[Federal Register Volume 84, Number 248 (Friday, December 27, 2019)]
[Notices]
[Pages 71369-71371]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2019-28127]


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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

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

SUMMARY: On December 17, 2019, the Court of International Trade (the 
Court) issued a final judgment in Jacobi Carbons AB v. United States, 
Consol. Court No. 15-00286; Slip Op. 19-159 (CIT December 17, 2019) 
(Jacobi AR7 IV), sustaining the Department of Commerce's (Commerce's) 
third remand results pertaining to the seventh administrative review of 
the antidumping duty order on certain activated carbon from the 
People's Republic of China (China) covering the period of April 1, 2013 
through March 31, 2014. Commerce 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 Commerce is amending the final results 
with respect to certain producers and/or exporters identified herein.

DATES: Applicable December 27, 2019.

FOR FURTHER INFORMATION CONTACT: Robert Palmer, AD/CVD Operations 
Office VIII, Enforcement and Compliance, International Trade 
Administration, U.S. Department of Commerce, 1401 Constitution Avenue 
NW, Washington, DC 20230; telephone: (202) 482-9068.

SUPPLEMENTARY INFORMATION: 

Background

    On October 9, 2015, Commerce issued the AR7 Final Results.\1\ 
Jacobi Carbons AB (Jacobi), a mandatory respondent, and Jacobi Carbons, 
Inc., its affiliated U.S. importer of subject merchandise,\2\ 
challenged certain aspects of the AR7 Final Results. Jacobi challenged 
Commerce's final results regarding: (1) The selection of Thailand as 
the primary surrogate country for the mandatory respondents,\3\ (2) the 
selection of Thai surrogate values (SV) used to value financial ratios 
and carbonized material, and (3) the reduction of Jacobi's constructed 
export price (CEP) by an amount for irrecoverable value added tax 
(VAT). On April 7, 2017, the Court in Jacobi AR7 I remanded Commerce's 
AR7 Final Results with respect to

[[Page 71370]]

