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, 

v. 

UNITED STATES, 

 Defendant, 

and, 

CALGON CARBON CORPORATION 

AND CABOT NORIT AMERICAS, INC., 

 Defendant-Intervenors. 

 Before: Mark A. Barnett, Judge 

 Consol. Court No. 16-00185 

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 “largerquantity 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