Respondent Asks CAFC Panel to Rehear Surrogate Value Issue in AD Review
Respondent Carbon Activated Tianjin asked the U.S. Court of Appeals for the Federal Circuit on June 23 to rehear its antidumping duty case, arguing that a three-judge panel committed "legal error" by affirming the Commerce Department's selection of the surrogate value for carbonized material. Carbon Activated said the panel also erred in "misapprehending key distinctions between the administrative record" of the 2018-19 AD review on Chinese activated carbon and the records of prior reviews (Carbon Activated Tianjin v. United States, Fed. Cir. # 23-2135).
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"It was legal error for the panel to conclude that Commerce may resort to its methodology from these prior administrative reviews given the differences in evidentiary records," the brief said.
In the 2018-19 review, Carbon Activated challenged Commerce's use of Malaysian import data under Malaysian tariff schedule subheading 4402.90.1000, which covers coconut-shell charcoal, as the surrogate value for coal-based carbonized material, an input of activated carbon. Carbon Activated said Malaysian import data for subheading 4402.90, which covers "wood charcoal (including shell or nut charcoal), excluding that of bamboo," is superior.
The respondent argued at the appeals court that Commerce's contention that there's a long history in reviews of this AD order of using coconut-shell carbonized material, unlike wood carbonized material, which has never been used to make the subject merchandise. The appellate court rejected Carbon Activated's claims, finding "no error" in the agency's reliance on evidence related to the activation process used to make activated carbon and declaring that Commerce has broad discretion to determine what amounts to the best available information (see 2505090048).
Seeking a panel rehearing, the respondent said the panel "declined to address the significance of the fact that" the surrogate value selection was premised on the "incorrect finding" that there was a long history in the proceeding of using coconut-shell carbonized material in the production of the subject merchandise, unlike wood carbonized material, which has never been used to make the subject merchandise. Instead, the panel said that even if the respondent is correct, "the result is not changed." The court said Commerce found "coconut shell charcoal to be the best available information with which to value mandatory respondents' coal-based" carbonized material based on the "reported product specifications."
Carbon Activated said this conclusion is "erroneous," since it cited excerpts from three of the agency's prior AD reviews. Past AD reviews "are not factual evidence, and the record evidence Commerce relied upon in reaching those determinations is not relevant to the respondents in" the present review and "not on the record" of the present review, the brief said.
The panel also overlooked that the Federal Circuit has previously held that each AD review is a "separate exercise of Commerce’s authority that allows for different conclusions based on different facts in the record." A methodology reasonable in a previous review "may be unsupported in a later review with different facts."