Aberrational Data Not Enough to Scrap Surrogate Country in AD Review, Commerce Says

Aberrational Malaysian surrogate data is not enough to discard its use in favor of Romanian data in an antidumping duty administrative review, the Commerce Department said in an Aug. 30 reply brief. Responding to comments from the plaintiffs in the case over Commerce's remand, the agency also held that the determination should be upheld since the plaintiffs provided no evidence beyond the aberrancy of parts of the Malaysian data (Carbon Activated Tianjin Co., Ltd., et al. v. United States, CIT #20-00007).

The case stems from the 11th administrative review of the antidumping duty order on activated carbon from China wherein plaintiff Carbon Activated Tianjin Co. served as a mandatory respondent. Initially, Commerce relied on Malaysia as its surrogate country and used a financial statement from a Romanian company, Romcarbon, to calculate the surrogate financial ratios. In the final results, the agency continued to do both of these things, but also declared that Romania is not a significant producer of comparable merchandise (see 2107010079). In April, Chief Judge Mark Barnett remanded parts of these results to Commerce, finding that the agency needed to further explain its finding that Romania is not a significant producer.

In the remand results, Commerce reversed course, declaring Romania a significant producer, but continuing to rely on Malaysia as the main surrogate and using the financial statement from Romcarbon. In response, the plaintiffs argued that it is precisely this reversal and finding that Romania is a significant producer of activated carbon that should lead Commerce to pick Romania as the surrogate nation (see 2108040078). Given this determination, the deciding factor between the two countries boils down to data considerations where Romania is superior, the plaintiffs said.

Commerce fought back on Carbon Activated's argument that the lack of usable data for some of the Malaysian bituminous coal input results in Romania being the more "appropriate" choice. The agency gave six reasons for this contention: (1) this aberrancy is based on "limited import volume and lack of historical data," and thus not enough to discard Malaysia, (2) Commerce substituted in data from a Romanian supplier for the aberrant data, (3) Carbon Activated gave no evidence beyond the aberrant data for tossing Malaysia as the surrogate country, (4) the Romanian coal data isn't as specific to the period of review, (5) the control numbers reported by the Romanian supplier makes up only a small percentage of the overall volume of activated carbon and (6) Carbon Activated hasn't established that the law or the record "(i) precluded valuing differently the bituminous coal with known and unknown inputs, or (ii) compelled averaging of available data."