POGUE, Chief Judge:
This action returns to court following the remand ordered by Trust Chem. Co. v. United States, ___ CIT ___, 791 F.Supp.2d 1257 (2011) ("Trust Chem I"). Trust Chem I required that the Department of Commerce ("Commerce" or "the Department") reconsider data it had selected to value the nitric acid used to produce Plaintiff's merchandise.
In Commerce's Final Results of Redetermination Pursuant to Court Remand, ECF No. 51("Remand Results"), the Department continues to value nitric acid using the data selected prior to the court's remand order. Plaintiff again challenges Commerce's data selection.
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c)and § 516A(a)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2) (2006).
As explained below, the court concludes that, on the basis of the record here, a reasonable mind could find that Commerce's choice constitutes the best data available. Commerce's Remand Results are therefore affirmed.
Facts necessary to the disposition of the Remand Results are the following:
The data at issue comes from the World Trade Atlas ("WTA data").
Plaintiff sought review of Commerce's choice, arguing that: (A) alternative data it proposed was more specific to, and hence more representative of, the nitric acid used in producing its merchandise, and (B) the WTA data was aberrational or unrepresentative.
In Trust Chem I, the court affirmed Commerce's rejection of Plaintiff's specificity claim. Although the record indicated that "`high' strength 98 percent nitric acid [was] used in the production of Trust Chem's merchandise[,]" Trust Chem I at 1262, and that "weak" and "high strength" nitric acid had different values, it did not establish the concentration level of the nitric acid for the values proposed by any party.
Trust Chem I at 1268 n. 28.
On remand, Commerce re-opened the record, but Plaintiff chose not to submit evidence that would demonstrate the relationship between prices and concentration levels for nitric acid. Remand Results at 23 ("Trust Chem was free to place information on the record regarding nitric acid prices and concentration levels, but chose not to.").
For its part, Commerce placed historical WTA data on the remand record (December 2003-November 2008) for India and other potential surrogate countries, and issued a letter requesting comments from the parties. This historical data showed a wide variation in the value of nitric acid for imports into the different countries.
Remand Results at 11.
Considering these alternatives, Commerce decided that "the WTA AUV used in the Final Results appears to be consistent with the higher price range one would expect for 98 percent nitric acid." Department of Commerce Draft Results of Redetermination Pursuant to Court Remand Carbazole Violet Pigment 23 from the People's Republic of China, Remand Admin. Pub. Doc. 9 at 14 ("Draft Remand Results"); see also Remand Results at 26 ("For the reasons stated above, the Department has not made any changes to its Draft Remand Results").
Commerce acknowledged that the record did not contain "specific evidence to demonstrate the actual concentration(s) of nitric acid imported into India and the other potential surrogate countries." Id. at 13. Commerce reasoned, however, that:
Id. at 14 (citations omitted).
To corroborate its analysis, Commerce also:
Remand Results at 24-25.
In addition, the Department determined that the Indian WTA value for nitric acid was not aberrational as it was stable over the five-year period examined. Remand Results at 14.
As noted above, Plaintiff now challenges Commerce's remand determination.
Under the court's familiar standard of review, the Department must, in its remand redetermination, comply with the terms of the court's remand order. Jinan Yipin Corp. v. United States, ___ CIT ___, 637 F.Supp.2d 1183, 1185 (2009). In addition, 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." 19 U.S.C. § 1516a(b)(1)(B)(i); Koyo Seiko Co. v. United States, 20 F.3d 1160, 1164 (Fed.Cir. 1994).
Plaintiff presents four objections to Commerce's Remand Results, claiming that A) they are not responsive to the remand order; B) they are not supported by substantial evidence; C) they improperly rely on U.S. nitric acid prices; and D) they produce absurd results. Pl.'s Cmts. to Commerce's Redetermination Pursuant to Remand 1-12, Dec. 19, 2011, ECF No. 54 ("Pl.'s Cmts."). The court will consider each objection in turn.
Plaintiff argues that Commerce failed to comply with the remand order, and a second remand is necessary, because the remand results continue to lack usable surrogate value information that is specific to Trust Chem's supplier's nitric acid. Pl.'s Cmts. at 2.
But Plaintiff has only itself to blame for the weaknesses in the record—it was Plaintiff that failed to adequately respond to Commerce's decision to re-open the record. See QVD Food Co. v. United States, 658 F.3d 1318, 1324 (Fed.Cir.2011) ("Although Commerce has authority to place documents in the administrative record that it deems relevant, `the burden of creating an adequate record lies with [interested parties] and not with Commerce.'" (alteration in original) (quoting Tianjin Mach. Imp. & Exp. Corp. v. United States, 16 CIT 931, 936, 806 F.Supp. 1008, 1015 (1992))). Commerce is not required to find all conceivable data in order to comply with the law. Makita Corp. v. United States, 21 CIT 734, 753, 974 F.Supp. 770, 787 (1997). Def.'s Resp. to Pl.'s Cmts. Regarding the Remand Redetermination 7, ECF No. 58 ("Def.'s Resp."). Having reopened the record, Commerce's responsibility was to choose the best available information from the record. The remand order did not require otherwise. Thus, Plaintiff's objection does not provide a basis to reverse Commerce's choice.
