Slip Op. 19-160
UNITED STATES COURT OF INTERNATIONAL TRADE
JACOBI CARBONS AB AND JACOBI CARBONS, INC.,
Plaintiffs,
and,
NINGXIA HUAHUI ACTIVATED CARBON CO., LTD., ET AL.,
Plaintiff-Intervenors, Before: Mark A. Barnett, Judge Consol. Court No. 16-00185 v.
UNITED STATES,
Defendant,
and,
CALGON CARBON CORPORATION AND CABOT NORIT AMERICAS, INC.,
Defendant-Intervenors.
OPINION AND ORDER
[The U.S. Department of Commerce’s third remand results are remanded with respect to the agency’s surrogate value selection for the value of carbonized material.]
Dated: December 17, 2019
Daniel L. Porter and Tung A. Nguyen, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, DC, for Plaintiffs Jacobi Carbons AB and Jacobi Carbons, Inc.
Gregory S. Menegaz, J. Kevin Horgan, and Alexandra H. Salzman, DeKieffer & Horgan, PLLC, of Washington, DC, for Plaintiff-Intervenors Carbon Activated Corporation, Ningxia Mineral and Chemical Ltd., Shanxi DMD Corporation, Shanxi Industry Technology Trading Co., Ltd., Shanxi Sincere Industrial Co., Ltd., Tianjin Channel Filters Co. Ltd., and Tianjin Maijin Industries Co., Ltd. Consol. Court No. 16-00185 Page 2
Mollie L. Finnan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke, Assistant Director. Of counsel on the brief was Emma T. Hunter, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
David A. Hartquist, R. Alan Luberda, John M. Herrmann, and Melissa M. Brewer, Kelley Drye & Warren LLP, of Washington, DC, for Defendant-Intervenors Calgon Carbon Corporation and Cabot Norit Americas, Inc.
Barnett, Judge: This matter is before the court following the U.S. Department of
Commerce’s (“Commerce” or “the agency”) third redetermination upon remand in this
case. See Final Results of Redetermination Pursuant to Court Remand (“Third Remand
Redetermination”), ECF No. 139-1.
Plaintiffs Jacobi Carbons AB and Jacobi Carbons, Inc. (together, “Jacobi”) and
Plaintiff-Intervenors1 (collectively, with Jacobi, “Plaintiffs”) challenged several aspects of
Commerce’s final results in the eighth administrative review of the antidumping duty
order on certain activated carbon from the People’s Republic of China (“PRC” or
“China”). See Certain Activated Carbon From the People’s Republic of China, 81 Fed.
1 Plaintiff-Intervenors include Carbon Activated Corporation, Ningxia Mineral and Chemical Limited, Shanxi DMD Corporation, Shanxi Industry Technology Trading Co., Ltd., Shanxi Sincere Industrial Co., Ltd., Tianjin Channel Filters Co., Ltd., and Tianjin Maijin Industries Co., Ltd. (collectively, “CAC”); Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd., Beijing Pacific Activated Carbon Products Co., Ltd., and Datong Municipal Yunguang Activated Carbon Co., Ltd (collectively, “Cherishmet”); Ningxia Huahui Activated Carbon Co., Ltd. (“NXHH”); and M.L. Ball Co., Ltd., and Jilin Bright Future Chemicals Company, Ltd. (together, “M.L. Ball”). The court consolidated cases filed by CAC, Cherishmet, and M.L. Ball under lead Court No. 16-00185, filed by Jacobi. See Order (Nov. 3, 2016), ECF No. 42. Those parties, along with NXHH, had also intervened in this action. See Order (Oct. 7, 2016), ECF No. 17; Order (Oct. 12, 2016), ECF No. 22; Order (Oct. 20, 2016), ECF No. 36; Order (Oct. 20, 2016), ECF No. 40. Consol. Court No. 16-00185 Page 3
Reg. 62,088 (Dep’t of Commerce Sept. 8, 2016) (final results of antidumping duty
admin. review; 2014-2015) (“Final Results”), ECF No. 44-4,2 and accompanying Issues
and Decision Mem., A-570-904 (Aug. 31, 2016), ECF No. 44-5.
