[Federal Register Volume 82, Number 90 (Thursday, May 11, 2017)]
[Notices]
[Pages 21977-21979]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2017-09578]


-----------------------------------------------------------------------

DEPARTMENT OF COMMERCE

International Trade Administration

[A-570-904]


Certain Activated Carbon From the People's Republic of China: 
Notice of Court Decision Not in Harmony With Final Results of 
Administrative Review and Notice of Amended Final Results With Respect 
to Ningxia Huahui Activated Carbon Company, Ltd.

AGENCY: Enforcement and Compliance, International Trade Administration, 
Department of Commerce.

SUMMARY: On April 27, 2017, the Court of International Trade (CIT) 
issued its final judgment, sustaining the Department of Commerce's (the 
Department's) remand results pertaining to the third administrative 
review of the antidumping duty order on certain activated carbon from 
the People's Republic of China (PRC) covering the period of review 
(POR) of April 1, 2009, through March 31, 2010. The Department is 
notifying the public that the final judgment in this case is not in 
harmony with the final results of the administrative review, and that 
the Department is amending the final results with respect to Ningxia 
Huahui Activated Carbon Company, Ltd. (Huahui).

DATES: Effective Date: May 7, 2017.

FOR FURTHER INFORMATION CONTACT: Robert Palmer, AD/CVD Operations 
Office VIII, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 14th Street and 
Constitution Avenue NW., Washington, DC 20230; telephone: (202) 482-
9068.

SUPPLEMENTARY INFORMATION:

Background

    On October 31, 2011, the Department issued the AR3 Final Results in 
its review of certain activated carbon from the PRC,\1\ in which the 
Department calculated zero and de minimis weighted-average dumping 
margins for the individually-examined respondents.\2\ In the AR3 Final 
Results, the Department determined that averaging the individually-
examined respondents' zero and de minimis rates to establish separate 
rates for non-selected exporters would not be reasonably reflective of 
potential dumping margins during the POR.\3\ In

[[Page 21978]]

particular, the Department assigned to Huahui the $0.44/kg dumping 
margin it had assigned Huahui as an individually-examined respondent in 
the second administrative review, and assigned to all other separate 
rate respondents a dumping margin of $0.28/kg, which was the margin the 
Department had assigned to separate rate respondents in the second 
administrative review.\4\
---------------------------------------------------------------------------

    \1\ See Certain Activated Carbon from the People's Republic of 
China: Final Results and Partial Rescission of Antidumping Duty 
Administrative Review, 76 FR 67142 (October 31, 2011) (AR3 Final 
Results) and accompanying Issues and Decision Memorandum.
    \2\ The individually examined respondents were Jacobi Carbons AB 
and Calgon Carbon (Tianjin) Co., Ltd.
    \3\ See AR3 Final Results and accompanying Issues and Decision 
Memorandum at 5.
    \4\ Id. at 67145 and accompanying Issues and Decision Memorandum 
at 2-7.
---------------------------------------------------------------------------

    Certain separate rate respondents and their respective U.S. 
importers \5\ challenged the Department's separate rate determinations 
in the CIT.\6\ The CIT, in Albemarle I, remanded the Department's 
determination with regard to the separate rates assigned to Shanxi DMD 
and GHC/BPAC, and ordered the Department to reconsider its assignment 
of the $0.28/kg dumping margin to those separate rate respondents.\7\ 
The CIT reserved any decision regarding whether the $0.44/kg dumping 
margin assigned to Huahui was permissible until its review of the 
Department's remand redetermination.\8\ On remand following Albemarle 
I, the Department, under protest, averaged the zero and de minimis 
margins assigned to the individually-examined respondents in the third 
administrative review and assigned a dumping margin of zero to the 
separate rate respondents other than Huahui.\9\ The Department declined 
to reconsider Huahui's dumping margin on remand, and, therefore, 
continued to assign the previous rate of $0.44/kg.\10\
---------------------------------------------------------------------------

    \5\ Plaintiffs were Huahui and its affiliated U.S. importer 
Albemarle Corporation; Shanxi DMD Corporation (Shanxi DMD); and 
Ningxia Guanghua Cherishmet Activated Carbon Company and Beijing 
Pacific Activated Carbon Products Company, Ltd. (GHC/BPAC) and their 
affiliated U.S. importer Cherishmet Inc.
    \6\ Albemarle Corp. v. United States, 931 F. Supp. 2d 1280 (CIT 
2013) (Albemarle I).
    \7\ Id. at 1296-97.
    \8\ Id. at 1293.
    \9\ See Final Results of Redetermination Pursuant to Court 
Remand, Albemarle Corp. v. United States, Consol. Ct. No. 11-00451 
at 13 (January 9, 2014) (First Remand Redetermination).
    \10\ Id. at 22.
---------------------------------------------------------------------------

    Upon review of the Department's First Remand Redetermination, the 
CIT sustained the Department's assignment of the zero dumping margins 
to Shanxi DMD and GHC/BPAC, as well as the Department's assignment of a 
$0.44/kg dumping margin to Huahui.\11\ On December 5, 2014, the 
Department issued amended final results notifying the public that the 
final judgment in the case, with respect to Shanxi DMD and GHC/BPAC, 
was not in harmony with the AR3 Final Results. Accordingly, the 
Department revised the weighted-average dumping margins for Shanxi DMD 
and GHC/BPAC to zero dollars per kilogram.\12\
---------------------------------------------------------------------------

    \11\ Albemarle Corp. v. United States, 27 F. Supp. 3d 1336, 1352 
(CIT 2014) (Albemarle II).
    \12\ Certain Activated Carbon from the People's Republic of 
China: Notice of Court Decision Not in Harmony With Final Results of 
Administrative Review and Notice of Amended Final Results of 
Antidumping Duty Administrative Review; 2009-2010, 79 FR 72165 
(December 5, 2014) (Amended AR3 Final Results).
---------------------------------------------------------------------------

