Jacobi Carbons Ab, Jacobi Carbons, Inc., Ningxia Guanghua Cherishmet Activated… v. United States, Calgon Carbon Corporation, Norit Americas, Inc.

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACOBI CARBONS AB, JACOBI CARBONS, INC.,
NINGXIA GUANGHUA CHERISHMET ACTIVATED
CARBON CO., LTD., CHERISHMET INC., BEIJING
PACIFIC ACTIVATED CARBON PRODUCTS CO.,
LTD., , DATONG MUNICIPAL YUNGUANG
ACTIVATED CARBON CO., LTD., SHANXI
INDUSTRY TECHNOLOGY TRADING CO., LTD.,
CARBON ACTIVATED CORPORATION, CAR GO
WORLDWIDE, INC., TANGSHAN SOLID CARBON
CO., LTD.,
Plaintiffs-Appellants
v.
UNITED STATES, CALGON CARBON
CORPORATION, NORIT AMERICAS, INC.,
Defendants-Appellees
______________________
2014-1752, 2014-1753, 2014-1754, 2014-1756
______________________
Appeals from the United States Court of International
Trade in Nos. 1:12-cv-00365-RKE, 1:12-cv-00372-RKE,
1:12-cv-00377-RKE, 1:12-cv-00396-RKE, 1:12-cv-00401-
RKE, Senior Judge Richard K. Eaton.
______________________
Decided: August 3, 2015
______________________

-- 1 of 29 --

JACOBI CARBONS AB v. US 2
D ANIEL L. P ORTER , Curtis, Mallet-Prevost, Colt &
Mosle LLP, Washington, DC, argued for plaintiffs-
appellants Jacobi Carbons AB, Jacobi Carbons, Inc. Also
represented by CHRISTOPHER D UNN, J AMES P. D URLING,
CLAUDIA D ENISE HARTLEBEN.
K AVITA MOHAN, Grunfeld, Desiderio, Lebowitz, Sil-
verman & Klestadt LLP, Washington, DC, argued for
plaintiffs-appellants Ningxia Guanghua Cherishmet
Activated Carbon Co., Ltd., et al. Also represented by
F RANCIS J. SAILER , MARK P ARDO, ANDREW T HOMAS
SCHUTZ.
N ANCY N OONAN, Arent Fox, LLP, Washington, DC, for
plaintiffs-appellants Carbon Activated Corporation, Car
Go Worldwide, Inc.
G REGORY S. MENEGAZ, DeKieffer & Horgan, PLLC,
Washington, DC, for plaintiff-appellant Tangshan Solid
Carbon Co., Ltd. Also represented by J AMES K EVIN
HORGAN, J OHN J. K ENKEL .
ANTONIA RAMOS S OARES , Commercial Litigation
Branch, Civil Division, United States Department of
Justice, Washington, DC, argued for defendant-appellee
United States. Also represented by BENJAMIN C. MIZER,
J EANNE E. D AVIDSON, REGINALD T. BLADES , J R.; D EVIN S.
SIKES , Office of the Chief Counsel for Import Administra-
tion, United States Department of Commerce, Washing-
ton, DC.
ROBERT ALAN L UBERDA , Kelley Drye & Warren, LLP,
Washington, DC, argued for defendants-appellees Calgon
Carbon Corporation, Norit Americas, Inc. Also represent-
ed by D AVID A. HARTQUIST , J OHN M. H ERRMANN.
______________________
Before M OORE, BRYSON, and CHEN, Circuit Judges.

