Albemarle Corp. & Subsidiaries v. United States
2016 U.S. App. LEXIS 7875
Fed. Cir.2016Background
- Commerce conducted the third administrative review of antidumping duties on certain activated carbon from China; it individually examined Jacobi and CCT and assigned them de minimis margins.
- Three separate-rate respondents (Cherishmet, Shanxi, Huahui) were not individually examined in the third review; Commerce instead continued to apply rates from the prior (second) review to those firms rather than averaging the third-review de minimis margins.
- In the second review Commerce had averaged individual margins to set a $0.28/kg separate rate for Cherishmet and Shanxi; Huahui had an individual $0.44/kg margin in that second review.
- The Court of International Trade (CIT) held Commerce erred in carrying forward prior rates for Cherishmet and Shanxi but upheld the carry-forward for Huahui; after remand Commerce averaged the de minimis margins for Cherishmet and Shanxi (making them de minimis) but retained Huahui’s $0.44/kg.
- On appeal, the Federal Circuit affirmed the CIT as to Cherishmet and Shanxi (Commerce’s carry‑over was arbitrary) but reversed as to Huahui, holding Commerce’s use of Huahui’s prior non‑contemporaneous margin was not reasonable on the record and remanding for Commerce to use the expected method or otherwise justify a different approach.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce permissibly carried forward prior-review separate rates for non-examined exporters when all examined respondents in the current review had de minimis margins | Cherishmet/Shanxi: carry-forward is arbitrary because it relies on non-contemporaneous data and departs from the record of the current review | Commerce/Government: policy excludes zero/de minimis margins from separate-rate calculations; resource limits justify carry-forward | Affirmed for Cherishmet & Shanxi: Commerce must use expected method (average contemporaneous de minimis margins) unless it reasonably shows that method is infeasible or unreflective |
| Whether Commerce permissibly carried forward Huahui’s prior individual margin ($0.44/kg) instead of averaging current de minimis margins | Huahui: carry-forward is unreasonable because administrative reviews require contemporaneous evidence and Commerce refused Huahui’s offer to submit current data | Govt/Commerce: Huahui’s prior higher margin and history of dumping justify use of prior data; lack of current Huahui data supports carry-forward | Reversed for Huahui: Commerce’s reliance on prior non-contemporaneous margin was not reasonable on this record; remanded for further proceedings |
| Applicability of §1673d(c)(5)(B) / SAA expected method in administrative reviews when all examined respondents are de minimis | Plaintiffs: SAA/§1673d(c)(5)(B) expects averaging de minimis margins in such situations; deviations must be justified | Govt: statute and SAA apply to investigations, not necessarily administrative reviews; Commerce has discretion | Court: SAA and statutory methodology apply to reviews; expected method is averaging de minimis margins unless Commerce shows infeasibility or unreflectiveness |
Key Cases Cited
- Changzhou Wujin Fine Chem. Factory Co. v. United States, 701 F.3d 1367 (Fed. Cir.) (Commerce’s separate-rate framework and presumptions in NME proceedings)
- Bestpak (Yangzhou Bestpak Gifts & Crafts Co. v. United States), 716 F.3d 1370 (Fed. Cir.) (deference to Commerce; SAA interpretive value)
- SKF U.S.A., Inc. v. United States, 254 F.3d 1022 (Fed. Cir.) (standard of review and Commerce’s expertise)
- KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir.) (permissible use of prior margins in AFA/noncooperation contexts)
- Union Steel v. United States, 713 F.3d 1101 (Fed. Cir.) (periodic administrative reviews demand contemporaneous accuracy)