As long as Commerce takes the record evidence into account and provides an adequate explanation of its reasonable determination, it does not fail the substantial evidence standard just because there exists evidence that detracts from Commerce's
Here, Commerce conceded both that the record evidence was imperfect and that the record revealed wide variation in potential surrogate values. Nonetheless, Commerce gave a reasonable explanation as to why other surrogate values were not appropriate for this matter and how the surrogate value it selected fit into the historical data scheme. Def.'s Resp. at 13-14. Commerce deduced that because the other potential surrogate countries have lower AUVs than India's, but larger monthly import quantities, the numbers are consistent with India's using higher Court No. 10-00214 Page 11 strength nitric acid like that used to purchase Plaintiff's merchandise,
Plaintiff next contends that Commerce improperly used the U.S. price quotes submitted by Petitioners as benchmarks, directly contradicting Commerce's initial refusal to use U.S. benchmarks during the administrative review. Pl.'s Cmts. at 9. Plaintiff adds that Commerce is now comparing import statistics with a non-contemporaneous U.S. price list. Id. at 10.
Commerce acknowledges that the Petitioners submitted data with U.S. prices not specific to the POR. Nonetheless, Petitioners' publicly-available price list shows that higher strength nitric acid sells for much higher prices than the weaker nitric acid. Pet'rs' Cmts. at Attach. B, Ex. 2. Commerce considered this data for a "measure of how the concentration level of nitric acid affects price[,]" rather than as a benchmark for the price selected. Remand Results at 14 n. 9.
Moreover, the record clearly indicates that lower import values with larger import quantities represent lower purity levels and higher values with smaller quantities reflect higher purity levels. Remand Results at 13-14, 18; Pet'rs' Rebuttal Cmts., Remand Admin. R. Pub. Doc. 11 at 3. See Lifestyle Enterprise, Inc. v. United
As we explained in Trust Chem I, "there is no statutory prohibition on using U.S. or other market economy data to corroborate record evidence." Trust Chem I at 1266 (citing Peer Bearing Co.-Changshan v. United States, ___ CIT ___, 752 F.Supp.2d 1353 at 1372 (2011)).
Finally, Plaintiff argues that a nitric acid price of $10,474 USD/MT is "patently absurd" because, in fact, low-strength nitric acid is actually used to produce the subject merchandise. Seeking to supplement the record evidence on this issue, Plaintiff now claims that its supplier diluted the 96-98% strength nitric acid that it purchased to create 38% strength nitric acid that was then used to produce the subject merchandise. Pl.'s Cmts. at 12; Trust Chem's July 31, 2009 Supp. Resp., Original Admin. R. Pub. Doc. 18 at 17, 24, App. S1-29, S1-33. Plaintiff asserts that the only reason a supplier would do this would be to save costs by transporting the small amounts of high strength nitric acid and minimizing water shipping costs. Pl.'s Cmts. at 12-13. Plaintiff thus claims that ultimately the surrogate value used for 96-98% nitric acid must be adjusted to reflect the 38% concentration of nitric acid used to produce the subject merchandise. Pl.'s Cmts. at 13.
Commerce and Petitioners correctly respond that because Plaintiff raises this issue for the first time here, after remand, Plaintiff has failed to exhaust its administrative remedies below. See 28 U.S.C. § 2637(d) ("In any civil action not specified in this section, the Court of International Trade shall, where appropriate, require the exhaustion of administrative remedies.").
It is axiomatic that, to preserve Commerce's authority and judicial efficiency, a party, where appropriate, must present its arguments to the agency before bringing them to this court. Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed.Cir.2007). Commerce must first have an opportunity to consider the issue and give a reasoned response to it. Gerber Food (Yunnan) Co. v. United States, ___ CIT ___, 601 F.Supp.2d 1370, 1379 (2009). Because of the length of time this matter has been under consideration, requiring exhaustion is particularly appropriate here.
Plaintiff failed to provide Commerce the opportunity to address this issue. Clearon Corp. v. United States, ___ CIT ___, 800 F.Supp.2d 1355, 1361-63 (2011) ("Plaintiffs unfortunately did not present these arguments to Commerce when they had the opportunity"). Therefore, we decline to hear Plaintiff's argument on its supplier's shipping methodology. Def.'s Resp. at 22.
Commerce's duty, as emphasized by Trust Chem I, is to compare the data on the record and provide an explanation that considers the important aspects of the
Here Commerce complied with the court's remand instructions and gave a reasonable explanation that due to production and transportation costs and different pricing schemes for different concentrations of nitric acid, using the WTA data was appropriate on this administrative record. While it is more than unfortunate that the parties did not create a better record on the main issue presented, our review is based on this record.
Therefore, for the reasons discussed above, Commerce's Remand Results will be AFFIRMED. Judgment will be entered accordingly. IT IS
Within certain statutory limitations, Commerce, using criteria established by regulation and practice, selects specific surrogate values in each individual administrative proceeding, by choosing the "best available information[.]" 19 U.S.C. § 1677b(c)(1)(B).
Remand Results at 6.