Calgon Carbon Corp. v. United States

CALGON CARBON CORPORATION, AND NORIT AMERICAS INC., Plaintiffs, andHEBEI FOREIGN TRADE AND ADVERTISING CORPORATION, Consolidated Plaintiff,

v. UNITED STATES, Defendant, andJACOBI CARBONS AB, JACOBI CARBONS, INC., CHERISHMET INC., BEIJING PACIFICACTIVATED CARBON PRODUCTS COMPANY, LTD., NINGXIA GUANGHUACHERISHMET ACTIVATED CARBON COMPANY, LTD., DATONG YUNGUANGCHEMICALS PLANT, AND DATONG MUNICIPAL YUNGUANG ACTIVATEDCARBON CO., Intervenor Defendants.

Slip Op. 11-21 Consol. Court No. 09-00518

UNITED STATES COURT OF INTERNATIONAL TRADE

Dated: February 17, 2011

Before: Jane A. Restani, Judge

OPINION AND ORDER

[In antidumping duty matter plaintiffs' motion for judgment on the agency record denied. Consolidated plaintiff's motion for judgment on the agency record granted. Intervenor defendants' motion for judgment on the agency record granted in part and denied in part.

Commerce's request for voluntary remand granted.]

Kelley Drye & Warren LLP (R. Alan Luberda, David A. Hartquist, and John M. Herrmann, II) for the plaintiffs, Calgon Carbon Corporation and Norit Americas, Inc.

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

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Delisa M. Sanchez and Antonia R. Soares); Thomas M. Beline, Office of Chief Counsel for Import Administrative, U.S. Department of Commerce, of counsel, for the defendant.

Winston & Strawn, LLP (Daniel L. Porter, Ross E. Bidlingmaier, and William H. Barringer) for intervenor defendants, Jacobi Carbons AB and Jacobi Carbons, Inc.

Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP (Francis J. Sailer, Mark E. Pardo, Nikolas E. Takacs, and Andrew T. Schutz) for intervenor defendants, Cherishmet Inc., Beijing Pacific Activated Carbon Products Company, Ltd., Ningxia Guanghua Cherishmet Activated Carbon Company, Ltd., Datong Yunguang Chemicals Plant, and Datong Municipal Yunguang Activated Carbon Co.

Restani, Judge: This action challenges the Department of Commerce's ("Commerce") final determination rendered in an antidumping ("AD") duty review of certain activated carbon from the People's Republic of China ("PRC"). 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"); 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"). Plaintiffs Calgon Carbon Corporation and Norit Americas Inc. (collectively "Calgon"), consolidated plaintiff Hebei Foreign Trade and Advertising Corporation ("Hebei Foreign"), and intervenor defendants Cherishmet Inc., Beijing Pacific Activated Carbon Products, Co., Ltd., Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd., Datong Yunguang Chemicals Plant, and Datong Municipal Yunguang Activated Carbon Co. ("Cherishmet") sought judgment on the agency record pursuant to USCIT R. 56.2. For the reasons stated below, the court sustains Commerce's final determination in part and denies it in part and, accordingly, Hebei Foreign's motion for judgment on the agency record is granted, Cherishmet's motion for judgment on the agency record is granted in part and denied in part, and Calgon's motion for judgment on the agency record is denied. Commerce's request for voluntary remand is granted.

BACKGROUND

In April 2007, Commerce published an AD duty order on certain activated carbon¹ from the PRC. Notice of Antidumping Duty Order: Certain Activated Carbon From the People's Republic of China, 72 Fed. Reg. 20, 988 (Dep't Commerce Apr. 27, 2007). In April 2008, Calgon requested an administrative review of ninety Chinese exporters and producers of activated carbon. App. to Br. in Supp. of Pl.'s Rule 56.2 Mot. for J. upon the Agency R. Filed on Behalf of Calgon Carbon Corp. and Norit Am.'s Inc. ("Pl.'s App.") Tab 12. In June 2008, Commerce initiated the first administrative review, for the period from October 11, 2006 through March 31, 2008. Initiation of Antidumping and Countervailing Duty Admin. Rev. and Requests for Revocation in Part, 73 Fed. Reg. 31, 813 (Dep't Commerce June 4, 2008) ("Initiation").