Commerce's surrogate country selection (specifically, its 
determinations regarding economic comparability generally and 
significant production of comparable merchandise by Thailand in 
particular). The Court also sustained Commerce's authority to deduct 
irrecoverable VAT from CEP, while ruling that Commerce's calculation 
methodology lacked substantial evidence and remanding to Commerce on 
that issue. The Court deferred resolving Jacobi's arguments regarding 
Thai SVs pending the results of Commerce's remand redetermination.\4\
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    \1\ See Certain Activated Carbon from the People's Republic of 
China: Final Results of Antidumping Duty Administrative Review; 
2013-2014, 80 FR 61172 (October 9, 2015) (AR7 Final Results) and 
accompanying Issues and Decisions Memorandum (IDM).
    \2\ In the third administrative review of the Order, Commerce 
found that Jacobi, Tianjin Jacobi International Trading Co. Ltd., 
and Jacobi Carbons Industry (Tianjin) are a single entity and, 
because there were no changes to the facts which supported that 
decision since that determination was made, we continued to find 
these companies part of a single entity for this administrative 
review. See Certain Activated Carbon from the People's Republic of 
China: Final Results and Partial Rescission of Third Antidumping 
Duty Administrative Review, 76 FR 67142 (October 31, 2011) (AR3 
Final Results); Certain Activated Carbon from the People's Republic 
of China; 2010-2011; Final Results of Antidumping Duty 
Administrative Review, 77 FR 67337 (November 9, 2012) (AR4 Final 
Results); Certain Activated Carbon from the People's Republic of 
China: Final Results of Antidumping Duty Administrative Review; 
2011-2012, 78 FR 70533 (November 26, 2013) (AR5 Final Results); and 
Certain Activated Carbon from the People's Republic of China: Final 
Results of Antidumping Duty Administrative Review; 2012-2013, 79 FR 
70163 (November 25, 2014) (AR6 Final Results).
    \3\ The mandatory respondents are Jacobi and Datong Juqiang 
Activated Carbon Co., Ltd. (Juqiang).
    \4\ See Jacobi Carbons AB v. United States, 222 F. Supp. 3d 1159 
(CIT 2017) (Jacobi AR7 I).
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    Jacobi AR7 I ordered Commerce: (1) To provide a reasoned 
explanation as to why the range of gross national income (GNI) 
reflected on the Surrogate Country Memorandum \5\ demonstrates economic 
comparability to China, including why the Philippines's GNI did not, 
(2) reconsider and further explain Commerce's determination that 
Thailand is a significant producer of activated carbon, including the 
significance of Thailand's ranking as the sixth largest exporter in 
terms of its effect on global trade, and (3) further explain and 
reconsider Commerce's VAT calculation with respect to Jacobi in the AR6 
Final Results.
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    \5\ See Memorandum, ``Certain Activated Carbon from the People's 
Republic of China: Request for Surrogate Country and Surrogate Value 
Comments and Information,'' dated July 25, 2014 (Surrogate Country 
Memorandum).
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    On August 10, 2017, Commerce filed Remand I with the Court.\6\ 
Commerce addressed and clarified these issues without making any 
changes to the margin calculations for Jacobi.\7\
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    \6\ See Jacobi Carbons AB et al. v. United States, Consol. Court 
No. 15-00286, Slip Op. 17-39, Final Results of Redetermination 
Pursuant to Court Remand, dated August 7, 2017 (Remand I).
    \7\ See Remand I at 1-2, 42.
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    On April 19, 2018, the Court in Jacobi AR7 II sustained Commerce's 
economic comparability determination but again remanded Commerce's 
determination that Thailand is a significant producer of comparable 
merchandise and its determination on the irrecoverable VAT adjustment, 
as well as its SV selections for financial ratios and carbonized 
material.\8\ Although the Court in Jacobi AR7 II held that Commerce 
``provided a reasoned explanation of how it generated the surrogate 
country list, including why it considers those countries on the list to 
be at the same level of economic development'' as China, which is 
supported by substantial evidence,\9\ the Court ultimately found that 
the current record did not support Commerce's significant producer 
determination on the basis of net exports. As a result, the Court 
remanded the matter and ordered Commerce to further explain or 
reconsider its significant producer determination.\10\ The Court also 
remanded the irrecoverable VAT adjustment for Commerce to address 
whether it is using gross or net prices to calculate the adjustment, 
and requested Commerce address and clarify the issues arising from the 
selection of the Carbokarn 2011 financial statements for the 
calculation of financial ratios and address the carbonized material 
SV.\11\
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    \8\ See Jacobi Carbons AB. v. United States, 313 F. Supp. 3d 
1308 (CIT 2018) (Jacobi AR7 II).
    \9\ Id. at 11.
    \10\ Id. at 14.
    \11\ Id. at 14-23.
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    On October 24, 2018, Commerce filed Remand II with the Court.\12\ 
Commerce affirmed its determination that Thailand is a significant 
producer of comparable merchandise and its selection of Thai import 
data as the SV for carbonized material.\13\ Commerce selected a 
different Thai source to value financial ratios and reconsidered the 
basis for its VAT adjustment while continuing to adjust Jacobi's CEP 
for VAT.\14\ As a result, Commerce revised its surrogate financial 
ratios and revised the VAT calculation formula using only entered 
value. Consequently, Jacobi's final margin was revised to $1.76/kg. The 
separate rate was revised to $1.76/kg for: (1) Beijing Pacific 
Activated Carbon Products Co., Ltd. (Beijing Pacific); (2) Carbon 
Activated Tianjin Co., Ltd. (CA Tianjin); (3) Datong Municipal Yunguang 
Activated Carbon Co., Ltd. (Yunguang); (4) Jilin Bright Future 
Chemicals Co., Ltd. (Jilin Bright); (5) Ningxia Guanghua Cherishmet 
Activated Carbon Co., Ltd. (Cherishmet); (6) Ningxia Huahui Activated 
Carbon Co., Ltd. (Huahui); (7) Ningxia Mineral and Chemical Ltd. 
(Ningxia Mineral); (8) Shanxi DMD Corp. (Shanxi DMD); (9) Shanxi 
Industry Technology Trading Co., Ltd. (Shanxi Technology); (10) Shanxi 
Sincere Industrial Co., Ltd. (Sincere); (11) Tancarb Activated Carbon 
Co., Ltd. (Tancarb); and (12) Tianjin Maijin Industries Co., Ltd. 
(Maijin). Commerce used the same methodology for calculating the 
separate rate that was used in the AR7 Final Results.\15\
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    \12\ See Jacobi Carbons AB et al. v. United States, Consol. 
Court No. 15-00286, Slip Op. 18-46, Final Results of Redetermination 
Pursuant to Court Remand, dated October 23, 2018 (Remand II).
    \13\ Id. at 3-8, 15-20.
    \14\ Id. at 9-15, 20-32.
    \15\ See Remand II at 54.
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    On March 4, 2019, the Court in Jacobi AR7 III sustained Commerce's 
VAT adjustment but again remanded Commerce's determination that 
Thailand is a significant producer of comparable merchandise and 
directed Commerce to reconsider its selection of a primary surrogate 
country, and remanded Commerce's SV selection for carbonized material 
and financial ratios on the basis that they were from Thailand.\16\ The 
Court in Jacobi AR7 III held that Commerce's determination that 
Thailand is a significant producer of activated carbon was not 
sufficiently supported by substantial evidence, and further held that 
the record does not support the selection of Thailand as a surrogate 
country.\17\
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    \16\ See Jacobi Carbons AB v. United States, 365 F. Supp. 3d 
1323 (CIT 2019) (Jacobi AR7 III).
    \17\ Id. at 12-17.
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    On October 24, 2018, Commerce filed Remand III with the Court.\18\ 
Commerce selected, under protest, Indonesia as the primary surrogate 
country and revisited the selected SV for carbonized materials, while 
calculating the financial ratios using the viable Philippine financial 
statements on the record, in addition to selecting new SVs for other 
relevant factors of production.\19\ As a result, Commerce revised its 
SV for financial ratios and carbonized materials.\20\ Consequently, 
Jacobi's final margin was revised to $0.12/kg.\21\ The separate rate 
was revised to $0.12/kg for: (1) Beijing Pacific; (2) CA Tianjin; (3) 
Yunguang; (4) Jilin Bright; (5) Cherishmet; (6) Huahui; (7) Ningxia 
Mineral; (8) Shanxi DMD; (9) Shanxi Technology; (10) Sincere; (11) 
Tancarb; and (12) Maijin.\22\ Commerce used the same methodology for 
calculating the separate rate that was used in AR7 Final Results and 
Remand II, discussed above. On December 17, 2019, the Court sustained 
Remand III in Jacobi AR7 IV.\23\
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    \18\ See Jacobi Carbons AB et al. v. United States, Consol. 
Court No. 15-00286, Slip Op. 19-27, Final Results of Redetermination 
Pursuant to Court Remand, dated June 17, 2019 (Remand III).
    \19\ Id. at 5-12.
    \20\ Id.
    \21\ See Remand III at 25.
    \22\ Id. at 26.
    \23\ See Jacobi AR7 IV, Consol. Court No. 15-00286, Slip Op. 19-
159 (CIT 2019).
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Timken Notice

