JACOBI CARBONS AB, Jacobi Carbons, Inc., Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd., Cherishmet Inc., Beijing Pacific Activated Carbon Products Co., Ltd., Datong Municipal Yunguang Activated Carbon Co., Ltd., Shanxi Industry Technology Trading Co., Ltd., Carbon Activated Corp., Car Go Worldwide, Inc., and Tangshan Solid Carbon Co., Ltd., Plaintiffs, v. UNITED STATES, Defendant, and Calgon Carbon Corp. and Norit Americas, Inc., Defendant-Intervenors.
Court No. 12-00365
United States Court of International Trade
June 24, 2014
Slip Op. 14-70 | 992 F. Supp. 2d 1360
EATON, Judge
Francis J. Sailer, Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP, of Washington, D.C., argued for consolidated plaintiffs Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd., Cherishmet Inc., Beijing Pacific Activated Carbon Products Co., Ltd., Datong Municipal Yunguang Activated Carbon Co., Ltd., and Shanxi Industry Technology Trading Co., Ltd. With him on the briefs were Mark E. Pardo, Dharmendra N. Choudhary, Andrew T. Schutz, and Kavita Mohan.
Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, D.C., for consolidated plaintiff Tangshan Solid Carbon Co., Ltd.
Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., argued for defendant. On the brief were Melissa M. Devine, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, Stuart F. Delery, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., Assistant Director. Of counsel on the brief was Devin S. Sikes, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, D.C.
John M. Herrmann, Kelley Drye & Warren, LLP, of Washington, D.C., argued for defendant-intervenors Calgon Carbon Corp. and Norit Americas, Inc. With him on the brief were David A. Hartquist and R. Alan Luberda.
OPINION
EATON, Judge:
This matter is before the court on the USCIT Rule 56.2 motions for judgment on the agency record of plaintiffs Jacobi Carbons AB and Jacobi Carbons, Inc. (collectively, “Jacobi“)1, and consolidated plaintiffs2 Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd. (“GHC“), Cherishmet Inc. (“Cherishmet“), Beijing Pacific Activated Carbon Products Co., Ltd. (“BPACP“), Datong Municipal Yunguang Activated Carbon Co., Ltd. (“Datong Municipal“), Shanxi Industry Technology Trading Co., Ltd. (“Shanxi Industry“), Carbon Activated Corp. and Car Go Worldwide, Inc. (collectively, “CAC“), and Tangshan Solid Carbon Co., Ltd. (“Tangshan“) (collectively, “plaintiffs“). By their motions, plaintiffs, all of which are producers, exporters, or importers of subject merchandise,3 challenge the U.S. Department of Commerce‘s (“Commerce” or
Jacobi, GHC, Cherishmet, BPACP, Datong Municipal, CAC, and Tangshan contest two aspects of the Department‘s Final Results: (1) the selection of the surrogate value for carbonized material, which is one of the primary inputs used in the production of subject merchandise;4 and (2) the selection of the surrogate value for truck freight. See Resp‘t Pls.’ Rule 56.2 Mot. for J. on the Agency R. 1-2 (ECF Dkt. No. 47) (“Jacobi‘s Br.“); Mem. in Supp. of Pls.’ Rule 56.2 Mot. for J. upon the Agency R. 1 (ECF Dkt. No. 46) (“GHC‘s Br.“)5; Rule 56.2 Mot. for J. upon the Agency R. of Pls. Carbon Activated Corporation and Car Go Worldwide, Inc. 2 (“CAC‘s Mot.“); Consol. Pl. Tangshan Solid Carbon Co., Ltd.‘s Rule 56.2 Mot. for J. on the Agency R. 1-2 (“Tangshan‘s Mot.“).
