Jacobi Carbons AB v. United States

• Decision Date: 17 December 2019
• Docket Number: Consol. Court No. 16-00185,Slip Op. 19-160
• Citation: 422 F.Supp.3d 1318
• Parties: JACOBI CARBONS AB and Jacoxbi 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 1318

JACOBI CARBONS AB and Jacoxbi 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.

Slip Op. 19-160

Consol. Court No. 16-00185

United States Court of International Trade.

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.

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.

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. 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. 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 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.

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., 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.

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, 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...