[Federal Register Volume 85, Number 91 (Monday, May 11, 2020)]
[Notices]
[Pages 27713-27715]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-10071]
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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 April 23, 2020, the Court of International Trade (the
Court) issued final judgment in Jacobi Carbons AB et al. v. United
States, Consol. Court No. 16-00185, sustaining the Department of
Commerce's (Commerce's) final results of redetermination pursuant to
remand pertaining to the eighth 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, 2014 through
March 31, 2015. Consistent with the decision of the United States Court
of Appeals for the Federal Circuit (Federal Circuit) in Timken Co. v.
United States (Fed. Cir. 1990) (Timken), as clarified by Diamond
Sawblades Mfrs. Coalition v. United States (Fed. Cir. 2010) (Diamond
Sawblades), 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.
DATES: Applicable April 23, 2020.
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 September 8, 2016, Commerce issued its decision in Certain
Activated Carbon from the People's Republic of China: Final Results of
Antidumping Duty Administrative Review; 2014-2015, 81 FR 62088
(September 8, 2016) (AR8 Final Results) and accompanying Issues and
Decisions Memorandum (IDM). Jacobi Carbons AB (Jacobi),\1\ a mandatory
respondent, and Jacobi Carbons, Inc., its affiliated U.S. importer of
subject merchandise, challenged certain aspects of the AR8 Final
Results. On June 20, 2017, the Court in Jacobi AR8 I granted Commerce's
request for a voluntary remand of AR8 Final Results to reconsider its
determinations regarding the economic comparability and significant
producer aspects of its surrogate country selection methodology
(specifically, its determinations regarding economic comparability
generally and significant production of comparable merchandise by
Thailand in particular).\2\ In granting this remand, the Court also
directed Commerce to reconsider the separate rate assigned to the non-
mandatory respondents in accordance with any redetermination of the
antidumping margin assigned to the mandatory respondent Jacobi.\3\
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\1\ 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); 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); 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); 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).
\2\ See Jacobi Carbons AB et al. v. United States, Consol. Court
No. 16-00185 (June 20, 2017), ECF 77 (Jacobi AR8 I).
\3\ Id. at 6.
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On September 1, 2017, Commerce filed Remand I with the Court.\4\
Based on Jacobi AR8 I, which had ordered Commerce to: (1) Further
explain Commerce's determination regarding Thailand's economic
comparability with China; and (2) reconsider and further explain
Commerce's determination that Thailand is a significant producer of
activated carbon, Commerce addressed and clarified these issues without
making any changes to the margin calculations for Jacobi.\5\
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\4\ See Jacobi Carbons AB et al. v. United States, Consol. Court
No. 16-00185, Final Results of Redetermination Pursuant to Court
Remand, dated September 1, 2017 (Remand I).
\5\ See Remand I at 1-2, 39-40.
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On April 19, 2018, the Court in Jacobi AR8 II \6\ remanded six
issues to
[[Page 27714]]
Commerce: (1) To further explain or reconsider Commerce's determination
that Thailand is a significant producer of activated carbon; \7\ (2) to
reconsider or further explain Commerce's position with respect to
whether the proposed carbonized material surrogate value (SV)
represents commercial quantities and, if appropriate, to reconsider its
carbonized material SV selection; \8\ (3) to reconsider or further
explain Commerce's position with respect to proposed hydrochloric acid
(HCl) benchmarks and, if appropriate, to reconsider its HCl SV
selection; \9\ (4) to reconsider or further explain Commerce's position
with respect to proposed coal tar benchmarks and, if appropriate, to
reconsider its coal tar SV selection; \10\ (5) to further explain or
reconsider Commerce's determination that the Thai financial statements
used in the final results contain evidence of a countervailable subsidy
or otherwise provide suitable surrogate financial data, and to
reevaluate the relative merits of each proposed source of financial
ratios; \11\ and (6) to further explain and reconsider Commerce's
value-added tax (VAT) methodology and calculation with respect to
Jacobi, including addressing evidence suggesting Jacobi's ability to
offset input VAT against output VAT collected from foreign customers,
whether the VAT adjustment is properly made on the basis of an
estimated customs value instead of a reported free-on-board (FOB)
value, and the evidence supporting the rejection of the calculation
methodology proposed by Datong Juqiang Activated Carbon Co., Ltd.
(Datong Juqiang).\12\ The Court also directed Commerce to reconsider
the separate rate assigned to the non-mandatory respondents in
accordance with any redetermination of the antidumping margin assigned
to Jacobi.\13\ Further, on August 22, 2018, the Court also directed
Commerce to consider CIT Slip Opinion No. 18-97 entered in Aristocraft
of America LLC v. United States, CIT 15-00307, 2018 WL 3816781 (not
reported in Fed Reporter) (CIT August 9, 2018) as it relates to the
Chinese irrecoverable VAT.\14\
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\6\ See Jacobi Carbons AB et al. v. United States et al., 313 F.
Supp. 3d 1344 (CIT 2018) (Jacobi AR8 II).
\7\ See Jacobi AR8 II at 23-24.