On June 20, 2017, the court granted Commerce’s request for a remand to clarify
or reconsider its findings regarding economic comparability and Thailand’s status as a
significant producer of comparable merchandise based on its export quantity. See
Order (June 20, 2017), ECF No. 77. On September 5, 2017, Commerce issued its first
remand redetermination wherein the agency elaborated on its methodology for
determining which countries are at the same level of economic development as the
PRC and made its significant producer determination based on evidence of domestic
production rather than exports. See Final Results of Redetermination Pursuant to Court
Order (Sept. 5, 2017), ECF No. 78-1. On April 19, 2018, the court sustained
Commerce’s economic comparability determination but remanded the agency’s
determination that Thailand is a significant producer of comparable merchandise. See
2 The administrative record filed in connection with the Final Results is divided into a Public Administrative Record (“PR”), ECF No. 44-3, and a Confidential Administrative Record (“CR”), ECF No. 44-2. The administrative record associated with the Third Remand Redetermination is contained in a Public Remand Record, ECF No. 140-2, and a Confidential Remand Record, ECF No. 140-3. Parties submitted joint appendices containing record documents cited in their remand briefs. See J.A. to Parties’ Comments on Third Remand Redetermination (“3rd PJA”), ECF No. 150; Confidential J.A. to Parties’ Comments on Third Remand Redetermination , ECF No. 151. These appendices supplement the documents previously provided in connection with the agency’s previous determinations in this case. See J.A. to Parties’ Comments on Second Remand Redetermination (“2nd PJA”), ECF No. 133; Confidential Suppl. App. to Comments on Second Remand Redetermination, ECF No. 135; Public J.A. (“1st PJA”), ECF No. 92; Confidential J.A., ECF No. 91. Consol. Court No. 16-00185 Page 4
Jacobi Carbons AB v. United States (“Jacobi (AR8) I”), 42 CIT ___, 313 F. Supp. 3d
1344 (2018).3
On October 24, 2018, Commerce filed the results of its second remand
redetermination. See Final Results of Redetermination Pursuant to Court Remand,
ECF No. 124-1. Therein, relevant to this discussion, Commerce again found that
Thailand is a significant producer of comparable merchandise, see id. at 4–7; and
further explained its selection of Thai surrogate values for carbonized material and
hydrochloric acid, see id. at 8–15. On March 5, 2019, the court sustained some aspects
of Commerce’s determination but remanded Commerce’s selection of Thailand as the
primary surrogate country based on the lack of substantial evidence supporting
Commerce’s determination that Thailand was a significant producer of comparable
merchandise. See Jacobi (AR8) II, 365 F. Supp. 3d at 1351–53, 1358–63. The court
instructed Commerce to select a country that meets that statutory criteria for a surrogate
country (i.e., that is economically comparable to the subject nonmarket economy
country and a significant producer of comparable merchandise pursuant to 19 U.S.C. §
1677b(c)(4), and, for those for inputs that Commerce valued using Thai data, to revisit
its selection of surrogate values. Id. at 1353.
3 Jacobi (AR8) I and Jacobi Carbons AB v. United States (“Jacobi (AR8) II”), 43 CIT ___, 365 F. Supp. 3d 1344 (2019) present background information on this case; familiarity with these cases is presumed. Consol. Court No. 16-00185 Page 5
On June 17, 2019, Commerce filed the remand results at issue. See Third
Remand Redetermination. Therein, under respectful protest,4 Commerce determined
that the Philippines and Malaysia were at a comparable level of economic development
as China and significant producers of comparable merchandise. Id. at 2, 5–10 & n.7
(citation omitted). Commerce concluded that both countries were potential primary
surrogate countries for valuing Jacobi’s factors of production (“FOP”) for this review.
See id. at 10. Commerce selected Malaysia as the primary surrogate country and used
Malaysian data to value the factors of production with the exceptions of the surrogate
values for financial ratios and carbonized material, for which Commerce selected
Philippine data. See id. at 12, 15–16, 23–24.