    In its decision in Timken,\24\ as clarified by Diamond 
Sawblades,\25\ the Court of Appeals for the Federal Circuit held that, 
pursuant to section 516A(e) of the Tariff Act of 1930, as amended (the 
Act), Commerce must publish a notice of a court decision that is not 
``in

[[Page 71371]]

harmony'' with a Commerce determination and must suspend liquidation of 
entries pending a ``conclusive'' court decision. The Court's December 
17, 2019, judgment sustaining Remand III in Jacobi AR7 IV constitutes a 
final decision of the Court that is not in harmony with Commerce's AR7 
Final Results. This notice is published in fulfillment of the 
publication requirement of Timken. Accordingly, Commerce will continue 
the suspension of liquidation of the subject merchandise at issue 
pending expiration of the period to appeal or, if appealed, a final and 
conclusive court decision.
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    \24\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed. 
Cir. 1990) (Timken).
    \25\ See Diamond Sawblades Mfrs. Coalition v. United States, 626 
F.3d 1374 (Fed. Cir. 2010) (Diamond Sawblades).
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Amended Final Results

    Because there is now a final court decision, Commerce amends the 
AR7 Final Results with respect to the companies identified below. Based 
on Remand III, as sustained by the Court in Jacobi AR7 IV, the revised 
weighted-average dumping margins for the companies listed below during 
the period April 1, 2013 through March 31, 2014, are as follows:

------------------------------------------------------------------------
                                                   Margin (dollars per
                   Exporter                          kilogram) \26\
------------------------------------------------------------------------
Jacobi Carbons AB.............................                      0.12
Beijing Pacific Activated Carbon Products Co.,                      0.12
 Ltd..........................................
Carbon Activated Tianjin Co., Ltd.............                      0.12
Datong Municipal Yunguang Activated Carbon                          0.12
 Co., Ltd.....................................
Jilin Bright Future Chemicals Company, Ltd....                      0.12
Ningxia Guanghua Cherishmet Activated Carbon                        0.12
 Co., Ltd.....................................
Ningxia Huahui Activated Carbon Co., Ltd......                      0.12
Ningxia Mineral and Chemical Limited..........                      0.12
Shanxi DMD Corporation........................                      0.12
Shanxi Industry Technology Trading Co., Ltd...                      0.12
Shanxi Sincere Industrial Co., Ltd............                      0.12
Tancarb Activated Carbon Co., Ltd.............                      0.12
Tianjin Maijin Industries Co., Ltd............                      0.12
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    In the event that the CIT's ruling is not appealed or, if appealed, 
is upheld by a final and conclusive court decision, Commerce will 
instruct U.S. Customs and Border Protection to assess antidumping 
duties on unliquidated entries of subject merchandise produced and/or 
exported by the companies identified above using the assessment rates 
calculated by Commerce in the remand redeterminations, as listed above.
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    \26\ In the second administrative review, Commerce determined 
that it would calculate per-unit assessment and cash deposit rates 
for all future reviews. See Certain Activated Carbon from the 
People's Republic of China: Final Results and Partial Rescission of 
Second Antidumping Duty Administrative Review, 75 FR 70208, 70211 
(November 17, 2010); see also AR7 Final Results, 80 FR at 61174 
n.21.
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Cash Deposit Requirements

    Because there have been subsequent administrative reviews for the 
companies identified above, the cash deposit rates will remain the 
rates established in the most recently-completed AR11 Final Results, 
which is $0.89/kg for Jacobi, $1.02/kg for CA Tianjin, and $0.89/kg for 
Beijing Pacific, Yunguang, Jilin Bright, Cherishmet, Huahui, Ningxia 
Mineral, Shanxi DMD, Shanxi Technology, Sincere, Tancarb, and 
Maijin.\27\
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    \27\ See Certain Activated Carbon from the People's Republic of 
China: Final Results of Antidumping Duty Administrative Review; 
2017-2018, 84 FR 68881 (December 17, 2019) (AR11 Final Results).
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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: December 20, 2019.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2019-28127 Filed 12-26-19; 8:45 am]
 BILLING CODE 3510-DS-P