Shanxi Industry and Tangshan (collectively, “separate rate companies” or “separate rate respondents“) are plaintiffs that established their independence from Chinese government control, and as a result, were assigned a separate antidumping duty rate in the Final Results. See Final Results,
Defendant United States opposes plaintiffs’ motions and asks that Commerce‘s Final Results be sustained. Def.‘s Resp. to Pls.’ and Consol. Pls.’ Mots. for J. upon the Agency R. 2 (ECF Dkt. No. 56) (“Def.‘s Br.“). Defendant-intervenors, Calgon Carbon Corp. and Norit Americas, Inc. (collectively, “defendant intervenors“), each domestic manufacturers of activated carbon, join in opposition to plaintiffs’ motions. Def.-Ints.’ Resp. in Opp‘n to Consol. Pls.’ Mots. for J. on the Agency R. 1 (ECF Dkt. No. 58) (“Def.-Ints.’ Br.“). Jurisdiction lies pursuant to
BACKGROUND
On April 27, 2007, the Department issued the antidumping duty order on certain activated carbon from the PRC. Certain Activated Carbon From the PRC,
On May 4, 2012, the Department published its Preliminary Results for the review, selecting Datong Juqiang Activated Carbon Co., Ltd.,7 Jacobi, and GHC as mandatory respondents. Certain Activated Carbon from the PRC,
Following publication of the Preliminary Results, Jacobi, GHC, Cherishmet, and BPACP submitted comments that placed on the record additional data from the Philippines, and urged the Department to use it to value all of the major material inputs. Issues & Dec. Mem. at cmt. 1. In the Final Results, Commerce found that “both the Philippines and Thailand [were] significant producers [of activated carbon] because, in quantity terms, they [were] exporters of goods identical to the subject merchandise, [and] ha[d] production of comparable merchandise as evidenced by the financial statements on the record.” Issues & Dec. Mem. at cmt. 1. The Department determined, however, that although otherwise “relatively equal in terms of quality and satisf[action] of all of the surrogate value criteria,” the Philippine data (particularly the financial statements) was “clearly superior” to the Thai data because it was “industry-specific, whereas the Thai data [was] for the manufacturing sector in general.” Issues & Dec. Mem. at cmt. 1. The Philippine data was also found to be more contemporaneous to the POR than the Thai data. Issues & Dec. Mem. at cmt. 1.
As a result, Commerce departed from its determination in the Preliminary Results, and selected the Philippines as the primary surrogate country to value most of the major material inputs used in the production of subject merchandise, including the carbonized material and truck freight.8 Final Results,
STANDARD OF REVIEW
“The court shall hold unlawful any determination, finding, or conclusion found . . . to be unsupported by substantial evidence on the record, or otherwise not in accordance with law.”
DISCUSSION
I. LEGAL FRAMEWORK
“The United States imposes duties on foreign-produced goods that are sold in the United States at less-than-fair value.” Clearon Corp. v. United States, 37 CIT —, Slip Op. 13-22, at 4, 2013 WL 646390 (2013). The Department is responsible for making the fair value determination, and is directed by statute to make a “comparison . . . between the export price or constructed export price10 and normal value.”
To determine the normal value of the subject merchandise, Commerce is directed to use “the best available information regarding the values of such factors in a [comparable] market economy country or countries considered to be appropriate by the [Department].” Id. Commerce‘s practice, in selecting the best available information for valuing factors of production, is to “choose surrogate values that represent broad market-average prices, prices specific to the input, prices that are net of taxes and import duties, prices that are contemporaneous with the POR, and publicly available non-aberrational data from a single surrogate market-economy.” Clearon, 37 CIT at —, Slip Op. 13-22, at 7 (citation omitted) (internal quotation marks omitted); see also
II. EXHAUSTION OF ADMINISTRATIVE REMEDIES
As an initial matter, defendant and defendant-intervenors claim that plaintiffs failed to exhaust their administrative remedies with respect to certain arguments. They contend that plaintiffs failed to present these arguments during the underlying administrative proceeding, and are thus, prohibited from making them now before the court. Specifically, defendant and defendant-intervenors allege that plaintiffs failed to present their arguments before Commerce with respect to (1) the Philippine surrogate value for truck freight selected by the Department, and (2) claims that the import data under Philippine HTS 4402 is not the best available information when compared to the domestic Cocommunity data12 and the price data used by Commerce to value carbonized material in prior reviews. Def.‘s Br. 27-37; Def.-Ints.’ Br. 10-13.
The court finds defendant and defendant-intervenors’ exhaustion claims to be unpersuasive. A court “shall, where appropriate, require the exhaustion of administrative remedies.”
Here, in the Final Results, Commerce changed the primary surrogate country from Thailand to the Philippines to value most of the major factors of production used in the production of subject merchandise. Issues & Dec. Mem. at cmt. 1. In its Preliminary Results, where it used Thailand as the primary surrogate country, Commerce valued carbonized material using GTA import data derived from Thai HTS 440290, and used publicly available Thai data from a Thai consulting company to value truck freight transportation costs. Preliminary Results Surrogate Values Mem. at 9, 13. Following publication of the Preliminary Results, the parties submitted case and rebuttal briefs to the Department regarding its determinations, and while plaintiffs argued for the use of the Philippine data, they could hardly foresee what use the Department would make of that data.
