Carbon Activated Tianjin Co., Ltd. et al v. United States

Slip Op. 21-
UNITED STATES COURT OF INTERNATIONAL TRADE
CALGON CARBON CORPORATION AND
CABOT NORIT AMERICAS, INC.,
Plaintiffs,
and
CARBON ACTIVATED TIANJIN CO., LTD.
AND CARBON ACTIVATED
CORPORATION, ET AL.,
Consolidated Plaintiffs,
v.
UNITED STATES,
Defendant,
and
CARBON ACTIVATED TIANJIN CO., LTD.
AND CARBON ACTIVATED
CORPORATION, ET AL.,
Defendant-Intervenors.
Before: Mark A. Barnett, Chief Judge
Consol. Court No. 18-00232
OPINION
[Sustaining the second remand redetermination in the tenth administrative review of the
antidumping duty order on certain activated carbon from the People’s Republic of
China.]
Dated:
David A. Hartquist, R. Alan Luberda, John M. Herrmann, II, and Melissa M. Brewer,
Kelley Drye & Warren LLP, of Washington, DC, for Plaintiffs/Defendant-Intervenors
Calgon Carbon Corp. and Cabot Norit Americas, Inc.
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Francis J. Sailer, Dharmendra N. Choudhary, and Jordan C. Khan, Grunfeld, Desiderio,
Lebowitz, Silverman & Klestadt LLP, of Washington, DC, for Consolidated Plaintiffs/
Defendant-Intervenors Carbon Activated Tianjin Co., Ltd., Carbon Activated
Corporation, Datong Juqiang Activated Carbon Co., Ltd., and Ningxia Guanghua
Cherishmet Activated Carbon Co., Ltd.
Antonia R. Soares, Senior Trial Counsel, Commercial Litigation Branch, Civil Division,
U.S. Department of Justice, of Washington, DC, for Defendant United States. Of
counsel was Ayat Mujais, Attorney, Office of the Chief Counsel for Trade Enforcement
and Compliance, U.S. Department of Commerce, of Washington, DC.
Barnett, Chief Judge: This matter is before the court following the U.S.
Department of Commerce’s (“Commerce” or “the agency”) redetermination pursuant to
court remand in the tenth administrative review (“AR10”) of the antidumping duty order
on certain activated carbon from the People’s Republic of China for the period of review
April 1, 2016, through March 31, 2017. See Final Results of [Second] Redetermination
Pursuant to Court Remand (“Second Remand Results”), ECF No. 87-1; see generally
Final Results of [First] Redetermination Pursuant to Court Remand (“First Remand
Results”), ECF No. 75-1; Certain Activated Carbon From the People’s Republic of
China, 83 Fed. Reg. 53,214 (Dep’t Commerce Oct. 22, 2018) (final results of
antidumping duty admin. review; 2016–2017), ECF No. 29-4, and accompanying Issues
and Decision Mem., A-570-904 (Oct. 16, 2018), ECF No. 29-5, as amended by Certain
Activated Carbon From the People’s Republic of China, 83 Fed. Reg. 58,229 (Dep’t
Commerce Nov. 19, 2018) (am. final results of antidumping duty admin. review; 2016–
2017). The court has issued two opinions resolving substantive issued raised in this
case; familiarity with those opinions is presumed. See Calgon Carbon Corp. v. United
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States (“Calgon (AR10) II”), 44 CIT ___, 487 F. Supp. 3d 1359 (2020); Calgon Carbon
Corp. v. United States (“Calgon (AR10) I”), 44 CIT ___, 443 F. Supp. 3d 1334 (2020).
In Calgon (AR10) I, and relevant to this discussion, the court remanded
Commerce’s selection of Thai1 import data under Harmonized Tariff Schedule (“HTS”)
subheading 4402.90.1000 (coconut charcoal) to value carbonized material—an input
Respondents 2 consumed in producing the subject merchandise. Calgon (AR10) I, 443
F. Supp. 3d at 1349–50; see also Calgon (AR10) II, 487 F. Supp. 3d at 1362. The Thai
data included import quantities from, among other countries, France and Japan. See
Calgon (AR10) I, 443 F. Supp. 3d at 1348. Monthly French import quantities did not
cover the entire period of review, id. at 1348–49, but only May 2016 to January 2017,
Calgon (AR10) II, 487 F. Supp. 3d at 1363. Commerce acknowledged that evidence
indicated that French imports during some months were wood-based charcoal, which
contradicted the agency’s finding that the record lacked information “that French imports
under HTS 4402.90.1000 were indeed wood-based charcoal.” Calgon (AR10) I, 443 F.
