)(1)(B)(i).

In the Remand Redetermination, Commerce reassessed its surrogate value determinations for CCT's carbonized material and for CCT's coal and fines by-products. Remand Redetermination 1–2. Accordingly, Commerce recalculated CCT's weighted average dumping margin to reflect the redetermined surrogate values, resulting in a margin of $0.004/kg. for CCT, which remained de minimis. Remand Redetermination 10, 25. Commerce assigned redetermined zero margins to unexamined respondents Shanxi DMD, BPAC and GHC, which were based on the zero/de minimis margins for mandatory respondents Jacobi and CCT. Remand Redetermination 13, 25. Commerce left unchanged the $0.44/kg. margin it assigned to Huahui in the Final Results.

No party contests the Department's redetermined surrogate values, which the court affirms for the reasons discussed in subparts II.C and II.D of this Opinion. The margins to be assigned to GHC, BPAC, and Shanxi DMD, and the margin to be assigned to Huahui, are the only issues that remain contested in this litigation. In subpart II.A of this Opinion, the court affirms the Department's assignment of zero margins to GHC, BPAC, and Shanxi DMD. In subpart II.B, the court affirms the Department's assignment of the $0.44/kg. margin to Huahui. Because Commerce determined Shanxi DMD's margin to be zero, and because the court affirms that margin in this Opinion, Shanxi DMD's challenge to a per-unit margin is now moot.

A. The Court Affirms the Redetermined Margins for GHC, BPAC, and Shanxi DMD

The ...