Jacobi Carbons AB v. United States

• Decision Date: 17 December 2019
• Docket Number: Slip Op. 19-159,Consol. Court No. 15-00286
• Citation: 422 F.Supp.3d 1308
• Parties: JACOBI CARBONS AB and Jacobi Carbons, Inc., Plaintiffs, and Ningxia Huahui Activated Carbon Co., Ltd., et al., Plaintiff-Intervenors, v. UNITED STATES, Defendant, and Calgon Carbon Corporation and Cabot Norit Americas, Inc., Defendant-Intervenors.
• Court: U.S. Court of International Trade

422 F.Supp.3d 1308

JACOBI CARBONS AB and Jacobi Carbons, Inc., Plaintiffs,andNingxia Huahui Activated Carbon Co., Ltd., et al., Plaintiff-Intervenors,

v. UNITED STATES, Defendant,andCalgon Carbon Corporation and Cabot Norit Americas, Inc., Defendant-Intervenors.

Slip Op. 19-159

Consol. Court No. 15-00286

United States Court of International Trade.

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 Tianjin Co., Ltd., Jilin Bright Future Chemicals Co., Ltd., Ningxia Mineral and Chemical Ltd., Shanxi DMD Corp., Shanxi Industry Technology Trading Co., Ltd., Shanxi Sincere Industrial Co., Ltd., Tancarb Activated Carbon Co., Ltd., and Tianjin Maijin Industries Co., Ltd.

Antonia R. Soares, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant United States. With her on the brief were Joseph H. Hunt, Assistant Attorney General, Jeanne E. Davidson, Director, and Reginald T. Blades, Jr., 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 Corp. and Cabot Norit Americas, Inc.

OPINION AND ORDER

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. 147-1. Plaintiffs Jacobi Carbons AB and Jacobi Carbons, Inc. (together, "Jacobi") and Plaintiff-Intervenors¹ (collectively, with Jacobi, "Plaintiffs") initiated this case challenging Commerce's final results in the seventh administrative review ("AR 7") 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 , 80 Fed. Reg. 61,172 (Dep't Commerce Oct. 9, 2015) (final results of antidumping duty admin. review; 2013–2014) (" Final Results "), ECF No. 37-3, and accompanying Issues and Decision Mem., A-570-904 (Oct. 2, 2015) ("I&D Mem."), ECF No. 37-4.²

On April 7, 2017, the court remanded Commerce's original determination. See Jacobi Carbons AB v. United States ("Jacobi (AR7) I "), 41 CIT ––––, 222 F. Supp. 3d 1159 (2017). On August 10, 2017, Commerce filed its first remand redetermination. See Final Results of Redetermination Pursuant to Court Remand, ECF No. 105-1. On April 19, 2018, the court sustained the first remand redetermination, in part, but remanded the agency's surrogate country selection, surrogate value selections, and value added tax adjustment. See Jacobi Carbons AB v. United States ("Jacobi (AR7) II "), 42 CIT ––––, 313 F. Supp. 3d 1308 (2018).

On October 24, 2018, Commerce filed its second remand redetermination. See Final Results of Redetermination Pursuant to Court Remand ("Second Remand Redetermination"), ECF No. 133-1. On March 4, 2019, the court sustained the Second Remand Redetermination, in part, and remanded the agency's selection of Thailand as the primary surrogate country, holding that substantial evidence did not support Commerce's determination that Thailand is a significant producer of comparable merchandise. See Jacobi Carbons AB v. United States ("Jacobi (AR7) III "), 43 CIT ––––, ––––, 365 F. Supp. 3d 1323, 1331–34, 1342–44 (2019).³

On June 17, 2019, Commerce filed the Third Remand Redetermination. Therein, under protest,⁴ Commerce changed its primary surrogate country selection from Thailand to Indonesia. Third Remand Redetermination 5–12. Commerce used Indonesian data for all surrogate values with the exception of the surrogate financial ratios. Id. at 11–12. For the financial ratios, Commerce used the financial statements of a company in the Philippines, Premium AC Corporation. See Id. at 12, 20–21.