Defendant-Intervenors Calgon Carbon Corporation and Cabot Norit Americas,
Inc. (together, “Calgon Carbon”) filed comments opposing the Third Remand
Redetermination with respect to Commerce’s selection of the Philippine Cocommunity
data as the surrogate value for carbonized material. Def.-Ints.’ Comments in Opp’n to
Third Remand Redetermination (“Def.-Ints.’ Opp’n Cmts.”), ECF No. 141. Plaintiffs filed
comments opposing Commerce’s selection of the Malaysian data as surrogate values
for coal tar and bituminous coal. Jacobi’s Comments on Commerce’s Third Remand
Redetermination (“Jacobi’s Opp’n Cmts.”), ECF No. 142; Consolidated Pls. Carbon
Activated Corporation, Ningxia Mineral and Chemical Limited, Shanxi DMD Corporation,
Shanxi Industry Technology Trading Co., Ltd., Shanxi Sincere Industrial Co., Ltd.,
4 By making the determination under protest, Commerce preserves its right to appeal. See Meridian Prods. v. United States, 890 F.3d 1272, 1276 n.3 (Fed. Cir. 2018) (citing Viraj Grp., Ltd. v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003)). Consol. Court No. 16-00185 Page 6
Tianjin Channel Filters Co., Ltd., and Tianjin Maijin Industries Co., Ltd., Comments in
Opp’n to U.S. Dep’t Of Commerce’s Third Remand Redetermination (“CAC’s Opp’n
Cmts.”), ECF No. 143.
Plaintiffs also filed comments in support of Commerce’s selection of the
Cocommunity data to value carbonized material. Jacobi’s Comments in Supp. of
Certain Aspect of Commerce’s Third Remand Determination (“Jacobi’s Supp. Cmts.”),
ECF No. 145; Consolidated Pls. Carbon Activated Corporation, Ningxia Mineral and
Chemical Limited, Shanxi DMD Corporation, Shanxi Industry Technology Trading Co.,
Ltd., Shanxi Sincere Industrial Co., Ltd., Tianjin Channel Filters Co., Ltd., and Tianjin
Maijin Industries Co., Ltd., Resp. Comments in Supp. of U.S. Dep’t of Commerce’s
Third Remand Redetermination (“CAC’s Supp. Cmts.”), ECF No. 146.
Defendant United States (“the Government”) filed comments in support of
Commerce’s decision. Def.’s Resp. to Comments on the Third Remand
Redetermination (“Gov’t’s Resp.”), ECF No. 147. Calgon Carbon also filed comments
supporting Commerce’s reliance on the Malaysian data to value coal tar and bituminous
coal. Def.-Ints.’ Comments in Supp. of the Dep’t of Commerce’s Third Remand
Redetermination (“Def.-Ints.’ Supp. Cmts.”), ECF No. 148.
For the following reasons, the court remands Commerce’s surrogate value
selection with respect to carbonized material. The court sustains Commerce’s reliance
on Malaysian data to value coal tar and bituminous coal. Consol. Court No. 16-00185 Page 7
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930,
as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii)(2012),5 and 28 U.S.C. § 1581(c)(2012).
The court will uphold an agency determination that is supported by substantial
evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). “The
results of a redetermination pursuant to court remand are also reviewed for compliance
with the court’s remand order.” SolarWorld Ams., Inc. v. United States, 41 CIT ___,
___, 273 F. Supp. 3d 1314, 1317 (2017) (internal quotation marks and citation omitted).
DISCUSSION
An antidumping duty is “the amount by which the normal value exceeds the
export price (or the constructed export price) for the merchandise.” 19 U.S.C. § 1673.
When an antidumping duty proceeding involves a nonmarket economy country,
Commerce determines normal value by valuing the factors of production6 in a surrogate
country, see id. § 1677b(c)(1), and those values are referred to as “surrogate values.”