\8\ Id. at 29-31.
\9\ Id. at 36.
\10\ Id. at 42-44.
\11\ Id. at 47-48.
\12\ Id. at 50-51.
\13\ Id. at 52.
\14\ See Jacobi Carbons AB et al. v. United States et al., Ct.
No. 16-00185, ECF No. 120 (August 22, 2018).
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On October 23, 2018, Commerce filed Remand II with the Court.\15\
Commerce affirmed its determination that Thailand is a significant
producer of comparable merchandise and its carbonized material and HCl
SV selections. Additionally, Commerce reconsidered its selection of
surrogate financial statements, the coal tar SV, and the VAT
calculation methodology. Consequently, Commerce made changes to the
margin calculations for Jacobi, as well as to the margin calculations
for the separate rate companies. Accordingly, Jacobi's final margin was
revised to $0.44/kg. The separate rate was revised to $0.34/kg for: (1)
Beijing Pacific Activated Carbon Products Co., Ltd.; (2) Datong
Municipal Yunguang Activated Carbon Co., Ltd.; (3) Jilin Bright Future
Chemicals Co., Ltd.; (4) Ningxia Guanghua Cherishmet Activated Carbon
Co., Ltd.; (5) Ningxia Huahui Activated Carbon Co., Ltd.; (6) Ningxia
Mineral and Chemical Ltd.; (7) Shanxi DMD Corp.; (8) Shanxi Industry
Technology Trading Co., Ltd.; (9) Shanxi Sincere Industrial Co., Ltd.;
(10) Tianjin Channel Filters Co., Ltd.; and (11) Tianjin Maijin
Industries Co., Ltd. Commerce used the same methodology for calculating
the separate rate that was used in AR8 Final Results.\16\
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\15\ See Jacobi Carbons AB et al. v. United States, Consol.
Court No. 16-00185, Slip Op. 18-47, Final Results of Redetermination
Pursuant to Court Remand, dated October 23, 2018 (Remand II).
\16\ See Remand II at 52.
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On March 5, 2019, the Court in Jacobi AR8 III remanded to Commerce
its determination that Thailand is a significant producer of comparable
merchandise and directed Commerce to reconsider its selection of a
primary surrogate country.\17\ The Court further ordered that Commerce
must identify a surrogate country, whether from its list of countries
at the same level of economic development as the People's Republic of
China (China) or another country at a comparable level of economic
development not on the list, which meets the statutory criteria and is
supported by substantial evidence.\18\ Further, the Court instructed
that Commerce must revisit the SVs for carbonized materials and HCL
because Commerce justified the selection of these SVs substantially on
the basis that they are from Thailand, the primary surrogate
country.\19\ The Court also directed Commerce to reconsider the
separate rate assigned to the non-mandatory respondents in accordance
with any redetermination of the antidumping margin assigned to
Jacobi.\20\ In accordance with Jacobi AR8 III, Commerce reconsidered
its selection of the primary surrogate country, and selected a new
primary surrogate country (Malaysia).\21\ As a result of selecting a
new primary surrogate country, Commerce revisited the SV selection for
all inputs, including the SVs for carbonized materials and HCl that the
Court specifically directed Commerce to reconsider.\22\ Consequently,
Commerce made changes to the margin calculations for Jacobi, as well as
to the margin calculations for the separate rate companies. Therefore,
Jacobi's final margin was revised to $0.51/kg. The separate rate was
revised to $0.40/kg for: (1) Beijing Pacific Activated Carbon Products
Co., Ltd.; (2) Datong Municipal Yunguang Activated Carbon Co., Ltd.;
(3) Jilin Bright Future Chemicals Co., Ltd.; (4) Ningxia Guanghua
Cherishmet Activated Carbon Co., Ltd.; (5) Ningxia Huahui Activated
Carbon Co., Ltd.; (6) Ningxia Mineral and Chemical Ltd.; (7) Shanxi DMD
Corp.; (8) Shanxi Industry Technology Trading Co., Ltd.; (9) Shanxi
Sincere Industrial Co., Ltd.; (10) Tianjin Channel Filters Co., Ltd.;
and (11) Tianjin Maijin Industries Co., Ltd. Commerce used the same
methodology for calculating the separate rate that was used in AR8
Final Results.\23\
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\17\ Jacobi Carbons AB et al. v. United States et al., 365
F.Supp.3d 1344 (CIT 2018) (Jacobi AR8 III) at 6.
\18\ Id. at 16.
\19\ Id. at 6, 16.
\20\ Id. at 36.
\21\ See Jacobi Carbons AB et al. v. United States, Consol.
Court No. 16-00185, Slip Op. 19-28, Final Results of Redetermination
Pursuant to Court Remand, dated June 17, 2019 (Remand III) at 2.
\22\ Id. at 2, 3.
\23\ See Remand III at 28.