In the Final Results, Commerce departed from its prior determinations by selecting the Philippines as the primary surrogate country to value most of the factors of production. Issues & Dec. Mem. at cmt. 1. Thus, Commerce valued the carbonized material input using Philippine HTS 4402, and valued truck freight using publicly available data reported in the Cost of Doing Business in Legazpi City, Philippines. Final Results Surrogate Values Mem. at 3, 6. As a result, it was not until after the submission of the parties’ case briefs that Commerce made its determination to select the Philippines as the primary surrogate country, and articulated its basis for its selection of sources to value carbonized material and truck freight (i.e., Philippine HTS 4402 and Cost of Doing Business). It is simply too much to ask of the parties to anticipate (1) that Commerce would change the surrogate country between the preliminary and Final Results, (2) the reasons that the Department would state for deciding to change surrogate countries, and (3) precisely how Commerce would value the various inputs. Under similar circumstances, it has been held that a party “is not required to predict that Commerce would accept other parties’ arguments and change its decision.” Qingdao, 33 CIT at 1093, 637 F.Supp.2d at 1237. Accordingly, because plaintiffs had no realistic opportunity to present their arguments before the Department, the court finds that plaintiffs did not fail to exhaust their administrative remedies.
III. COMMERCE‘S CHOICE OF A SURROGATE VALUE FOR CARBONIZED MATERIAL IS IN ACCORDANCE WITH LAW AND SUPPORTED BY SUBSTANTIAL EVIDENCE
A. The Cocommunity Data Is Deficient
In the Final Results, the Department found that the Cocommunity13 price data placed on the record by Jacobi was not the
When making a “best available information” finding, this Court, among other things, has repeatedly confirmed the importance that the information used to value the factors of production (1) represents a broad market average of prices for the input in question, and (2) be exclusive of taxes and duties. See, e.g., Jining Yongjia Trade Co. v. United States, 34 CIT —, Slip Op. 10-134, at 23, 2010 WL 5121964 (2010) (“Commerce‘s practice, in selecting the best available information for valuing [factors of production], is to select surrogate values which are . . . representative of a broad market average . . . and exclusive of taxes and duties.” (citation omitted) (internal quotation marks omitted)).
As noted, in the Final Results, Commerce selected the Philippines as the primary surrogate country to value most of the major factors of production used in the manufacture of activated carbon. Final Results,
Although plaintiffs argue for the use of the Cocommunity data that they placed on the record to value the carbonized material input, it is clear that the data is deficient in at least two important respects. The Cocommunity data‘s deficiencies begin with its limited geographical scope for the prices, in the Philippines, of carbonized material derived from coconut shell charcoal. The Cocommunity publication unmistakably indicates that its Philippine prices for coconut shell charcoal are based only on one geographical area. That is, the data came only from the Visayas region.15 See Letter from Ross Bidlingmaier, Counsel for Jacobi, to The Honorable John Bryson, Secretary of Commerce, U.S. Department of Commerce at 51, PD 101, at bar code 3041311-01 (Nov. 16, 2011), ECF Dkt. No. 43 (Apr. 5, 2013) (“Jacobi‘s Surrogate Value Comments“) (“Coconut Shell Charcoal: Philippines (Domestic), Visayas, Buyer” (emphasis added)). A review of the “Prices of Coconut Products and Selected Oils (US$/MT)” ledger makes that much clear. See Jacobi‘s Surrogate Value Comments at 51.