In selecting surrogate values, Commerce must use “the best available information” that
is, “to the extent possible,” from a market economy country or countries that are
economically comparable to the nonmarket economy country and “significant producers
of comparable merchandise.” Id. § 1677b(c)(1), (4). In selecting its surrogate values,
5 All citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, and all references to the United States Code are to the 2012 edition, unless otherwise stated. 6 The factors of production include but are not limited to: “(A) hours of labor required, (B) quantities of raw materials employed, (C) amounts of energy and other utilities consumed, and (D) representative capital cost, including depreciation.” 19 U.S.C. § 1677b(c)(3). Consol. Court No. 16-00185 Page 8
Commerce generally prefers publicly-available, “non-proprietary information gathered
from producers of identical or comparable merchandise in the surrogate country.” 19
C.F.R. § 351.408(c)(1), (4).
The phrase “best available information” is not defined in the statute,
consequently, Commerce has broad discretion to determine what value(s) satisfy that
requirement. See, e.g., QVD Food Co., Ltd. v. United States, 658 F.3d 1318, 1323
(Fed. Cir. 2011). In making its selection, Commerce is not required to duplicate the
precise experience of the manufacturer in the non-market economy country, but instead
must identify the surrogate value that “most accurately represents the fair market value”
of the relevant factor of production. Nation Ford Chem. Co. v. United States, 166 F.3d
1373, 1377 (citation and internal quotation marks omitted).
I. Carbonized Material
A. Commerce’s Determination
Initially, Commerce found that “both Malaysia and the Philippines provide equally
viable [surrogate values].” Third Remand Redetermination at 11. Commerce chose
Malaysia as the primary surrogate country, in part, because it “offers the best available
information to value Jacobi’s . . . carbonized materials.” Id. at 12. Commerce then
explained that the Malaysian surrogate data for carbonized material are based on an
import quantity (11.1 metric tons (“MT”)), which is not a commercially significant
amount. Id. at 15. Therefore, Commerce also states that it selected data from the
Philippine industry publication Cocommunity to value Jacobi’s carbonized material.
Third Remand Redetermination at 15–16; see also Commerce’s Final Surrogate Values Consol. Court No. 16-00185 Page 9
for Third Remand Redetermination (June 17, 2019) (“Commerce’s SV Mem.”) at 2,
Attach. 1, PR 15–16, 3rd PJA Tab 11.
B. Parties’ Contentions
Calgon Carbon contends that Commerce’s selection of the Philippine
Cocommunity data to value carbonized material is not supported by substantial
evidence because: (1) the Malaysian data is more representative of the type of
carbonized material that Jacobi’s suppliers consume (i.e. coconut shell charcoal); (2)
Commerce did not adequately explain why the Malaysian import quantity is not
commercially significant; (3) citing Luoyang Bearing Corp. (Grp.) v. United States, 29
CIT 24, 358 F. Supp. 2d 1296 (2005), Commerce failed to consider whether the per-unit
value of the Malaysian imports of carbonized material substantially differs from the per-
unit values of carbonized material from larger-import-quantity countries; and (4) in
selecting the Cocommunity data as the surrogate value, Commerce failed to adequately
explain its deviation from its regulatory preference of selecting surrogate values from a
single country. Def.-Ints.’ Opp’n Cmts. at 5–15.
The Government contends that Commerce addressed whether the Malaysian
data are based on a commercially significant import quantity, having initially selected
Malaysian data in its Draft Third Remand Redetermination and then rejected the data in
its final results. Gov’t’s Resp. at 15 (referencing Draft Results of Redetermination
Pursuant to Court Remand (May 7, 2019), PR 2, 3rd PJA Tab 10; Third Remand
Redetermination at 13–16). Consol. Court No. 16-00185 Page 10
C. Commerce’s Valuation of Carbonized Material Must Be Remanded for Clarification
Commerce’s surrogate value selection for carbonized material must be
remanded for further explanation by the agency. It is difficult to discern clearly the
agency’s reasoning as a result of internal inconsistencies evident on the face of the
Third Remand Redetermination with respect to the surrogate value selected for
carbonized material.