Supp. 3d at 1349 (citation omitted). Moreover, the average unit value (“AUV”) of the
French imports was twice that of the remaining Thai import data. Id. at 1350. The court
noted that in the eighth and ninth administrative reviews (“AR8” and “AR9,”
respectively), Commerce excluded French imports based on similar evidence that the
1 “Commerce selected Thailand as the primary surrogate country.” Calgon (AR10) I,
443 F. Supp. 3d at 1343 n.9.
2 The court refers to the Consolidated Plaintiffs that participated in proceedings for the
Second Remand Results—Carbon Activated Tianjin Co. Ltd. and Datong Juqiang
Activated Carbon Co., Ltd. (“DJAC”)—as “Respondents.” See Second Remand Results
at 2 n.8.
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imports consisted of wood-based charcoal. See id. at 1350 n.26. Commerce failed to
adequately address evidence detracting from its decision to rely on the French import
data or explain why French imports in this review should be treated differently than in
AR8 and AR9. Id. at 1349–50 & n.26. Commerce also failed to adequately explain its
refusal to exclude Japanese imports, which were based on a small quantity and had an
AUV almost 30 times higher than the rest of the Thai import data. Id. at 1350.
Accordingly, the court remanded Commerce’s selection of data to value carbonized
material. See id.3
In the First Remand Results, Commerce excluded Japanese imports from the
Thai import data, First Remand Results at 5–7, 22, but continued to include French
imports, id. at 3–5, 17–22.
In Calgon (AR10) II, the court sustained Commerce’s exclusion of the Japanese
imports. 487 F. Supp. 3d at 1362. However, the court remanded Commerce’s inclusion
of the French imports. See id. at 1365–66. The court explained that:
Commerce acknowledged that the May, July, and August 2016 import
quantities (i.e., quantities classified as coconut charcoal upon importation)
were, in fact, wood-based charcoal. In so doing, Commerce’s finding
aligned with its findings in AR8 and AR9 that all Thai imports from France
during the relevant periods consisted of wood-based charcoal,
notwithstanding their classification as coconut-based charcoal.
3 The court also remanded adjustments Commerce made to the surrogate financial
statements. See Calgon (AR10) I, 443 F. Supp. 3d at 1353–54. Commerce explained
the adjustments in the First Remand Results, and the court sustained those
adjustments. See Calgon (AR10) II, 487 F. Supp. 3d at 1362.
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Id. at 1365 (citations omitted). The court found that “Commerce did not identify
evidence indicating that any quantity imported during any subsequent month was
something other than wood-based charcoal.” Id. The court concluded that “Commerce
failed its statutory directive to support its decision that the Thai data inclusive of French
imports was the ‘best available information’ with which to value carbonized material with
substantial evidence.” Id. at 1366 (citation omitted).
In the Second Remand Results, Commerce, under respectful protest,4 excluded
French imports from the Thai data. See Second Remand Results at 9–10. Commerce
explained that its decision “is limited to the circumstances” of this case. Id. at 9. The
“circumstances” Commerce referred to consisted of the court’s finding that the agency’s
assessment of French imports in AR8 and AR9 combined with similar evidence on the
record of AR10 gave rise to a reasonable inference that the French imports in AR10
were wood-based charcoal in the absence of evidence rebutting that inference. Id.
(discussing Calgon (AR10) II, 487 F. Supp. 3d at 1366); see also id. at 17–18.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to subsection 516A(a)(2)(B)(iii) of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2018), and 28 U.S.C.
§ 1581(c) (2018). 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
4 By making the determination under protest, Commerce preserves its right to appeal.
See Viraj Grp., Ltd. v. United States, 343 F.3d 1371, 1376 (Fed. Cir. 2003).
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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 omitted).
DISCUSSION
Respondents submitted comments during the remand proceedings that, in
relevant part, supported Commerce’s exclusion of French imports from the Thai data
used to value carbonized material. Second Remand Results at 10.5 No party filed
comments with the court, and thus, Commerce’s redetermination is uncontested.
Commerce’s valuation of carbonized material complies with the court’s order in
Calgon (AR10) II by selecting Thai import data under HTS subheading 4402.90.1000,
exclusive of French imports, to value Respondents’ carbonized material. See id. at 10.
CONCLUSION
There being no challenges to the Second Remand Results, and those results
being otherwise lawful and supported by substantial evidence, the court will sustain
Commerce’s Second Remand Results. Judgment will enter accordingly.
/s/ 	Mark A. Barnett
Mark A. Barnett, Chief Judge
Dated:_________________
New York, New York
5 Respondents disputed “Commerce’s intention to limit its determination [to exclude the
French imports] to the unique set of facts underlying this proceeding.” Second Remand
Results at 10–11. Commerce also corrected minor errors in DJAC’s margin program as
Respondents requested. See id. at 18. No party challenges these determinations
before the court.
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