-- 2 of 29 --

JACOBI CARBONS AB v. US 3
Opinion for the court filed by Circuit Judge MOORE.
Dissenting opinion filed by Circuit Judge B RYSON.
MOORE, Circuit Judge.
Appellants Jacobi Carbons AB and Jacobi Carbons,
Inc. (collectively, “Jacobi”); Ningxia Guanghua Cherish-
met Activated Carbon Co. (“GHC”), Cherishmet Inc.,
Beijing Pacific Activated Carbon Products Co., Datong
Municipal Yunguang Activated Carbon Co. (“Datong
Municipal”), and Shanxi Industry Technology Trading Co.
(“Shanxi”) (collectively, “Cherishmet”); and Carbon Acti-
vated Corp., Car Go Worldwide, Inc., and Tangshan Solid
Carbon Co. (“Tangshan”) (collectively, “CAC”) appeal the
decision of the United States Court of International Trade
(“CIT”) sustaining the U.S. Department of Commerce’s
(“Commerce”) Final Results in the fourth administrative
review of the antidumping duty order on certain activated
carbon from the People’s Republic of China (“PRC”) cover-
ing the period April 1, 2010 through March 31, 2011. For
the reasons set forth below, we affirm.
BACKGROUND
Congress has provided for the imposition of antidump-
ing duties on foreign merchandise sold, or likely to be
sold, at less than fair value in the United States. 19
U.S.C. § 1673. Commerce determines antidumping duties
based on the amount by which the “normal value” of
merchandise (its price in its home market) exceeds its
“export price” (its price in the United States). Id.
§§ 1677(35)(A), 1677b(a) (2012). For nonmarket econo-
mies like the PRC, Commerce calculates normal value
based on “the value of the factors of production utilized in
producing the merchandise and . . . an [added] amount for
general expenses and profit plus the cost of containers,
coverings, and other expenses.” Id. § 1677b(c)(1)(B).
On April 27, 2007, Commerce issued an antidumping
duty order covering certain activated carbon from the

-- 3 of 29 --

JACOBI CARBONS AB v. US 4
PRC. Certain Activated Carbon from the People’s Repub-
lic of China, 72 Fed. Reg. 20,988 (Dep’t of Commerce
Apr. 27, 2007). After receiving requests seeking adminis-
trative review of the order, Commerce initiated the sub-
ject review on May 27, 2011. See Initiation of
Antidumping and Countervailing Duty Administrative
Reviews, 76 Fed. Reg. 30,912, 30,913–16 (Dep’t of Com-
merce May 27, 2011). Commerce selected appellants
Jacobi Carbons AB and GHC as two of the mandatory
respondents for individual examination during the admin-
istrative review. Appellants Shanxi, Datong Municipal,
and Tangshan subsequently filed separate rate certifica-
tions.
Commerce published the preliminary results of the
review on May 4, 2012. Certain Activated Carbon from
the People’s Republic of China, 77 Fed. Reg. 26,496 (Dep’t
of Commerce May 4, 2012) (“Preliminary Results”). For
the Preliminary Results, Commerce selected Thailand as
the primary surrogate country and therefore used Thai
data to calculate surrogate values for the respondents’
factors of production. Commerce calculated weighted-
average dumping margins of $1.49 per kilogram for Jacobi
Carbons AB, $1.07 per kilogram for GHC, and $1.34 per
kilogram for the separate rate companies.
Following publication of the Preliminary Results, the
respondents placed additional data from the Philippines
on the record and urged Commerce to use this data to
value the major material inputs. Jacobi Carbons AB v.
United States, 992 F. Supp. 2d 1360, 1364 (Ct. Int’l Trade
2014). Commerce published the final results of the review
and the accompanying Issues and Decision Memorandum
on November 9, 2012. Certain Activated Carbon from the
People’s Republic of China, 77 Fed. Reg. 67,337 (Dep’t of
Commerce Nov. 9, 2012) (“Final Results”); Certain Acti-
vated Carbon from the People’s Republic of China
A-570-904 (Issues and Decision Memorandum for the
Final Results of the Fourth Antidumping Duty Adminis-

