Slip Op. 20-55
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
[The U.S. Department of Commerce’s fourth remand results are sustained.]
Dated: April 23, 2020
Daniel L. Porter, James P. Durling, and Tung A. Nguyen, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, DC, for Plaintiffs Jacobi Carbons AB and Jacobi Carbons, Inc.
Lizbeth R. Levison, Brittney R. Powell, and Ronald M. Wisla, Fox Rothschild LLP, of Washington, DC, for Plaintiff-Intervenor Ningxia Huahui Activated Carbon Co., Ltd.
Francis J. Sailer, Andrew T. Schutz, Brandon M. Petelin, and Dharmendra N. Choudhary, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY, Consol. Court No. 16-00185 Page 2
for Plaintiff-Intervenors Beijing Pacific Activated Carbon Products Company, Ltd., Ningxia Guanghua Cherishmet Activated Carbon Company, Ltd., and Datong Municipal Yunguang Activated Carbon Company, Ltd.
William E. Perry and Adams Chi-Peng Lee, Harris Bricken McVay Sliwoski, LLP, of Seattle, WA, for Plaintiff-Intervenors M.L. Ball Co., Ltd. and Jilin Bright Future Chemicals Company, Ltd.
Gregory S. Menegaz, Alexandra H. Salzman, J. Kevin Horgan, and John J. Kenkel, 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.
Mollie L. Finnan, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. Of counsel was Emma T. Hunter, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Melissa M. Brewer, R. Alan Luberda, and John M. Herrmann, 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”) fourth redetermination upon remand in this
case. See Final Results of Redetermination Pursuant to Court Remand (“4th Remand
Results”), ECF No. 155-1. Plaintiffs Jacobi Carbons AB and Jacobi Carbons, Inc.
(together, “Jacobi”) and Plaintiff-Intervenors1 challenged several aspects of Commerce’s
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 Consol. Court No. 16-00185 Page 3
final results in the eighth administrative review of the antidumping duty order on certain
activated carbon from the People’s Republic of China (“the PRC”). See Certain
Activated Carbon From the People’s Republic of China, 81 Fed. Reg. 62,088 (Dep’t
Commerce Sept. 8, 2016) (final results of antidumping duty admin. review; 2014–2015),
ECF No. 44-4,2 and accompanying Issues and Decision Mem., A-570-904 (Aug. 31,
2016), ECF No. 44-5. The court has issued three opinions resolving substantive issues
raised in this case; familiarity with those opinions is presumed. See Jacobi Carbons AB
v. United States (“Jacobi I”), 42 CIT ___, 313 F. Supp. 3d 1344 (2018); Jacobi Carbons
AB v. United States (“Jacobi II”), 43 CIT ___, 365 F. Supp. 3d 1344 (2019); Jacobi
Carbons AB v. United States (“Jacobi III”), 43 CIT ___, 422 F. Supp. 3d 1318 (2019).
Early in this litigation, the court granted Defendant’s request for remand to allow
the agency 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. Jacobi I sustained the
subsequent remand results with respect to Commerce’s economic comparability
determination. 313 F. Supp. 3d at 1356. However, the court remanded the agency’s
determination that Thailand is a significant producer of comparable merchandise, id. at
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. 2 Commerce filed a public administrative record in connection with the 4th Remand Results. See ECF No. 156-2. Consol. Court No. 16-00185 Page 4
1358–59; selection of certain surrogate values, id. at 1360–72; and adjustment to U.S.
price to account for irrecoverable value added tax (“VAT”), id. at 1373.
In Jacobi II, the court sustained Commerce’s VAT adjustment to U.S. price. 365
F. Supp. 3d at 1360–63. The court remanded Commerce’s selection of Thailand as the
primary surrogate country as unsupported by substantial evidence with respect to
Commerce’s determination that Thailand was a significant producer of comparable
merchandise. Id. at 1351–53. The court instructed Commerce to select a country that
meets the 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.
