Slip Op. 16-84
UNITED STATES COURT OF INTERNATIONAL TRADE
ALBEMARLE CORP.,
Plaintiff,
and
NINGXIA HUAHUI ACTIVATED CARBON CO., LTD.,
Plaintiff-Intervenor, Before: Timothy C. Stanceu, Chief Judge v. Consol. Court No. 11-00451 UNITED STATES,
Defendant,
CALGON CARBON (TIANJIN) CO., LTD., CALGON CARBON CORP. AND NORIT AMERICAS INC.,
Defendant-Intervenors.
OPINION AND ORDER
[Instructing the U.S. Department of Commerce in response to a mandate issued by the U.S. Court of Appeals for the Federal Circuit]
Dated: September 7, 2016
Jeffrey S. Grimson, Mowry & Grimson, PLLC, of Washington, DC, for plaintiff Albemarle Corp. and plaintiff-intervenor Ningxia Huahui Activated Carbon Co., Ltd. With him on the brief were Kristin H. Mowry, Jill A. Cramer, and Sarah M. Wyss.
Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, DC, for plaintiff Shanxi DMD Corp. With him on the brief were John J. Kenkel and J. Kevin Horgan.
Francis J. Sailer, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, DC, for plaintiffs Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd., Consol. Court No. 11-00451 Page 2
Beijing Pacific Activated Carbon Products Co., Ltd. and Cherishmet Inc. With him on the brief were Mark E. Pardo, Andrew T. Schutz, and Kavita Mohan.
Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Devin S. Sikes, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Craig A. Lewis, Hogan Lovells U.S. LLP, of Washington, DC, for defendant-intervenor Calgon Carbon (Tianjin) Co., Ltd.
David A. Hartquist, Kelley Drye & Warren LLP, of Washington, DC, for defendant-intervenors Calgon Carbon Corp. and Norit Americas Inc. With him on the brief were R. Alan Luberda and John M. Herrmann II.
Stanceu, Chief Judge: Before the court is the mandate issued by the United States Court
of Appeals for the Federal Circuit (“Court of Appeals”) in Albemarle Corp. & Subsidiaries v.
United States, 821 F.3d 1345 (Fed. Cir. 2016) (“Albemarle III”). CAFC Mandate in Appeal Nos.
2015-1288, 2015-1289, and 2015-1290 (June 23, 2016), ECF No. 130. This decision affirmed in
part, and vacated in part, the judgment of the United States Court of International Trade (“CIT”)
in Albemarle Corp. v United States, 38 CIT __, 27 F. Supp. 3d 1336 (2014) (“Albemarle II”). To
implement the mandate of the Court of Appeals, the court issues instructions to the International
Trade Administration, United States Department of Commerce (“Commerce” or the
“Department”).
I. BACKGROUND
In this consolidated case, several plaintiffs contested the final determination (“Final
Results”) Commerce issued to conclude the third periodic administrative review of an
antidumping duty order on activated charcoal from the People’s Republic of China. The
contested decision was published as Certain Activated Carbon from the People’s Republic of
China: Final Results and Partial Rescission of Third Antidumping Duty Administrative Review, Consol. Court No. 11-00451 Page 3
76 Fed. Reg. 67,142 (Int’l Trade Admin. Oct. 31, 2011) (“Final Results”). Background on this
case is presented in the opinions in Albemarle III, 821 F.3d at 1347-51, Albemarle II, 38 CIT at
__, 27 F. Supp. 3d at 1339-40, and Albemarle Corp. v United States, 37 CIT __, __, 931 F. Supp.
2d 1280, 1283-84 (2013) (“Albemarle I”).
The remaining issue in this litigation is the antidumping duty margin to be assigned to
Ningxia Huahui Activated Carbon Company Ltd. (“Huahui”), which was a “separate rate,” i.e.,
non-individually-examined, respondent in the third administrative review, at the conclusion of
which Commerce assigned de minimis margins to the two mandatory respondents. In the Final
Results, Commerce assigned Huahui the $0.44/kg margin it had assigned Huahui as an
individually-examined respondent in the prior, i.e., the second, administrative review. Final
Results, 76 Fed. Reg. at 67,145. Commerce assigned all other separate rate respondents a margin
of $0.28/kg, which was the margin Commerce had assigned to separate rate respondents in the
second review. Id.
