Respondent Can't Exhaust Admin Remedies If No Chance to Reply, Chinese Exporter Argues
Chinese exporter Jilin Bright Future Chemicals did not exhaust its administrative remedies in challenging calculations in an administrative review on activated carbon from China, but it can still raise an issue with the calculations because Commerce didn't finalize its methodology until the final results, the company argued in its Oct. 24 reply brief at the Court of International Trade (Jilin Bright Future Chemicals Co. v. U.S., CIT # 22-00336).
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Specifically, Jilin Bright said that it may still challenge Commerce's formula for calculating the calorific value limit of the company's bituminous coal. Commerce didn't determine to use a specific formula until its decision in the final results, giving Jilin Bright no opportunity to challenge Commerce’s chosen formula at the administrative level.
Although the petitioners suggested Commerce use the "gross calorific value" (GVC) measurement during the review, Commerce said at the time it needed additional info before it adopted that methodology. In fact, Commerce instructed Jilin Bright to use a different equation, the "useful heat value" (UHV) in its questionnaire responses, instead of the GCV it used in the final results.
In those results, Commerce, for the first time, rejected Jilin Bright's argument that the heat value should be calculated by "net calorific value" (NCV) and used GCV without giving the exporter a chance to respond. Jilin Bright argued that Commerce's use of GCV at the last minute means that the exhaustion doctrine doesn't prevent it from raising the claim in court, as it has done here.
In addition, Jiling Bright continued to argue that Commerce's selection of surrogate values based on Malaysian import data for Jilin Bright's coal was incorrect, saying that Commerce relied upon "aberrational" Malaysian import data that wasn't product specific.