On remand pursuant to Jacobi II, Commerce selected Malaysia as the primary
surrogate country. Jacobi III, 422 F Supp. 3d at 1321.3 However, Commerce
determined that Malaysian data for carbonized material were based on an insignificant
import quantity, and thus, valued that input using data from the Philippine industry
publication Cocommunity.4 Id. at 1323. The court remanded Commerce’s selection of
3 Commerce selected Malaysia as the primary surrogate country under respectful protest. Jacobi III, 422 F. Supp. 3d at 1321. 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)). 4 In the third remand results, Commerce determined that the Philippines is “at a comparable level of economic development as [the PRC] and [a] significant producer of Consol. Court No.
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Slip Op. 20-55
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
[The U.S. Department of Commerce’s fourth remand results are sustained.]
Dated: April 23, 2020
Daniel L. Porter, James P. Durling, and Tung A. Nguyen, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, DC, for Plaintiffs Jacobi Carbons AB and Jacobi Carbons, Inc.
Lizbeth R. Levison, Brittney R. Powell, and Ronald M. Wisla, Fox Rothschild LLP, of Washington, DC, for Plaintiff-Intervenor Ningxia Huahui Activated Carbon Co., Ltd.
Francis J. Sailer, Andrew T. Schutz, Brandon M. Petelin, and Dharmendra N. Choudhary, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of New York, NY, Consol. Court No. 16-00185 Page 2
for Plaintiff-Intervenors Beijing Pacific Activated Carbon Products Company, Ltd., Ningxia Guanghua Cherishmet Activated Carbon Company, Ltd., and Datong Municipal Yunguang Activated Carbon Company, Ltd.
William E. Perry and Adams Chi-Peng Lee, Harris Bricken McVay Sliwoski, LLP, of Seattle, WA, for Plaintiff-Intervenors M.L. Ball Co., Ltd. and Jilin Bright Future Chemicals Company, Ltd.
Gregory S. Menegaz, Alexandra H. Salzman, J. Kevin Horgan, and John J. Kenkel, 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.
Mollie L. Finnan, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. Of counsel was Emma T. Hunter, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, DC.
Melissa M. Brewer, R. Alan Luberda, and John M. Herrmann, 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”) fourth redetermination upon remand in this
case. See Final Results of Redetermination Pursuant to Court Remand (“4th Remand
Results”), ECF No. 155-1. Plaintiffs Jacobi Carbons AB and Jacobi Carbons, Inc.
(together, “Jacobi”) and Plaintiff-Intervenors1 challenged several aspects of Commerce’s
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 Consol. Court No. 16-00185 Page 3
final results in the eighth administrative review of the antidumping duty order on certain
activated carbon from the People’s Republic of China (“the PRC”). See Certain
Activated Carbon From the People’s Republic of China, 81 Fed. Reg. 62,088 (Dep’t
Commerce Sept. 8, 2016) (final results of antidumping duty admin. review; 2014–2015),
ECF No. 44-4,2 and accompanying Issues and Decision Mem., A-570-904 (Aug. 31,
2016), ECF No. 44-5. The court has issued three opinions resolving substantive issues
raised in this case; familiarity with those opinions is presumed. See Jacobi Carbons AB
v. United States (“Jacobi I”), 42 CIT ___, 313 F. Supp. 3d 1344 (2018); Jacobi Carbons
AB v. United States (“Jacobi II”), 43 CIT ___, 365 F. Supp. 3d 1344 (2019); Jacobi
Carbons AB v. United States (“Jacobi III”), 43 CIT ___, 422 F. Supp. 3d 1318 (2019).
Early in this litigation, the court granted Defendant’s request for remand to allow
the agency 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. Jacobi I sustained the
subsequent remand results with respect to Commerce’s economic comparability
determination. 313 F. Supp. 3d at 1356. However, the court remanded the agency’s
determination that Thailand is a significant producer of comparable merchandise, id. at
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. 2 Commerce filed a public administrative record in connection with the 4th Remand Results. See ECF No. 156-2. Consol. Court No. 16-00185 Page 4
1358–59; selection of certain surrogate values, id. at 1360–72; and adjustment to U.S.
price to account for irrecoverable value added tax (“VAT”), id. at 1373.