Specifically, in the main discussion regarding surrogate country selection, when
evaluating data availability, Commerce explains that for carbonized materials, both
Malaysia and the Philippines provide “equally viable” surrogate values for carbonized
material. Third Remand Redetermination at 11 (emphasis added). After completing its
review of data availability, Commerce concludes “that Malaysia offers the best available
information to value Jacobi’s FOPs, including carbonized material.” Id. at 12 (emphasis
added). Later in the document, when addressing the parties’ arguments with respect to
the surrogate value for carbonized material, Commerce states that the Malaysian
surrogate data is not reliable (not “commercially significant”), id. at 15, and that it will
use the Philippine Cocommunity data because it is superior (“based on a commercially
significant quantity”), id. at 16. These statements and conclusions are inconsistent with
each other.
While it may well be that these differences are the result of inadequate attention
to full implementation of changes made in the final results, it is for Commerce to resolve
these issues in the first instance. Moreover, requiring Commerce to reconcile these
inconsistencies will allow the agency to address more fully Calgon Carbon’s claims that Consol. Court No. 16-00185 Page 11
Commerce did not directly or fully analyze the commercial significance of the Malaysian
import quantity7 or account for Commerce’s preference for selecting surrogate values
from a single surrogate country, and address its argument based on Luoyang Bearing.
See Def.-Ints.’ Opp’n Cmts. at 5–15.
In light of the inconsistencies in the Third Remand Redetermination and the
agency’s limited reasoning, the court cannot adequately trace the path of the agency’s
reasoning in selecting the surrogate value for carbonized material. See NMB Singapore
Ltd. v. United States, 557 F.3d 1316, 1319 (Fed. Cir. 2009) (“[T]he path of Commerce’s
decision must be reasonably discernable to a reviewing court.”). Therefore, the court
will remand Commerce’s determination with respect to its surrogate value selection for
carbonized material for further explanation, and, if necessary, reconsideration.
II. Coal Tar
A. Commerce’s Determination
As the surrogate value for coal tar, Commerce selected Malaysia data with an
average unit value (“AUV”) of $749.51 per metric ton (“/MT”). See Third Remand
Redetermination at 17–20. In making its selection, Commerce evaluated whether the
Malaysian coal tar data yielded an aberrational price. Third Remand Redetermination
7 The court notes that the Commerce determined that 11.1 MT of carbonized material is not a commercially significant amount because it “far less” than the amount of carbonized material the court “questioned” as commercially significant in Jacobi (AR8) I, 313 F. Supp. 3d at 1362. See Third Remand Redetermination at 15. However, the court came to no conclusion regarding the commercial significance of the Thai quantity of carbonized material, instead noting that Commerce failed to provide an adequate explanation for its finding that this quantity was commercially significant, Jacobi (AR8) I, 313 F. Supp. 3d at 1361–62. Consol. Court No. 16-00185 Page 12
at 18. For benchmarking purposes, Commerce considered data from countries at the
same level of economic development, and data from comparable and non-comparable
countries. Id. at 19. Commerce also compared the Malaysian value to the average of
historical surrogate values for coal tar in previous reviews and to “export prices of
certain countries on the record.”8 Id. at 18–19. Commerce explained that the
Malaysian value is “less than two times more” than the historical average value for coal
tar and “between two to three times more” than the export prices and that these
differences do not establish that the Malaysian value is aberrant. Id. at 19–20.
Commerce declined to rely on South African data for coal tar because South Africa “is
not a significant producer of activated carbon,” and the Malaysian data were reliable.
Id. at 19–20.