GHC, in its case brief, acknowledges that the Cocommunity publication lacked countrywide data. GHC‘s Br. 27 (“[T]he product specific Cocommunity data, even though lacking country wide coverage, represent a far more suitable surrogate value
Next, aside from Jacobi‘s own statements in its surrogate value comments submitted to Commerce, plaintiffs cite no record evidence demonstrating that the Cocommunity prices are tax and duty exclusive. See Jacobi‘s Surrogate Value Comments at 5 (“[T]he data in Cocommunity meet the Department‘s criteria of being specific to the input in question and the data tax exclusive.“). As has been noted, that a price be “exclusive of tax and duties” is another important preference for Commerce when considering the “best available information,” so that an “apples to apples” calculation can be made when constructing normal value. The Department has found that import data is “reported on a duty-exclusive, tax-exclusive basis.” Shandong Huarong Gen. Corp. v. United States, 25 CIT 834, 845, 159 F.Supp.2d 714, 725 (2001); see also Issues & Dec. Mem. at cmt. 1 (“Finally, the Department previously has found that data from the [GTA], such as that on the record, is publicly-available, represents a broad market average, and is tax and duty exclusive.” (emphasis added) (citation omitted)).
The burden of building the administrative record lies with the interested parties. QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed.Cir.2011) (citations omitted). Thus, the burden, here, rested with plaintiffs to supply Commerce with a probative source showing that the Cocommunity prices were free of tax and duty. Because plaintiffs put no evidence on the record showing that the Cocommunity data was tax and duty free, the data lacks an important criterion looked at in a best available information determination.
Based on the foregoing, the Department‘s finding that the Cocommunity data lacked two important preferences looked to by Commerce when making a best available information determination was reasonable.
B. Commerce‘s Past Practice
GHC also contends that Commerce‘s failure to use the Cocommunity data as the surrogate value for carbonized material marked a departure from an established agency preference and policy to rely on domestic data for the valuation of material inputs, rather than import statistics. GHC‘s Br. 14 (citing Tianjin Magnesium Int‘l Co. v. United States, 34 CIT —, —, 722 F.Supp.2d 1322, 1333 (2010) (“[W]hen the Department has a choice between domestic data and import statistics, Commerce‘s preference is to use domestic data.” (citations omitted)); Dorbest Ltd. v. United States, 30 CIT 1671, 1688-89, 462 F.Supp.2d 1262, 1278-79 (2006), rev‘d on other grounds, 604 F.3d 1363 (Fed.Cir.2010); Hebei Metals & Minerals Imp. & Exp. Corp. v. United States, 29 CIT 288, 294-303, 366 F.Supp.2d 1264, 1269-77 (2005)).
While it may be the case that Commerce has a preference for domestic data, the Department, as has been noted, also prefers, whenever possible, to use data that (1) represents a broad market average of prices for the input, and (2) is exclusive of taxes and duties. Jining, 34 CIT at —, Slip Op. 10-134, at 23. Had the record contained domestic countrywide data that was tax and duty free, GHC‘s claim might have had merit. Here, although the Cocommunity data represented domestic price information, the data (1) was regional and not countrywide, and (2) was not shown to be tax and duty exclusive. None of the cases relied upon by GHC involved domestic price data that suffered from similar deficiencies as those in the data published in Cocommunity. Thus, these cases do not aid plaintiffs.
C. Specificity of HTS 4402
Plaintiffs also argue that, when valuing the carbonized material input, the Department was required to employ a surrogate price for the type of carbonized material that they actually used in their production processes.16 Jacobi‘s Br. 1-2; GHC‘s Br. 8-9. Thus, they insist that, even though the Philippine HTS 4402 heading covers the carbonized material derived from shell that Jacobi and GHC used in their processes, the heading cannot be used because it also covers carbonized material made from wood, which, they claim, neither company used in their production of activated carbon.
For plaintiffs, because Commerce used a surrogate value for the carbonized material input that was derived, in part, from a feedstock (i.e., wood) other than those used by Jacobi‘s and GHC‘s suppliers (anthracite coal and coconut shell charcoal for Jacobi, and bituminous coal, coconut shell charcoal, “and other carbonized materials” for GHC), HTS 4402 was not the best available information on the record. Jacobi‘s Br. 2 (“Very simply, the import data for HTS category 4402 cannot possibly be considered the ‘best information available’ for carbonized material because such import data for HTS category 4402 concerned primarily raw material inputs [ (i.e., wood)] that were not used by Jacobi to make the steam activated carbon produced by Jacobi and exported to the United States.“); see Letter from Francis J. Sailer, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, to Secretary of Commerce, U.S. Department of Commerce at 17, 22, CD 106, at bar code 3046449-01 (Dec. 14, 2011), ECF Dkt. No. 43 (Apr. 5, 2013) (“GHC‘s Supplemental Section D Response“); Letter from Daniel L. Porter, Counsel for Jacobi, to The Honorable John Bryson, Secretary of Commerce, U.S. Department of Commerce at 10-11, PD 109, at bar code 3041511-01 (Nov. 17, 2011), ECF Dkt. No. 43 (Apr. 5, 2013); Letter from Ross Bidlingmaier, Counsel for Jacobi, to The Honorable Rebecca M. Blank, Acting Secretary of Commerce, U.S. Department of Commerce at 99, 146, PD 29, at bar code 3027307-01 (Sept. 1, 2011), ECF Dkt. No. 43 (Apr. 5, 2013).
