619 F. App'x 992
Fed. Cir.2015Background
- Commerce conducted the fourth administrative review (Apr. 1, 2010–Mar. 31, 2011) of an antidumping duty order on certain activated carbon from the PRC; Commerce must value PRC inputs using “best available information” from comparable market economies.
- Commerce initially used Thai data at the preliminary stage but in the Final Results selected the Philippines as the primary surrogate country, changing surrogate values for key inputs.
- Two main contested surrogate-value determinations on appeal: carbonized material (inputs include coal-based and coconut-shell charcoal) and truck freight (route-based Philippine data vs. older Thai data).
- Commerce chose Philippine GTA import data (HTS 4402) for carbonized material over Cocommunity coconut-shell charcoal prices, and Philippine route freight data for truck freight.
- The Court of International Trade sustained Commerce’s Final Results; appellants (Jacobi, Cherishmet, CAC) appealed. The Federal Circuit affirms by finding Commerce’s choices supported by substantial evidence and consistent with law; Judge Bryson dissents as to the carbonized-material surrogate choice.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Surrogate value for carbonized material — specificity | Cocommunity coconut-shell prices are more input-specific (coconut-shell ≈ coal-based charcoal); Philippine HTS 4402 is overbroad (includes wood charcoal) | Philippine GTA import data is product-specific enough, publicly available, contemporaneous, and reflects a broad market average; petitioners failed to build record proving absence of coconut-shell imports | Commerce’s selection of Philippine import data supported by substantial evidence; plaintiffs’ unpreserved or unsupported record assertions insufficient |
| Alleged aberrational nature of Philippine import data | Philippine GTA price (~$1,203.90/MT) is dramatically higher than prior surrogate values; Cocommunity ($255/MT) aligns better with earlier reviews | Different surrogate countries (India earlier) and lack of record challenge during administrative review; plaintiffs didn’t present evidence to Commerce | Court will not consider new arguments or evidence raised first on appeal; absence of administrative record support means Commerce’s choice stands |
| Whether Cocommunity data is regional/tax-inclusive (representativeness) | Cocommunity is national and net of taxes; thus preferable | Record shows Cocommunity entries labeled “Visayas” (regional) and no evidence that Visayas prices reflect national averages or tax exclusivity | Substantial evidence supports Commerce’s finding that Cocommunity data was regional and lacked proof of tax/duty exclusivity; even if critique on taxes erred, other substantial evidence supports selection |
| Surrogate value for truck freight | Philippine single-route data is unrepresentative, nonspecific (loose vs. containerized cargo), and aberrational compared to prior India/Thai-based figures | Philippine freight data is contemporaneous, reported by multiple trucking companies, and aligns with Commerce’s practice to value factors in a single surrogate country; Thai data older and less contemporaneous | Commerce reasonably chose contemporaneous Philippine freight data over older Thai data; choice supported by substantial evidence |
Key Cases Cited
- Qingdao Sea-Line Trading Co. v. United States, 766 F.3d 1378 (Fed. Cir.) (agency selection of surrogate information entitled to deference; review limited to administrative record)
- Consol. Edison Co. of N.Y. v. NLRB, 305 U.S. 197 (U.S. 1938) (definition of substantial evidence)
- Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369 (Fed. Cir.) (standard of review for CIT decisions)
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir.) (burden on interested parties to create administrative record)
- Rhodia Inc. v. United States, 185 F. Supp. 2d 1343 (Ct. Int’l Trade) (Commerce’s preference for domestic over import prices “all else equal”)
- Jacobi Carbons AB v. United States, 992 F. Supp. 2d 1360 (Ct. Int’l Trade) (CIT opinion sustaining Commerce’s fourth-review Final Results)