B. Parties’ Contentions
Before the court, Plaintiffs argue that the coal tar value is aberrational because it
is significantly higher than (1) the surrogate values for coal tar used in previous
segments of this review, and (2) the average coal tar price from the largest exporters of
tar coal. Jacobi’s Opp’n Cmts. at 2–5 (citing Jacobi’s Surrogate Value Comments
(Sept. 24, 2015) at Exs. SV-4, PR 164, 174,-188, 3rd PJA Tab 2; Jacobi’s Prelim. SV
Cmts. at Ex. SV2-1,); CAC Opp’n Cmts. at 2–5 (same). Therefore, Plaintiffs contend,
8 Those countries and corresponding values are: Austria: $241.41/MT; France: $335.35/MT; Germany: $548.82/MT; Poland: $300.38/MT; and Russia: $336.76/MT. Third Remand Redetermination at 19 & n.88 (citing Jacobi’s Pre-Prelim. Surrogate Value Comments (Jan. 4, 2016) (“Jacobi’s Prelim. SV Cmts.”) at Ex. SV2-19, PR 282, 3rd PJA Tab 12). Consol. Court No. 16-00185 Page 13
Commerce should have selected the South African data as surrogate value. Jacobi’s
Opp’n Cmts. at 5; CAC’s Opp’n Cmts. at 6.
The Government contends that Commerce sufficiently addressed Plaintiffs’
concerns regarding the coal tar value and provided a reasoned analysis for why the
Malaysian value is not aberrational. Gov’t’s Resp. at 5–10; see also Def.-Ints.’ Supp.
Cmts. at 7–9. The Government claims that a value may be aberrant if it is “many times
higher” than the average of the surrogate values of record, but that is not the case here.
Gov’t’s Resp. at 6–7; see also Def.-Ints.’ Supp. Cmts. at 7–8. The Government argues
that Commerce appropriately rejected the South African surrogate value because South
Africa is not a significant producer of activated carbon and the agency had reliable data
from Malaysia. Gov’t’s Resp. at 10–11; see also Def.-Ints.’ Supp. Cmts. at 9.
C. Substantial Evidence Supports Commerce’s Coal Tar Surrogate Value Selection
The court will affirm Commerce’s surrogate value selection for coal tar. In
selecting the Malaysian data to value coal tar, Commerce provided a reasoned analysis,
considering historical values for coal tar used in previous reviews, historical Malaysian
values for coal tar, contemporaneous benchmarking data, and contemporaneous prices
from coal tar exporters.9 Third Remand Redetermination at 18–20. Commerce
9 Additionally, Jacobi’s and CAC’s argument that the coal tar value is aberrant based on comparisons with the export prices fails to consider that “economic comparability and, thus, the usefulness of proffered benchmarks, is a matter of degree.” Jacobi (AR7) II, 313 F. Supp. 3d at 1337 (citations omitted). The GNIs of Germany ($47,640), France ($43,080), Poland ($13,730), and Russia ($13,210) were not at the same or a comparable level of economic development as China ($7,380) during the period of review. See Third Remand Redetermination at 6; Jacobi’s Comments on Economic Comparability (July 20, 2015) at Attach. C, PR 82, 3rd PJA Tab 1; see generally Req. Consol. Court No. 16-00185 Page 14
determined that these values, though noticeably lower than the Malaysian value, did not
require a finding that the Malaysian value was aberrant. Id. And while Plaintiffs argue
that Commerce’s determination is flawed, they have not identified evidence that
Commerce did not consider10 or an error in Commerce’s reasoning. Rather, Plaintiffs
merely disagree with the evidentiary weight Commerce assigned to the differences
between the Malaysian value and other values in the record. “[I]t is not the court’s place
to re-weigh the evidence or to suggest that another alternative was the only appropriate
choice.” JMC Steel Grp. v. United States, 38 CIT ___, ___, 24 F. Supp. 3d 1290, 1313
(2014) (citation omitted); see also Nippon Steel Corp. v. United States, 458 F.3d 1345,
1359 (Fed. Cir. 2006) (“[T]his court, reviewing under the substantial evidence standard,
must defer to the [Commerce].”).