With respect to plaintiffs’ legal argument, the court finds that plaintiffs are correct, that the factors of production actu-
Although plaintiffs are correct in their assessment of the importance of the inputs actually used in the production of their activated carbon, their claims with respect to the HTS 4402 data fail on substantial evidence grounds. As has been noted, both GHC and Jacobi use carbonized material produced from shell and coal in their manufacturing processes. As part of their argument favoring the use of the Cocommunity data over the data obtained from imports under HTS 4402, plaintiffs insist that carbonized material derived from shell, and carbonized material derived from coal, are comparably priced.
Specifically, the Cocommunity data reflects the price for carbonized material derived from shell, while the data for Philippine HTS 4402 includes import data for carbonized material derived from shell, as well as other sources, such as wood. GHC argues that price data for coconut shell charcoal (i.e., the Cocommunity price data) is the best available information, because the Department found, in the initial less-than-fair value investigation and in its final results of remand redetermination in the first administrative review of the Order, that coconut shell charcoal and coal-based carbonized materials are comparably priced. GHC‘s Br. 15-16 (citing Certain Activated Carbon from the PRC,
Despite the Department‘s finding as to price comparability between shell charcoal and coal, this finding is not determinative here. First, it is worth noting that the discussion leading up to the comparability finding is less than clear as to whether the price of shell-derived charcoal is comparable to that of coal-based carbonized material, or if the materials themselves are comparable for the use in the manufacture of activated carbon. Although, in the Calgon Carbon Remand Results in the first administrative review of the antidumping duty order, the Department concluded “that Indian HTS number 4402.00.10 ‘Coconut Shell Charcoal’ results in a better, input-specific price for coal-based carbonized materials,” the discussion leading up to this finding does not support the conclusion as to price. Calgon Carbon Remand Results at 11 (emphasis added).
Moreover, even if shell-based charcoal and coal-based carbonized materials have comparable prices, the Cocommunity data is only marginally more useful on the basis of specificity than the import data. This is because HTS heading 4402 also encompasses shell-derived carbonized material. Thus, if coconut shell charcoal is “comparable” to coal-derived carbonized material, the import heading covers entries comparably priced with coal-derived carbonized material too. The Cocommunity publication that covers price data for coconut shell charcoal is only more specific to value coal-based carbonized material than HTS 4402 because the import data also covers imports of wood-based carbonized material. Thus, it is only the possibility that the HTS 4402 data could contain some entries of carbonized material derived from wood that arguably makes this data less comparable to the carbonized materials used by GHC and Jacobi than the Cocommunity data.
This observation leads to plaintiffs’ next argument. Plaintiffs contend that the Philippine HTS 4402 import data is less specific than the Cocommunity data because the heading covers carbonized material derived from wood, which they insist, is a material that they did not use in the production of their activated carbon. As noted, plaintiffs argue, and the court has found, that the factors of production actually used by a respondent in an administrative review are important, if not controlling, in determining normal value. Nonetheless, the record here does not support plaintiffs’ claim.
