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,
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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 ___, 

(2018); Jacobi Carbons

AB v. United States (“Jacobi II”), 43 CIT ___, 

(2019); Jacobi

Carbons AB v. United States (“Jacobi III”), 43 CIT ___, 

(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

. However, the court remanded the agency’s

determination that Thailand is a significant producer of comparable merchandise,

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.
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1358–59; selection of certain surrogate values,

and adjustment to U.S.

price to account for irrecoverable value added tax (“VAT”),

        In Jacobi II, the court sustained Commerce’s VAT adjustment to U.S. 

–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.

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.

        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

The court remanded Commerce’s selection of




3
  Commerce selected Malaysia as the primary surrogate country under respectful
protest. Jacobi 

. By making the determination under
protest, Commerce preserves its right to appeal. See Meridian Prods. v. United States,

, 1276 n.3 (Fed. Cir. 2018) (citing Viraj Grp., Ltd. v. United States, 

, 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.

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.

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].”

(citation

omitted). But Commerce could not exclude the Myanmar imports without creating a

“null set” of data for carbonized material.

the Malaysian import

quantity (11 metric tons) could represent a “single shipment of one full transport

container,”

the production of subject merchandise requires more than a single

shipment of carbonized material,

Thus, Commerce found that the Malaysian

data did not represent a “commercial quantity of carbonized material.”

       Commerce continued to rely on the Cocommunity data to value carbonized

material.

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.”

comparable merchandise.” Jacobi 

. 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 ___,

___, 

, 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