Commerce selected Jacobi Carbons AB ("Jacobi"), Calgon Carbon (Tianjin) Co. Ltd.² ("CCT"), and Jilin Bright Future Chemicals Co., Ltd. ("Jilin") as mandatory respondents. App. to Def.'s Resp. in Opp. to Pl.'s Mot. for J. upon the Agency R. ("Def.'s App.") Tab 1. Commerce selected Cherishmet as a mandatory respondent because Jilin refused to participate and Cherishmet had requested treatment as a voluntary respondent. Def.'s App. Tab 3. In November 2009, Commerce published the Final Results and Amended Final Results, assigning AD duty margins of 14.51% to CCT, 18.19% to Jacobi, and 16.84% for Cherishmet. Amended Final Results, 74 Fed. Reg. at 66, 953. Commerce also revoked Hebei Foreign's separate rate and assigned Hebei Foreign the PRC-wide rate of 228.11%. Issues and Decision Memorandum for the Final Results of the Antidumping Duty Admin. Rev. of Certain Activated Carbon from the People's Republic of China, A-570-904, POR 10/1106 3/31/08, at 78 81 (Nov. 3 2009) ("Issues and Decision Memorandum"), available athttp: //ia.ita.doc.gov/frn/summary/prc/E9-27083-1.pdf (last visited Feb. 17, 2011). In the Final Results, Commerce made determinations relating to separate rate certification, assignment of an adverse facts available rate, combination rates and zeroing as well as with regard to valuation of steam/energy coal, hydrochloric acid, carbonized material, bituminous coal, coal tar, ink, and labor. In May 2010, Calgon, Hebei Foreign, and Cherishmet filed motions for judgment on the agency record under USCIT R. 56.2 as to these determinations.

JURISDICTION & STANDARD OF REVIEW

The court has jurisdiction pursuant to 28 U.S.C. § 1581(c). The court will uphold Commerce's final determinations in AD duty 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. Hebei Foreign's Separate Rate Certification and Adverse Facts Available Rate

Hebei Foreign alleges that Commerce erred in revoking Hebei Foreign's separate rate status when Commerce determined Hebei Foreign's documents were improperly certified by an individual who was later determined not to be an employee of Hebei Foreign. Mem. of P. & A. in Supp. of Rule 56.2 Mot. for J. on the Agency R. by Pl. Hebei Foreign Trade and Advertising Corp. ("Consol. Pl.'s Br.") 27.

In the Preliminary Results, Commerce granted Hebei Foreign's separate rate status based on documents certified by Mr. Wang Kezheng. Certain Activated Carbon From the People's Republic of China: Notice of Preliminary Results of the Antidumping Duty Administrative Review and Extension of Time Limits for the Final Results, 74 Fed. Reg. 21, 317, 21, 323 24 (Dep't Commerce May 7, 2009) ("Preliminary Results"); App. to Mem. of P. & A. in Supp. of Rule 56.2 Mot. for J. on the Agency R. by Pl. Hebei Foreign Trade and Advertising Corp. ("Consol. Pl.'s App.") Tab 10. Commerce then placed a series of documents on the record from Hebei Foreign's request for Changed Circumstances Review ("CCR"), a separate administrative proceeding. Consol. Pl.'s App. Tab 11. In rescinding the CCR, Commerce noted that:

Hebei Foreign's submissions and questionnaire response were certified by WangKezheng as the manager of the No. 1 Business Department of Hebei Foreign. However, Hebei Foreign's supplemental response clearly states that Wang Kezheng is not employed by Hebei Foreign. The Department is mindful of the concerns raised by Petitioners with regard to Hebei Foreign's certification. Accordingly, the Department reminds parties of their obligation pursuant to 19 CFR 351.303(g) to certify factual information submitted to the Department.

Id. at Tab 11, at Attachment 2 at 5 (footnotes omitted). The relevant portions of Hebei Foreign's response to the questionnaire state that "Mr. Wang Kezheng... is the manager of No. 1 Business Department of Hebei Foreign," "Mr. Wang Kezheng and Jiang Hua are not working at Hebei Foreign," "At the time of the submission of the CCR request, Mr. Wang Kezheng was employed by Hebei Foreign," "Mr. Wang Kezheng joined Hebei Foreign as a sales manager in 2002... [and now] he serves as the manager of No. 1 Business Department," and "Mr. Wang Kezheng does not hold any positions at other companies while he is employed at Hebei Foreign."³ Id. at Tab 11, at Attachment 6 at 6 7. In the Final Results, Commerce found that:

[The] Department placed information on the record which shows evidence that Hebei Foreign's separate rate status was based on incorrect information, resulting in the revocation of Hebei Foreign's separate rate. Hebei Foreign has not submitted any information to contradict the evidence on the record. Thus, we have assigned Hebei Foreign the PRC-wide entity rate of 228.11 percent.

Final Results, 74 Fed. Reg. at 57, 998. Hebei Foreign, however, did not have the opportunity to place contradictory information on the record because the denial of separate rate status occurred for the first time in the Final Results.⁴ In response to the Final Results, Hebei Foreign requested a correction of ministerial errors on the basis that the relevant portion of their response to the supplemental questionnaire:

... was not written by Hebei Foreign as part of its response and was not intended for submission to the Department. The note was written by counsel's Chinese consultant noting his particular concern that certain emails written by Wang Kezheng to the U.S.

...