CAFC Denies Rehearing Bid Regarding Surrogate Value Issue in AD Review
The U.S. Court of Appeals for the Federal Circuit on July 10 denied exporter Carbon Activated's bid for a panel rehearing of its antidumping duty case on the Commerce Department's selection of the surrogate value for carbonized material in the 2018-19 review of the AD order on Chinese activated carbon. Judges Richard Taranto, Alvin Schall and Raymond Chen denied the request (Carbon Activated Tianjin v. United States, Fed. Cir. # 23-2135).
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In the 2018-19 administrative 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 CAFC 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, is incorrect. It said that in each past review, the respondents reported using coal-based carbonized materials to make their 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).
Carbon Activated sought a panel rehearing of the decision, arguing that the court committed a "legal error" in failing to address the fact that the surrogate value pick 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.