Calgon Carbon Corp. v. United States
145 F. Supp. 3d 1312
| Ct. Intl. Trade | 2016Background
- Commerce completed the sixth administrative review (Apr. 1, 2012–Mar. 31, 2013) of the antidumping order on certain activated carbon from the PRC, treating the PRC as a non-market economy and using the Philippines as the primary surrogate country.
- In the Preliminary Results Commerce used POR6-contemporaneous Philippine GTA data to value anthracite coal at $1.19/kg; in the Final Results Commerce instead used the POR5-contemporaneous Philippine GTA value of $0.05/kg (inflated to POR6 using a PPI), producing much lower margins.
- Commerce kept certain companies (including Shanxi DMD) in the PRC‑wide entity and assigned Shanxi DMD the PRC‑wide rate of $2.42/kg in the Final Results; other respondents received much lower, separate rates.
- Carbon Activated Corporation (CAC) challenged (1) Commerce’s presumption of state control and assignment of the PRC‑wide rate to Shanxi DMD, (2) the punitive effect of that rate, and (3) the surrogate value selection for anthracite coal; petitioners (domestic industry) challenged Commerce’s choice of the $0.05/kg coal value as aberrational.
- The government and petitioners argued CAC failed to exhaust administrative remedies; the court found the exhaustion defense waived (responses did not address merits) and held Commerce’s presumption of state control was unsupported on this record.
- The court remanded: (1) Commerce must assign Shanxi DMD the all‑others (separate) rate and (2) Commerce must reconsider its anthracite surrogate value selection consistent with the opinion.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether CAC failed to exhaust administrative remedies before challenging state‑control presumption and PRC‑wide rate | CAC: Not required to challenge a more favorable preliminary rate; exhaustion defense inappropriate where party reasonably relied on Preliminary Results | Govt/Pet’rs: CAC should have raised arguments administratively; exhaustion bars review | Court: Exhaustion defense effectively waived by govt/pet’rs for not addressing merits; CAC excused and merits considered; no exhaustion bar here |
| Whether Commerce’s presumption that all PRC exporters are state‑controlled is supported by substantial evidence | CAC: Presumption is arbitrary here — Commerce’s inconsistent CVD practice and internal memo show market forces; no record support | Govt: Presumption is Commerce policy for NMEs (no substantive response on merits in briefing) | Court: Presumption unsupported by substantial evidence on this record; remand relief granted for Shanxi DMD |
| Whether Shanxi DMD should have been assigned the PRC‑wide rate | CAC: Shanxi DMD entitled to all‑others/separate rate; assignment of PRC‑wide was punitive and not supported | Govt: Rate unchanged from Preliminary Results and supported by Commerce practice (argued exhaustion) | Court: Assign Shanxi DMD the all‑others rate on remand (consistent with treatment in adjacent reviews) |
| Whether Commerce properly selected the $0.05/kg POR5 Philippine surrogate value for anthracite coal | Pet’rs: POR6‑contemporaneous Philippine GTA $1.19/kg was specific; POR5 $0.05/kg is aberrational and not contemporaneous; Commerce should consider POR6 data from other comparable countries | Govt/Intvnrs: Commerce properly rejected POR6 Philippine data as not product‑specific (filtered anthracite) and reasonably relied on primary surrogate preference and inflator | Court: Commerce’s single‑surrogate preference alone insufficient; Commerce improperly relied on non‑contemporaneous POR5 Philippine value without placing supporting underlying data on the record or explaining rejection of contemporaneous POR6 data from other comparable countries; remand to reconsider SV selection |
Key Cases Cited
- Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed. Cir. 2013) (exhaustion doctrine and administrative remedies discussion)
- Sandvik Steel Co. v. United States, 164 F.3d 596 (Fed. Cir. 1998) (administrative exhaustion principle cited)
- Qingdao Sea-Line Trading Co. v. United States, 766 F.3d 1378 (Fed. Cir. 2014) (Commerce discretion in selecting best available information for surrogate values)
- Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333 (Fed. Cir. 2011) (review standard for Commerce’s selection of surrogate data)
- Peer Bearing Co.-Changshan v. United States, 804 F. Supp. 2d 1337 (CIT 2011) (preference for single surrogate country and when it may be overcome)