In Albemarle I, the Court of International Trade ordered Commerce to reconsider its
assignment of the $0.28/kg margin to the separate rate respondents. Albemarle I, 37 CIT at __,
931 F. Supp. 2d at 1296-97. Pending a remand redetermination by Commerce, the CIT reserved
any decision on whether the $0.44/kg margin Commerce assigned to Huahui in the Final Results
was permissible, reasoning that “Commerce may or may not decide to assign Huahui a different
margin based on other decisions it makes upon remand.” Id., 37 CIT at __, 931 F. Supp. 2d
at 1293.
In the determination responding to the order the Court of International Trade issued in
Albemarle I, Commerce again determined de minimis margins for the two mandatory
respondents. Final Results of Redetermination Pursuant to Court Remand, at 25 (Jan. 10, 2014), Consol. Court No. 11-00451 Page 4
ECF No. 96. Based on those de minimis margins, and under protest, Commerce assigned
margins of zero to the parties other than Huahui who were separate rate respondents in the third
review. Id. at 13, 25. Commerce “decline[d] to reconsider Huahui’s dumping margin” and
thereby continued to assign the $0.44/kg margin to Huahui. Id. at 22.
The Court of International Trade sustained the Department’s assigning zero margins to
the separate rate respondents other than Huahui as well as the assignment of the $0.44/kg margin
to Huahui. Albemarle II, 38 CIT at __, 27 F. Supp. 3d at 1352. On appeal, the Court of Appeals
affirmed the judgment as to the zero margins and reversed the judgment as to the $0.44/kg
margin. The Court of Appeals remanded this case to the Court of International Trade “so that it
may issue appropriate instructions to Commerce” on the question of the margin to be assigned to
Huahui. Albemarle III, 821 F.3d at 1359. This opinion sets forth the instructions to effectuate
the decision of the Court of Appeals.
II. DISCUSSION
In reviewing the CIT’s affirmance of the $0.44/kg margin assigned to Huahui, the Court
of Appeals considered the question of “whether Commerce’s chosen method of carrying forward
Huahui’s data from the second period of review to the third was reasonable.” Albemarle III,
821 F.3d at 1355-56. Albemarle II had noted that the $0.44/kg margin was based on Huahui’s
own data in the prior review and, in deciding that this method was reasonable, had concluded
that Commerce acted permissibly in choosing specificity over contemporaneity. Albemarle II,
38 CIT at __, 27 F. Supp. 3d at 1348-50.
Reaching the opposite conclusion, the Court of Appeals relied upon 19 U.S.C.
§ 1677d(c)(5)(B) and the Statement of Administrative Action accompanying the Uruguay Round
Agreements Act, H.R. Rep. No. 103-316, vol. 1 at 873 (1994) reprinted in 1994 Consol. Court No. 11-00451 Page 5
U.S.C.C.A.N.
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Slip Op. 16-84
UNITED STATES COURT OF INTERNATIONAL TRADE
ALBEMARLE CORP.,
Plaintiff,
and
NINGXIA HUAHUI ACTIVATED CARBON CO., LTD.,
Plaintiff-Intervenor, Before: Timothy C. Stanceu, Chief Judge v. Consol. Court No. 11-00451 UNITED STATES,
Defendant,
CALGON CARBON (TIANJIN) CO., LTD., CALGON CARBON CORP. AND NORIT AMERICAS INC.,
Defendant-Intervenors.
OPINION AND ORDER
[Instructing the U.S. Department of Commerce in response to a mandate issued by the U.S. Court of Appeals for the Federal Circuit]
Dated: September 7, 2016
Jeffrey S. Grimson, Mowry & Grimson, PLLC, of Washington, DC, for plaintiff Albemarle Corp. and plaintiff-intervenor Ningxia Huahui Activated Carbon Co., Ltd. With him on the brief were Kristin H. Mowry, Jill A. Cramer, and Sarah M. Wyss.
Gregory S. Menegaz, deKieffer & Horgan, PLLC, of Washington, DC, for plaintiff Shanxi DMD Corp. With him on the brief were John J. Kenkel and J. Kevin Horgan.
Francis J. Sailer, Grunfeld, Desiderio, Lebowitz, Silverman & Klestadt LLP, of Washington, DC, for plaintiffs Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd., Consol. Court No. 11-00451 Page 2
Beijing Pacific Activated Carbon Products Co., Ltd. and Cherishmet Inc. With him on the brief were Mark E. Pardo, Andrew T. Schutz, and Kavita Mohan.
Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for defendant. With her on the brief were Stuart F. Delery, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Devin S. Sikes, Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce, of Washington, DC.
Craig A. Lewis, Hogan Lovells U.S. LLP, of Washington, DC, for defendant-intervenor Calgon Carbon (Tianjin) Co., Ltd.
David A. Hartquist, Kelley Drye & Warren LLP, of Washington, DC, for defendant-intervenors Calgon Carbon Corp. and Norit Americas Inc. With him on the brief were R. Alan Luberda and John M. Herrmann II.
Stanceu, Chief Judge: Before the court is the mandate issued by the United States Court
of Appeals for the Federal Circuit (“Court of Appeals”) in Albemarle Corp. & Subsidiaries v.
United States, 821 F.3d 1345 (Fed. Cir. 2016) (“Albemarle III”). CAFC Mandate in Appeal Nos.
2015-1288, 2015-1289, and 2015-1290 (June 23, 2016), ECF No. 130. This decision affirmed in
part, and vacated in part, the judgment of the United States Court of International Trade (“CIT”)
in Albemarle Corp. v United States, 38 CIT __, 27 F. Supp. 3d 1336 (2014) (“Albemarle II”). To
implement the mandate of the Court of Appeals, the court issues instructions to the International
Trade Administration, United States Department of Commerce (“Commerce” or the
“Department”).
I. BACKGROUND
In this consolidated case, several plaintiffs contested the final determination (“Final
Results”) Commerce issued to conclude the third periodic administrative review of an
antidumping duty order on activated charcoal from the People’s Republic of China. The
contested decision was published as Certain Activated Carbon from the People’s Republic of
China: Final Results and Partial Rescission of Third Antidumping Duty Administrative Review, Consol. Court No. 11-00451 Page 3
76 Fed. Reg. 67,142 (Int’l Trade Admin. Oct. 31, 2011) (“Final Results”). Background on this
case is presented in the opinions in Albemarle III, 821 F.3d at 1347-51, Albemarle II, 38 CIT at
__, 27 F. Supp. 3d at 1339-40, and Albemarle Corp. v United States, 37 CIT __, __, 931 F. Supp.
2d 1280, 1283-84 (2013) (“Albemarle I”).
The remaining issue in this litigation is the antidumping duty margin to be assigned to
Ningxia Huahui Activated Carbon Company Ltd. (“Huahui”), which was a “separate rate,” i.e.,
non-individually-examined, respondent in the third administrative review, at the conclusion of
which Commerce assigned de minimis margins to the two mandatory respondents. In the Final
Results, Commerce assigned Huahui the $0.44/kg margin it had assigned Huahui as an
individually-examined respondent in the prior, i.e., the second, administrative review. Final
Results, 76 Fed. Reg. at 67,145. Commerce assigned all other separate rate respondents a margin
of $0.28/kg, which was the margin Commerce had assigned to separate rate respondents in the
second review. Id.
In Albemarle I, the Court of International Trade ordered Commerce to reconsider its
assignment of the $0.28/kg margin to the separate rate respondents. Albemarle I, 37 CIT at __,
931 F. Supp. 2d at 1296-97. Pending a remand redetermination by Commerce, the CIT reserved
any decision on whether the $0.44/kg margin Commerce assigned to Huahui in the Final Results
was permissible, reasoning that “Commerce may or may not decide to assign Huahui a different
margin based on other decisions it makes upon remand.” Id., 37 CIT at __, 931 F. Supp. 2d
at 1293.
In the determination responding to the order the Court of International Trade issued in
Albemarle I, Commerce again determined de minimis margins for the two mandatory
respondents. Final Results of Redetermination Pursuant to Court Remand, at 25 (Jan. 10, 2014), Consol. Court No. 11-00451 Page 4
ECF No. 96. Based on those de minimis margins, and under protest, Commerce assigned
margins of zero to the parties other than Huahui who were separate rate respondents in the third
review. Id. at 13, 25. Commerce “decline[d] to reconsider Huahui’s dumping margin” and
thereby continued to assign the $0.44/kg margin to Huahui. Id. at 22.
The Court of International Trade sustained the Department’s assigning zero margins to
the separate rate respondents other than Huahui as well as the assignment of the $0.44/kg margin
to Huahui. Albemarle II, 38 CIT at __, 27 F. Supp. 3d at 1352. On appeal, the Court of Appeals
affirmed the judgment as to the zero margins and reversed the judgment as to the $0.44/kg
margin. The Court of Appeals remanded this case to the Court of International Trade “so that it
may issue appropriate instructions to Commerce” on the question of the margin to be assigned to
Huahui. Albemarle III, 821 F.3d at 1359. This opinion sets forth the instructions to effectuate
the decision of the Court of Appeals.