Similarly, the court is not persuaded by Plaintiffs’ argument that Commerce
should have selected the South African data for the surrogate value. Plaintiffs do not
dispute that South Africa is not a significant producer of comparable merchandise. See
Third Remand Redetermination at 9, 19. All other things being equal, Commerce
for Economic Development, Surrogate Country and Surrogate Value Comments and Information (Aug. 7, 2015) at Attach. 1, PR 104, 1st PJA Tab 20 (listing countries at the same level of economic development as China, and not including Germany, France, Poland, or Russia). 10 While Commerce did not explicitly mention the individual historical surrogate values for coal tar in previous reviews, Commerce compared the average of the historical surrogate values to the Malaysian value. Third Remand Redetermination at 19. “[Commerce] need not address every piece of evidence presented by the parties; absent a showing to the contrary, the court presumes that [Commerce] has considered all of the record evidence.” Siemens Energy, Inc. v. United States, 38 CIT ___, ___, 992 F. Supp. 2d 1315, 1324 (2014), aff’d, 806 F.3d 1367 (Fed. Cir. 2015) (citation omitted). Consol. Court No. 16-00185 Page 15
considers data from countries that are significant producers of comparable merchandise
before considering data from a country that is not a significant producer. See 19 U.S.C.
§ 1677b(c)(4)(B). Thus, the court finds no error in Commerce’s selection of Malaysian
data to value coal tar and will sustain Commerce’s determination on this issue.
III. Bituminous Coal
A. Commerce’s Determination
As the surrogate value for bituminous coal, Commerce selected Malaysian data
based on an import quantity of 381 MT.11 Third Remand Redetermination at 20; see
also Malaysian SV Submission at Attach. Malaysia-1. Before the agency, Jacobi
alleged that the bituminous coal surrogate value was not based on a commercially
significant import quantity. Third Remand Redetermination at 20. Commerce rejected
this contention, stating that it was not obligated to duplicate Jacobi’s exact production
experience and that Jacobi had not provided evidence that the Malaysian import
quantity is not commercially significant. Id. Commerce also declined to rely on Thai
11 Commerce did not identify the import amount of bituminous coal underlying the Malaysian data, see Third Remand Redetermination at 20, but the record indicates that this amount is 381 MT, see Pet’rs’ Submission of Malaysian Surrogate Values (Sept. 24, 2015) (“Malaysian SV Submission”) at Attach. Malaysia-1, PR 215-17, 3rd PJA Tab 4 (providing Malaysian Global Trade Atlas data from Harmonized Tariff Schedule heading 270112, excluding imports from non-market economies and economies with widely available export subsidies). The Parties assert, without explanation, that the Malaysian data for bituminous coal are based on an import quantity of 396 MT. See Jacobi’s Opp’n Cmts. at 5; CAC’s Opp’n Cmts. at 6; Gov’t’s Resp. at 11–12; Def.-Ints.’ Supp. Cmts. at 11. The court will utilize the import quantity identified in the record and notes that the difference between the quantities (that is, 396 MT and 381 MT) is immaterial. Consol. Court No. 16-00185 Page 16
surrogate data for bituminous coal because Thailand is not a significant producer of
comparable merchandise. Id.
B. Parties’ Contentions
Plaintiffs contend that the Malaysian value for bituminous coal is based on a
commercially insignificant import quantity.12 Jacobi’s Opp’n Cmts. at 5–6; CAC’s Opp’n
Cmts. at 6 (same). Plaintiffs represent that Jacobi’s suppliers purchased over 25,000
MT of bituminous coal during the POR,13 an amount 63 times higher than the quantity
underlying the Malaysia surrogate value. Jacobi’s Opp’n Cmts. at 5–6; CAC’s Opp’n
Cmts. at 7. Plaintiffs assert that Commerce should have valued Jacobi’s bituminous
coal using Thai data, even though the agency found that Thailand is not a significant
producer of comparable merchandise. Jacobi’s Opp’n Cmts. at 6–7; CAC’s Opp’n at 8.
The Government asserts that substantial evidence supports Commerce’s
selection of the Malaysian data for bituminous coal. Gov’t’s Resp. at 12–14; see also
Def.-Ints.’ Supp. Cmts. at 9–10. The Government avers that merely comparing the
amount of bituminous coal Jacobi’s suppliers consumed to the Malaysian import
quantity is insufficient to demonstrate that the quantity is not commercially significant.