Before the court, no Party challenges Commerce's selection of Indonesia as the primary surrogate country or its selection of Premium AC Corporation's financial statements for the financial ratios. Id. at 11–12, 20–21. However, Plaintiffs do challenge Commerce's selection of Indonesian Global Trade Atlas ("GTA") data from Harmonized Tariff Schedule ("HTS") heading 2701.11, "Anthracite Coal, Whether Or Not Pulverized, But Not Agglomerated," as the surrogate value for anthracite coal. See Jacobi's Comment on Commerce's Third Remand Redetermination ("Jacobi's Opp'n Cmts."), ECF No. 149; [CATC's] Comments in Opp'n to U.S. Dep't of Commerce's Third Remand Redetermination ("CATC's Opp'n Cmts."), ECF No. 150. Defendant United States ("the Government") and Defendant-Intervenors Calgon Carbon Corporation and Cabot Norit Americas, Inc. (collectively "Defendant-Intervenors") filed comments in support of the Third Remand Redetermination. Def.'s Reply to Pls.' and Consol. Pls.' Respective Comments on the Third Remand Redetermination ("Gov't's Resp."), ECF No. 153; Def.-Ints.' Comments in Supp. of the Dep't of Commerce's Third Remand Redetermination ("Def.-Ints.' Resp."), ECF No. 152.

As discussed below, the court finds that Commerce's selection of the Indonesian GTA data as the surrogate value for anthracite coal is supported by substantial evidence and, accordingly, sustains the Third Remand Redetermination.

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). Additionally, "[t]he 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

I. Legal Framework

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); see also 19 C.F.R. § 351.408(c) (governing the information Commerce will use to value factors of production).

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) (citations omitted). In making its selection, Commerce is not required to duplicate the precise experience of the manufacturer in the non-market economy ("NME") 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 (Fed. Cir. 1999) (citation and internal quotation marks omitted). In selecting among available surrogate values, Commerce's practice is to reject a proposed surrogate value if it determines that the value is aberrational compared to other market values on the record. Canadian Solar Int'l Ltd. v. United States , 43 CIT ––––, ––––, 378 F. Supp. 3d 1292, 1306 n.14 (2019) ; see also Third Remand Redetermination at 15 (explaining Commerce's practice in determining whether a value is aberrational).

II. The Specificity of The Indonesian GTA Data Under HTS 2701.11

A. Commerce's Determination

In the Third Remand Redetermination, Commerce selected Indonesian GTA data for HTS 2701.11 to value anthracite coal, the main input in activated carbon. Third Remand Redetermination at 5, 14–20. Commerce selected HTS 2701.11 data because the agency used data for this HTS number in previous segments of this review to value anthracite coal. Id. at 18. Commerce explained that there was no evidence to suggest that Indonesian GTA data for HS 2701.11 was "not specific to the anthracite coal used by Jacobi's suppliers." Id. at 19. Commerce considered whether to use inflated Philippine GTA data from the fifth administrative review ("AR 5") to value the anthracite coal but declined to do so because contemporaneous data was available. Id. at 18–19 & n.84 (citing, inter alia , Calgon Carbon Corp. v. United States , Slip Op. 17-6, 2017 WL 384685 (CIT Jan. 27, 2017) ). Commerce also declined to rely on the U.S. Energy Information Administration ("EIA") data to value anthracite coal because Commerce had "usable data from countries with" gross national income ("GNI") "more comparable to that of China with which to value the anthracite coal." Id. at 17–18.

B. Parties' Contentions

Jacobi argues that Commerce's decision to value anthracite coal using Indonesian GTA data for HTS 2701.11 is not supported by substantial evidence because: (1) U.S. EIA data is more specific to Jacobi's anthracite coal input; (2) alternatively, the Philippine GTA data from AR 5 is more specific than the Indonesian surrogate value; and (3) HTS 2701.11 is a "broad basket" category...