Despite arguments to the contrary, the record demonstrates that GHC has used wood as a material in the production of its activated carbon. See Letter from Francis J. Sailer, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, to Secretary of Commerce, U.S. Department of Commerce at 44, PD 17, at bar code 3025194-05 (Aug. 19, 2011), ECF Dkt. No. 43 (Apr. 5, 2013) (“We also produce variety high-grade pellet products with the materials of coconut shell, nutshell and wood.” (emphasis added)). Moreover, Jacobi itself asserted in this review that the carbonized material used to produce the subject merchandise can be derived from coconut shell and coal, as was used by Jacobi and GHC, but also from wood, lignite, and other materials. See Letter from Ross Bidlingmaier, Counsel for Jacobi, to The Honorable John Bryson, Secretary of Commerce, U.S. Department of Commerce at 13, PD 159, at bar code 3056304-01 (Feb. 10, 2012), ECF Dkt. No. 43 (Apr. 5, 2013) (“Jacobi‘s
Based on the foregoing, it appears that the Cocommunity data is only modestly more specific to the carbonized material inputs used in the production of plaintiffs’ activated carbon than the import data found under HTS 4402. The court‘s best available information inquiry, however, does not end here. Despite the specificity conclusion (which remains somewhat uncertain based on the lack of clarity as to price comparability in the discussion in the Calgon Carbon Remand Results), the Cocommunity data is unable to overcome the earlier discussed deficiencies from which it suffers, i.e., that the publication‘s price data for coconut shell charcoal did not represent a broad market average, and was not shown to be tax and duty exclusive. Put another way, Commerce was not unreasonable in finding that a slight superiority in specificity failed to compensate for the Cocommunity data‘s deficiencies with respect to the limited breadth of market prices it supplied and the lack of record evidence demonstrating that the publication‘s prices were tax and duty free.
D. Imports Under HTS 4402
Finally, plaintiffs argue that imports made under HTS 4402 during the POR did not contain any entries of coconut shell charcoal. Jacobi‘s Br. 19. For plaintiffs, if there were no imports of the input used to produce the carbonized material that they employed in the manufacture of their merchandise, then the surrogate value for that input is not the best available information. GHC‘s Br. 17–18 (“[D]uring [the] POR . . . there were no imports of coconut shell charcoal under HTS 4402000001. As such, the Department succumbed to a clear error of fact in its belief that the broad basket sub-heading HTS 4402.00 captured imports of coconut shell charcoal. The issue should be remanded to the Department to correct this erroneous finding of fact because it renders the Department‘s choice as arbitrary and wholly unsupported by substantial evidence.“).
Plaintiffs’ only support on the record for this assertion, however, appears to be Jacobi‘s own statement in its surrogate value comments submitted before the Department. See Jacobi‘s Surrogate Value Comments at 4 (“First, there are no data available for coconut shell charcoal from the Philippines imported under [HTS 4402.00.00.01]“); Jacobi‘s Br. 20; GHC‘s Br. 17. Beyond this assertion, plaintiffs do not point to any evidence that there were no inputs of shell-derived carbonized material entered during the POR. Thus, plaintiffs have failed to establish their conclusion with probative record evidence.
E. Commerce Reasonably Determined the Surrogate Value for Carbonized Material
Based on the foregoing, the Department‘s selection of data from Philippine HTS 4402 as the surrogate value for carbonized material in the present review is in accordance with law and supported by substantial evidence. By their arguments, plaintiffs have demonstrated that the Cocommunity data is marginally more specific than the HTS 4402 data. Because of the infirmities in the Cocommunity data, however, it is apparent that Commerce did not err in its selection of GTA import data from HTS 4402 (“Wood Charcoal (Includ-
Accordingly, the court finds that the Cocommunity data was not the best available information on the record with which to calculate the surrogate value for carbonized material. In addition, Commerce reasonably determined that the Philippine GTA import data under HTS 4402 represents the best available information with which to value the carbonized material input used in the production of subject merchandise.
IV. COMMERCE‘S CHOICE FOR A SURROGATE VALUE FOR TRUCK FREIGHT IS SUPPORTED BY SUBSTANTIAL EVIDENCE
In the Preliminary Results, the primary surrogate country selected by the Department was Thailand. Preliminary Results Surrogate Values Mem. at 1. Specifically, “[t]o value the cost of transportation [(truck freight)] from the suppliers to the factory, the Department calculated a contemporaneous per-unit average rate based on publicly available data from Siam Partners Group Company Limited” (“Siam“), a Thai consulting company, for the year 2005, for the transportation of goods by truck from Bangkok to five other provinces in Thailand. Truck Freight: Transportation Costs, Including Fuel Costs and Freight Rates, Preliminary Results Surrogate Values Mem. at 9, Attach. 8 at 55. Commerce computed the per-unit average rate by dividing the cost per metric ton rates by the distance from each province to Bangkok. Preliminary Results Surrogate Values Mem. at 9. The Department then averaged the rates for each province to obtain a cost per metric ton per kilometer rate of 0.903 baht. Preliminary Results Surrogate Values Mem. at 9. Because the Siam data was from 2005, the Department then inflated the rate using the Thai Producer Price Index. Preliminary Results Surrogate Values Mem. at 9. As noted, the POR was April 1, 2010, through March 31, 2011.