    Multiple parties appealed to the United States Court of Appeals for 
the Federal Circuit (Federal Circuit). The Federal Circuit, in 
Albemarle III, affirmed the CIT's judgment sustaining the Department's 
First Remand Redetermination with respect to Shanxi DMD and GHC/BPAC, 
but reversed the CIT's judgment as to the $0.44/kg dumping margin 
assigned to Huahui.\13\ Specifically, with regard to Huahui, the 
Federal Circuit found that, given Huahui's history of dumping in the 
immediately preceding review, the Department had substantial evidence 
to support a determination that averaging the zero and de minimis rates 
assigned to the mandatory respondents may not reasonably reflect 
Huahui's potential dumping margin during the POR.\14\ Nonetheless, 
although the Federal Circuit held that the Department was entitled to 
use ``other reasonable methods'' in assigning a rate to Huahui, the 
Federal Circuit found that the chosen method of carrying forward 
Huahui's data from the second administrative review was 
unreasonable.\15\ In particular, citing the statute's preference for 
contemporaneity in periodic administrative reviews, the Federal Circuit 
held that ``Commerce could not on this record utilize data from the 
previous review,'' and, ``having declined to collect additional 
information, was required to follow the `expected method' of utilizing 
the de minimis margins of the individually examined respondents from 
the contemporaneous period.'' \16\ The Federal Circuit remanded the 
case to the CIT to issue appropriate instructions to the Department 
regarding the dumping margin to be assigned to Huahui.\17\
---------------------------------------------------------------------------

    \13\ Albemarle Corp. & Subsidiaries v. United States, 821 F.3d 
1345 (Fed. Cir. 2016) (Albemarle III).
    \14\ Id. at 1355.
    \15\ Id. at 1355-56.
    \16\ Id. at 1359.
    \17\ Id.
---------------------------------------------------------------------------

    The CIT, in turn, remanded the issue to the Department with the 
instruction to ``redetermine a margin for Huahui in accordance with the 
holding of the Court of Appeals in Albemarle III.'' \18\ In its Second 
Remand Redetermination, the Department averaged the zero and de minimis 
rates calculated for the individually-examined respondents in the third 
administrative review and assigned the resulting zero dumping margin to 
Huahui.\19\ On April 27, 2017, the CIT sustained the Second Remand 
Redetermination and entered judgment accordingly.\20\ The CIT's 
judgment in Albemarle IV constitutes a final decision that is not in 
harmony with the Department's AR3 Final Results and the Amended AR3 
Final Results.
---------------------------------------------------------------------------

    \18\ See Albemarle Corp. v. United States, Consol. Court No. 11-
00451, Slip Op. 16-84 (CIT September 7, 2016) at 5-6.
    \19\ See Final Results of Redetermination Pursuant to Court 
Remand, Albemarle Corp. et al. v. United States, Consol. Court No. 
11-00451, Slip Op. 16-84 (CIT September 7, 2016) (Second Remand 
Redetermination).
    \20\ See Albemarle Corp. et al. v. United States, Consol. Court 
No. 11-00451, Slip Op. 17-51 (CIT April 27, 2017) (Albemarle IV).
---------------------------------------------------------------------------

Timken Notice

    In its decision in Timken,\21\ as clarified by Diamond 
Sawblades,\22\ the Federal Circuit held that, pursuant to section 
516A(e) of the Tariff Act of 1930, as amended (the Act), the Department 
must publish a notice of a court decision that is not ``in harmony'' 
with a Department determination and must suspend liquidation of entries 
pending a ``conclusive'' court decision.
---------------------------------------------------------------------------

    \21\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. 
Cir. 1990) (Timken).
    \22\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
---------------------------------------------------------------------------

    This notice is published in fulfillment of the publication 
requirement of Timken. Accordingly, the Department will continue the 
suspension of liquidation of the subject merchandise at issue in the 
Second Remand Redetermination and Albemarle IV pending expiration of 
the period to appeal or, if appealed, a final and conclusive court 
decision.

Amended Final Results

    Because there is now a final court decision, the Department amends 
the AR3 Final Results with respect to Huahui. Based on the Second 
Remand Redetermination, as affirmed by the Court in Albemarle IV, the 
revised weighted-average dumping margin for Huahui for the period April 
1, 2009, through March 31, 2010, is zero.
    In the event that the CIT's ruling is not appealed or, if appealed, 
is upheld by a final and conclusive court decision, the Department will 
instruct U.S. Customs and Border Protection to assess antidumping 
duties on unliquidated entries of subject merchandise based on the 
revised dumping margin listed above.

[[Page 21979]]

Cash Deposit Requirements

    Because there have been subsequent administrative reviews for 
Huahui, the cash deposit rate for Huahui will remain the rate 
established in the recently-completed AR8 Final Results, which is 
$1.36/kg.\23\
---------------------------------------------------------------------------

    \23\ See Certain Activated Carbon from the People's Republic of 
China: Final Results of Antidumping Duty Administrative Review; 
2014-2015, 81 FR 62088, 62089 (September 8, 2016) (AR8 Final 
Results).
---------------------------------------------------------------------------

    Notification to Interested Parties
    This notice is issued and published in accordance with sections 
516A(e)(1), 751(a)(1), and 777(i)(1) of the Act.

    Dated: May 5, 2017.
Gary Taverman,
Associate Deputy Assistant Secretary for Antidumping and Countervailing 
Duty Operations.
[FR Doc. 2017-09578 Filed 5-10-17; 8:45 am]
BILLING CODE 3510-DS-P