In Jacobi II, the court sustained Commerce’s VAT adjustment to U.S. price. 365
F. Supp. 3d at 1360–63. The court remanded Commerce’s selection of Thailand as the
primary surrogate country as unsupported by substantial evidence with respect to
Commerce’s determination that Thailand was a significant producer of comparable
merchandise. Id. at 1351–53. The court instructed Commerce to select a country that
meets the 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.
On remand pursuant to Jacobi II, Commerce selected Malaysia as the primary
surrogate country. Jacobi III, 422 F Supp. 3d at 1321.3 However, Commerce
determined that Malaysian data for carbonized material were based on an insignificant
import quantity, and thus, valued that input using data from the Philippine industry
publication Cocommunity.4 Id. at 1323. The court remanded Commerce’s selection of
3 Commerce selected Malaysia as the primary surrogate country under respectful protest. Jacobi III, 422 F. Supp. 3d at 1321. 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)). 4 In the third remand results, Commerce determined that the Philippines is “at a comparable level of economic development as [the PRC] and [a] significant producer of Consol. Court No. 16-00185 Page 5
surrogate data for carbonized material because the agency’s reasoning was not
discernable. Id. at 1324, 1328.
In the redetermination at issue here, Commerce continued to find the Malaysian
data unreliable. 4th Remand Results at 3. Commerce explained that the Malaysian
data contain imports from Myanmar. Id. at 4. The Myanmar imports represent a small
import quantity with “substantially different . . . per-unit values” compared to “larger-
quantity imports . . . from other countries that exported to [Malaysia].” Id. at 5 (citation
omitted). But Commerce could not exclude the Myanmar imports without creating a
“null set” of data for carbonized material. Id. Further, while the Malaysian import
quantity (11 metric tons) could represent a “single shipment of one full transport
container,” id. at 6, the production of subject merchandise requires more than a single
shipment of carbonized material, id. at 6–7. Thus, Commerce found that the Malaysian
data did not represent a “commercial quantity of carbonized material.” Id. at 7.
Commerce continued to rely on the Cocommunity data to value carbonized
material. Id. at 8. Commerce explained that these data are “representative of a broad
market average, publicly available and contemporaneous with the period of review
(POR), tax and duty exclusive and specific to carbonized material used in the
production of the subject merchandise.” Id. at 6.
comparable merchandise.” Jacobi III, 422 F. Supp. 3d at 1321. Commerce did not reconsider this finding in the 4th Remand Results. Consol. Court No. 16-00185 Page 6
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to subsection 516A(a)(2)(B)(i) of the Tariff Act
of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(i) (2012), and 28 U.S.C. § 1581(c).
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) (citation and internal quotation marks omitted).
DISCUSSION
Jacobi submitted comments during the remand proceeding supporting
Commerce’s draft results, which Commerce confirmed in the 4th Remand Results. 4th
Remand Results at 8. Defendant-Intervenors also do not object to the 4th Remand
Results. Ltr. from Melissa M. Brewer, Kelley Drye & Warren LLP, to the Court (Apr. 6,
2020), ECF No. 157. No other comments were received. Thus, Commerce’s
determination is uncontested.
Commerce’s valuation of carbonized material complies with the court’s order in
Jacobi III by providing reasoning supported by substantial evidence for declining to rely
on the Malaysian data and, instead, selecting the Cocommunity data. 4th Remand
Results at 3. Consol. Court No. 16-00185 Page 7
CONCLUSION
There being no challenges to the 4th Remand Results, and those results being
otherwise lawful and supported by substantial evidence, the court will sustain
Commerce’s 4th Remand Results. Judgment will enter accordingly.
/s/ Mark A. Barnett Mark A. Barnett, Judge
Dated: April 23, 2020 New York, New York