For the reasons previously stated, the primary surrogate country selection was changed from Thailand in the Preliminary Results, to the Philippines in the Final Results. Thus, the Department used Philippine data to revalue most of the major factors of production for the subject merchandise, including the cost of truck freight from the suppliers to the factory. See Final Results Surrogate Values Mem. at 6. In the Final Results, Commerce “calculated a contemporaneous per-unit average rate based on publicly available data [as reported in] the Cost of Doing Business in Legazpi City, Philippines” from the year 2010. Final Results Surrogate Values Mem. at 6, 53. Commerce computed the per-unit average rate by “taking the average of the high and low [p]eso per [kilogram] rate, and then dividing that amount by the distance from Legazpi City to Manila” to obtain a rate of 0.01 pesos per kilogram per kilometer. Final Results Surrogate Values Mem. at 6. This rate was substantially higher than that found in the Preliminary Results.
GHC objects to the Department‘s use of the Philippine data to value truck freight. It argues that, despite the agency‘s preference to use a single surrogate country, and despite having put the Philippine data on the record itself and urging its use to value all of the factors of production, Commerce should have continued to use the Thai truck freight data used in the Preliminary Results as the surrogate value. See GHC‘s Br. 35-36 (citing Shantou Red Garden Foodstuff Co. v. United States, 36 CIT —, 880 F.Supp.2d 1332, 1334-35 (2012)); see generally Case Br. of Cherishmet Group and Datong Juqiang Activated Carbon Co., Ltd., PD 243 at 3081185-01
As noted, Commerce‘s preference for surrogate information is to use data that is “product-specific, representative of a broad market average, . . . contemporaneous with the POR[,] and exclusive of taxes and duties.” Jining, 34 CIT at —, Slip Op. 10-134, at 23 (citation omitted) (internal quotation marks omitted). In addition, Commerce‘s regulations direct that “the Secretary [of Commerce] normally will value all factors [of production] in a single surrogate country.”
Having taken GHC‘s arguments into consideration, the court holds that the Department reasonably found that Philippine data was the best available information with which to value truck freight. While the Thai data contains ten different price points, valuing the cost of transportation from Bangkok to five other provinces, and may appear to be more probative in this regard, the Thai data suffers from defects that diminish its worth. See Truck Freight: Transportation Costs, Including Fuel Costs and Freight Rates, Preliminary Results Surrogate Values Mem., Attach. 8 at 55.
Although GHC contends that the Philippine data lacked specificity because it was based on the transportation of “loose cargo” rather than that of a “full truckload,” the court is unpersuaded. The Thai source is based on the rental cost of a truck carrying ten to twelve tons of cargo. See Truck Freight: Transportation Costs, Including Fuel Costs and Freight Rates, Preliminary Results Surrogate Values Mem., Attach. 8 at 55. The source further states that a full cargo load for one of these trucks is thirteen tons. See Truck Freight: Transportation Costs, Including Fuel Costs and Freight Rates, Preliminary Results Surrogate Values Mem., Attach. 8 at 55. The Philippine data, on the other hand, reported transportation costs for a truck carrying “loose cargo.” See Final Results Surrogate Values Mem. at 51. Nowhere in the Philippine data source does it define or explain the relevance or meaning of “loose cargo,” nor has GHC offered anything to support its contention that the Philippine data based on the transportation of “loose cargo” is not representative of the transportation costs incurred for a fully loaded truck. Thus, the Thai data appears to represent shipping costs for less than a full truckload of shipments, while there is no record evidence that the Philippine data is not representative of the shipping costs for a full truckload, albeit of loose cargo. Without more, GHC‘s speculation that the Philippine data lacks specificity cannot be credited.