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On December 17, 2019, the Court in Jacobi AR8 IV remanded to
Commerce its Remand III redetermination to reconsider or further
address the inconsistencies between its statements in the third draft
results of redetermination and those in its third final results of
redetermination regarding the viability of the various carbonized
material data sources on the record.\24\ The Court ordered Commerce to
more fully address arguments that it did not directly or fully analyze
the commercial significance of the Malaysian import quantity or account
for Commerce's preference for selecting SVs from a single surrogate
country and address arguments made by parties based on Luoyang
Bearing.\25\ In accordance with Jacobi AR8 IV, Commerce reconciled
inconsistencies between the third draft and final results of
redetermination regarding Commerce's selection of the carbonized
materials SV, without making any
[[Page 27715]]
changes to the determination in Remand III as a result of this further
analysis.
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\24\ Jacobi Carbons AB et al. v. United States et al., Consol.
Court No. 16-00185, Slip Op. 19-160 (CIT December 17, 2019) (Jacobi
AR8 IV) at 10.
\25\ Id.; see also Luoyang Bearing Corp. (Grp.) v. United
States, 358 F. Supp. 2d 1296 (CIT 2005) (Luoyang Bearing).
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On March 20, 2020, Commerce filed Remand IV with the Court.\26\ On
April 23, 2020, the Court sustained Remand IV in Jacobi AR8 V.\27\
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\26\ See Jacobi Carbons AB et al. v. United States, Consol.
Court No. 16-00185, Slip Op. 19-160, Final Results of
Redetermination Pursuant to Court Remand, dated March 20, 2020
(Remand IV).
\27\ See Jacobi Carbons AB v. United States, Consol. Court No.
16-00815, Slip Op. 20-55 (CIT 2020) (Jacobi AR8 V).
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Timken Notice
In its decision in Timken,\28\ as clarified by Diamond
Sawblades,\29\ 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 harmony'' with a
Commerce determination and must suspend liquidation of entries pending
a ``conclusive'' court decision. The Court's April 23, 2020 judgment in
Jacobi AR8 IV constitutes a final decision of the Court that is not in
harmony with Commerce's AR8 Final Results. This notice is published in
fulfillment of the publication requirement of Timken.
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\28\ See Timken Co. v. United States, 893 F.2d 337, 341 (Fed.
Cir. 1990) (Timken).
\29\ 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
AR8 Final Results with respect to the companies identified below. Based
on Remand III, as affirmed by the Court in Jacobi AR8 IV, the revised
weighted-average dumping margins for the companies listed below during
the period April 1, 2014 through March 31, 2015 are as follows:
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\30\ 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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Margin (dollars per
Exporter kilogram) 30
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Jacobi Carbons AB......................... 0.51
Beijing Pacific Activated Carbon Products 0.40
Co., Ltd.................................
Datong Municipal Yunguang Activated Carbon 0.40
Co., Ltd.................................
Jilin Bright Future Chemicals Company, Ltd 0.40
Ningxia Guanghua Cherishmet Activated 0.40
Carbon Co., Ltd..........................
Ningxia Huahui Activated Carbon Co., Ltd.. 0.40
Ningxia Mineral and Chemical Limited...... 0.40
Shanxi DMD Corporation.................... 0.40
Shanxi Industry Technology Trading Co., 0.40
Ltd......................................
Shanxi Sincere Industrial Co., Ltd........ 0.40
Tianjin Channel Filters Co., Ltd.......... 0.40
Tianjin Maijin Industries Co., Ltd........ 0.40
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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. In the
event that the Court'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 based on the revised
dumping margins listed above.
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, and $0.89/kg for Beijing Pacific
Activated Carbon Products Co., Ltd. Ningxia Guanghua Cherishmet
Activated Carbon Co., Ltd., Ningxia Huahui Activated Carbon Co., Ltd.,
Ningxia Mineral & Chemical Limited, and Shanxi Sincere Industrial Co.,
Ltd.\31\ For the companies that Commerce determined had no shipments in
AR11 Final Results, the cash deposit rates will remain the rates
established in the most recently-completed AR9 Final Results,\32\ which
is $0.22/Kg for Datong Municipal Yunguang Activated Carbon Co., Ltd.,
Jilin Bright Future Chemicals Company, Ltd., Shanxi Industry Technology
Trading Co., Ltd., and Tianjin Channel Filters Co., Ltd. For the
companies determined not to be eligible for a separate rate in
subsequent reviews, i.e., Shanxi DMD Corporation \33\ and Tianjin
Maijin Industries Co., Ltd.,\34\ the cash deposit rate will remain the
rate established for the China-wide entity.
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\31\ 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).
\32\ See Certain Activated Carbon from the People's Republic of
China: Final Results of Antidumping Duty Administrative Review;
2015-2016, 82 FR 51607 (November 7, 2017) (AR9 Final Results).
\33\ See AR9 Final Results, 82 FR at 51611.
\34\ See Certain Activated Carbon from the People's Republic of
China: Final Results of Antidumping Duty Administrative Review;
2015-2016, 83 FR 58229, 58231 (November 19, 2018) (AR10 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: May 4, 2020.
Jeffrey I. Kessler,
Assistant Secretary for Enforcement and Compliance.
[FR Doc. 2020-10071 Filed 5-7-20; 11:15 am]
BILLING CODE 3510-DS-P