Gov’t’s Resp. at 12–13; see also Def.-Ints.’ Supp. Cmts. at 10–11. The Government
12 Jacobi asserts that the Malaysian surrogate value “is not a representative price in light of Jacobi’s consumption.” Jacobi’s Opp’n Cmts. at 6. To the extent this suggests that the bituminous coal surrogate value is aberrational, Jacobi has not meaningfully developed this argument. “It is well established that arguments that are not appropriately developed in a party’s briefing may be deemed waived.” United States v. Great Am. Ins. Co. of New York, 738 F.3d 1320, 1328 (Fed. Cir. 2013). 13 The court previously noted that it is unclear to what extent NXHH’s consumption of inputs is imputable to Jacobi. Jacobi (AR8) I, 313 F. Supp. 3d at 1360 n.28. Plaintiffs have not since clarified this issue. Consol. Court No. 16-00185 Page 17
argues that because the agency determined that Thailand is not a significant producer
of activated carbon, Commerce’s rejection of Thai surrogate value of bituminous coal is
justified. Gov’t’s Resp. at 13–14; see also Def.-Ints.’ Supp. Cmts. at 13.
C. Substantial Evidence Supports Commerce’s Selection of the Malaysian Data to Value Jacobi’s Bituminous Coal
Commerce’s selection of Malaysian data to value bituminous coal is supported
by substantial evidence. “[W]hile a surrogate value must be as representative of the
situation in the NME country as is feasible, Commerce need not duplicate the exact
production experience of the [Chinese] manufacturers at the expense of choosing a
surrogate value that most accurately represents the fair market value of [the factor] in a
[hypothetical] market-economy [China].” Nation Ford, 166 F.3d at 1377 (alterations in
original except regarding “the factor”) (citation and internal quotation marks omitted).
Plaintiffs are correct that there is a substantial difference between the Malaysian
import quantity and the amount of bituminous coal Jacobi consumes. Jacobi’s Opp’n
Cmts. at 5; CAC’s Opp’n Cmts. at 7. But Commerce considered this evidence,
acknowledged the quantitative difference, and was not persuaded that the difference
rendered the Malaysian value unusable. Third Remand Redetermination at 18–20.
Plaintiffs have not identified any evidence that Commerce failed to consider or an error
in its reasoning; they merely disagree with Commerce’s conclusion. Thus, Plaintiffs’
argument amounts to little more than a plea for the court to reweigh the evidence. This
the court will not do. Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369,
1376–77 (Fed. Cir. 2015) (explaining that the court’s task is not to reweigh the
evidence). Consol. Court No. 16-00185 Page 18
Because the court finds no error in Commerce’s selection of the Malaysian data
to value bituminous coal, the court rejects Plaintiffs’ argument that Commerce was
obligated to rely on data from Thailand, which Commerce determined was not a
significant producer of comparable merchandise. Third Remand Redetermination at 6–
7, 20; see also Dorbest Ltd. v. United States, 604 F.3d 1363, 1372 (Fed. Cir. 2010)
(“The governing statute requires Commerce to use, to the extent possible, data from
countries that are ‘significant producers of comparable merchandise.’” (quoting 19
U.S.C. § 1677b(c)(4)(B)). Therefore, the court will sustain Commerce’s selection of
Malaysian data as the surrogate value for bituminous coal.
CONCLUSION AND ORDER
In accordance with the foregoing, it is hereby
ORDERED that Commerce’s Third Remand Redetermination is remanded to
further address or reconsider its selection of the surrogate value for carbonized material
in accordance with this opinion; it is further
ORDERED that Commerce’s Third Remand Redetermination is otherwise
sustained; it is further
ORDERED that Commerce shall file its fourth remand results on or before
March 16, 2020; it is further
ORDERED that the deadlines provided in USCIT Rule 56.2(h) shall govern
thereafter; and it is further Consol. Court No. 16-00185 Page 19
ORDERED that any opposition or supportive comments must not exceed 4,000
words.
/s/ Mark A. Barnett Mark A. Barnett, Judge
Dated: December 17, 2019 New York, New York