Additionally, GHC claims that the Philippine data is aberrational when compared to truck freight rates used by Commerce in prior reviews. Its argument is premised on the observation that the surrogate value for truck freight selected in the Final Results is several times higher than the values applied in prior reviews when Indian data was employed. Specifically, the Philippine data is eight times higher
Despite plaintiffs’ arguments, the Philippine source appears to be the best on the record. First, the data is from 2010, and is thus, far more contemporaneous to the POR (April 1, 2010, through March 31, 2011) than the Thai source which supplied its data from August 8, 2005, over four years prior to the POR. Compare Final Results Surrogate Values Mem. at 53, with Truck Freight: Transportation Costs, Including Fuel Costs and Freight Rates, Preliminary Results Surrogate Values Mem., Attach. 8 at 55. Indeed, the Philippine data‘s contemporaneity was expressly identified by Commerce as one of its principal reasons for abandoning the use of Thailand as the primary surrogate country in favor of the Philippines. See Issues & Dec. Mem. at cmt. 1; see, e.g., Jining, 34 CIT at —, Slip Op. 10–134, at 23 (“Commerce‘s practice, in selecting the best available information for valuing [factors of production], is to select surrogate values which are . . . contemporaneous with the POR. . . . This practice has found approval in this Court.” (citations omitted) (internal quotation marks omitted)).
Next, although the Philippine truck freight data relied upon by Commerce was based on the price range of a single route, from Legazpi to Manila, there is evidence on the record for a second route, from Legazpi to Naga/Tabaco, with the exact same price range. See Final Results Surrogate Values Mem. at 51 (listing price ranges from Legazpi to Manila of 5.00/kg to 8.00/kg, and from Legazpi to Naga/Tabaco of 5.00/kg to 8.00/kg). This suggests that the Legazpi to Manila rate is, in fact, more representative than plaintiffs claim.
Finally, although not absolute, the Department is directed by its regulations to endeavor to value all factors of production with a single surrogate country. See
This preference stems from the sensible conclusion that “deriving the surrogate data from one surrogate country limits the amount of distortion introduced into [the Department‘s] calculations because a do-
Accordingly, because (1) the Philippine data is more specific than the Thai dataset on the record, (2) the Philippine data is more contemporaneous to the POR than the competing Thai dataset, (3) the Philippine data, while having fewer data points than the Thai data, is supported by information from two routes, and (4) the court is mindful of Commerce‘s goal to minimize distortion by means of its strong preference to value factors of production within a single surrogate country, Commerce was reasonable in its choice of the Philippine data as the best available information to value truck freight. Thus, the Department‘s finding is supported by substantial evidence.
V. COMMERCE‘S CALCULATION OF THE SEPARATE RATE IS SUSTAINED
CAC and the separate rate respondents, Shanxi Industry and Tangshan, urge the court, should it remand the Final Results to Commerce, to instruct the Department to recalculate the dumping margin assigned to the separate rate respondents based on any recalculation of the rate assigned to the mandatory respondents. CAC‘s Mot. 2; Shanxi Industry‘s Br. 2; Tangshan‘s Mot. 2. These companies raise no challenge with respect to the manner in which their rate was calculated. See Shanxi Industry‘s Br. 2 (“[I]n accordance with the law, Shanxi‘s margin was calculated in a manner consistent with the Department‘s customary practice of assigning dumping margins to non-individually investigated companies based on the margins calculated for the exporters and producers that are individually investigated as mandatory respondents.“). Rather, the success of their motions hinges solely on the merits of Jacobi and GHC‘s underlying motions, challenging the surrogate values selected for carbonized material and truck freight, which the court has found wanting. Because the court sustains the Department‘s Final Results, the separate rate respondents’ motions for judgment on the agency record are thereby rendered moot. Accordingly, the separate rate calculated by the Department in the Final Results is sustained, and the motions of CAC, Shanxi Industry, and Tangshan are denied.
CONCLUSION
Based on the foregoing, it is hereby
ORDERED that the Department of Commerce‘s Final Results are sustained. Judgment will be entered accordingly.
Richard K. Eaton
Judge
Notes
Certain Activated Carbon From the PRC,[A] powdered, granular, or pelletized carbon product obtained by “activating” with heat and steam various materials containing carbon, including but not limited to coal (including bituminous, lignite, and anthracite), wood, coconut shells, olive stones, and peat.
The scope of this order covers all forms of activated carbon that are activated by steam or CO2 [(carbon dioxide)] . . . . Unless specifically excluded, the scope of this investigation covers all physical forms of certain activated carbon . . . .
Excluded from the scope of the order are chemically-activated carbons. . . . Chemically activated carbons are typically used to activate raw materials with a lignocellulosic component such as cellulose, including wood, sawdust, paper mill waste and peat.
The term “constructed export price” means the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter. . . .