II. DISCUSSION
In reviewing the CIT’s affirmance of the $0.44/kg margin assigned to Huahui, the Court
of Appeals considered the question of “whether Commerce’s chosen method of carrying forward
Huahui’s data from the second period of review to the third was reasonable.” Albemarle III,
821 F.3d at 1355-56. Albemarle II had noted that the $0.44/kg margin was based on Huahui’s
own data in the prior review and, in deciding that this method was reasonable, had concluded
that Commerce acted permissibly in choosing specificity over contemporaneity. Albemarle II,
38 CIT at __, 27 F. Supp. 3d at 1348-50.
Reaching the opposite conclusion, the Court of Appeals relied upon 19 U.S.C.
§ 1677d(c)(5)(B) and the Statement of Administrative Action accompanying the Uruguay Round
Agreements Act, H.R. Rep. No. 103-316, vol. 1 at 873 (1994) reprinted in 1994 Consol. Court No. 11-00451 Page 5
U.S.C.C.A.N. 4040, 4021, for the principle that, “when all individually examined respondents
are assigned de minimis margins,” an averaging of the de minimis margins of the individually
examined respondents is the “preferred” and “expected method” for determining a margin for the
respondents that were not individually examined. Albemarle III, 821 F.3d at 1352, 1354. The
appellate court stated, further, that it was “guided by the statute’s manifest preference for
contemporaneity in periodic administrative reviews,” opining that “[t]here is no basis to simply
assume that the underlying facts or calculated dumping margins remain the same from period to
period.” Id., 821 F.3d at 1356. Citing the “established doctrine” that Commerce is expected to
use current information when conducting an administrative review, the Court of Appeals
concluded that “it is not open to Commerce to argue that prior review data is reliable simply
because it is ‘temporally proximate.’” Id., 821 F.3d at 1357 (citation omitted). Further, the
appellate court noted that “Huahui specifically requested leave to be individually examined as a
voluntary respondent under 19 U.S.C. § 1677m(a), or alternatively to submit additional
supplementary data, but Commerce denied both requests.” Id., 821 F.3d at 1358. The Court of
Appeals concluded that “[i]t was unreasonable in this case for Commerce to choose to limit its
review to the two largest volume exporters, refuse to collect additional data from Huahui, and
then draw inferences adverse to Huahui based on the lack of data available in the record.” Id.
(citing Albemarle I, 37 CIT at __, 931 F. Supp. 2d at 1293).
III. CONCLUSION AND ORDER
To fulfill the mandate of Albemarle III that the Court of International Trade “issue
appropriate instructions to Commerce,” id., 821 F.3d at 1359, the court is guided, as it must be,
by the holding the Court of Appeals stated in its opinion. As to the $0.44/kg margin Commerce
applied to Huahui, the Court of Appeals succinctly expressed that holding as follows: “We hold Consol. Court No. 11-00451 Page 6
that Commerce could not on this record utilize data from the previous review.” Id. “Rather,
Commerce, having declined to collect additional information, was required to follow the
‘expected method’ of utilizing the de minimis margins of the individually examined respondents
from the contemporaneous period.” Id. The court considers the appropriate instructions to be
that Commerce redetermine a margin for Huahui in accordance with the holding of the Court of
Appeals in Albemarle III.
Therefore, upon consideration of the decision of the Court of Appeals in Albemarle III,
and upon due deliberation, it is hereby
ORDERED that Commerce submit to the Court of International Trade a second remand redetermination in which it assigns to Huahui a dumping margin that is in accordance with the holding of the Court of Appeals in Albemarle III; it is further
ORDERED that Commerce shall file its second remand redetermination with the court within forty-five (45) days from the date of this Opinion and Order; and it is further
ORDERED that plaintiffs and defendant-intervenors shall have thirty (30) days from the date on which the second remand redetermination is filed with the court to file comments thereon; and it is further
ORDERED that defendant may file a response to the submitted comments within fifteen (15) days of the date upon which the last comment is filed.
/s/ Timothy C. Stanceu Timothy C. Stanceu Chief Judge
Dated: September 7, 2016 New York, New York