-- 4 of 29 --

JACOBI CARBONS AB v. US 5
trative Review) (Dep’t of Commerce Nov. 9, 2012) (“Issues
and Decisions Memorandum”) (J.A. 371–400). In the
Final Results, Commerce selected the Philippines over
Thailand as the primary surrogate country and used
Philippine data, rather than Thai data, to calculate the
surrogate values for many of the respondents’ factors of
production, including carbonized material and truck
freight. In light of these changes, Commerce calculated
weighted-average dumping margins of $0.44 per kilogram
for Jacobi Carbons AB, $2.11 per kilogram for GHC, and
$1.04 per kilogram for the separate rate companies.
Appellants challenged the Final Results at the CIT,
arguing that Commerce did not use the best available
information when it calculated the surrogate values for
carbonized material and truck freight. The CIT disa-
greed, finding that substantial evidence supported each of
Commerce’s surrogate value determinations. Jacobi
Carbons, 992 F. Supp. 2d at 1374, 1377. Because the CIT
found that substantial evidence supported Commerce’s
surrogate value determinations, it sustained the agency’s
separate rate calculation. Id. at 1377. This appeal fol-
lowed. We have jurisdiction under 28 U.S.C. § 1295(a)(5).
D ISCUSSION
We review decisions of the CIT de novo, applying the
same standard used by the CIT. Downhole Pipe & Equip.,
L.P. v. United States, 776 F.3d 1369, 1373 (Fed. Cir.
2015). In antidumping duty proceedings, we uphold
Commerce’s determinations unless they are “unsupported
by substantial evidence on the record, or otherwise not in
accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
“Substantial evidence is more than a mere scintilla,” and
“such relevant evidence as a reasonable mind might
accept as adequate to support a conclusion.” Consol.
Edison Co. of N.Y. v. NLRB, 305 U.S. 197, 229 (1938).
“Our review is limited to the record before Commerce in
the particular review proceeding at issue,” Qingdao Sea-

-- 5 of 29 --

JACOBI CARBONS AB v. US 6
Line Trading Co. v. United States, 766 F.3d 1378, 1385
(Fed. Cir. 2014), and the burden of creating this record
lies with the interested parties, not with Commerce, QVD
Food Co. v. United States, 658 F.3d 1318, 1324 (Fed. Cir.
2011).
To determine the surrogate value for a factor of pro-
duction from a nonmarket economy like the PRC, Con-
gress directed Commerce to use the “best available
information” from a comparable market economy country
or countries. 19 U.S.C. § 1677b(c)(1)(B). “Commerce has
broad discretion to determine what constitutes the best
available information, as this term is not defined by
statute.” Qingdao, 766 F.3d at 1386. In doing so, it is
Commerce’s practice to choose, where possible, data that
reflects a broad market average and is publicly available,
contemporaneous with the period of review, specific to the
input in question, and exclusive of taxes on exports. See
QVD Food Co. v. United States, 721 F. Supp. 2d 1311,
1315 (Ct. Int’l Trade 2010), aff’d, 658 F.3d 1318 (Fed. Cir.
2011).
I. Surrogate Value for Carbonized Material
Carbonized material is a material input used to pro-
duce activated carbon. To determine the surrogate value
for carbonized material, Commerce considered two data
sources: (1) Global Trade Atlas (“GTA”) statistics for
Philippine imports categorized under Harmonized Tariff
Schedule (“HTS”) 4402, “Wood Charcoal (Including Shell
or Nut Charcoal), Whether or Not Agglomerated,” and
(2) pricing data for coconut charcoal contained in Cocom-
munity, a monthly publication of the Asian and Pacific
Coconut Community organization.1 Commerce found that
1 Commerce also considered a third data source not
at issue on appeal consisting of Thai import statistics.
Issues & Decision Memo. at 17 (J.A. 387).

-- 6 of 29 --

JACOBI CARBONS AB v. US 7
the Cocommunity data was flawed for two reasons. First,
Commerce found the prices were not representative of the
Philippines as a whole because the data was from the
Visayas region of the Philippines. Issues & Decision
Memo. at 18 (J.A. 388). Second, Commerce found that it
was not clear whether the Cocommunity prices were tax
and duty exclusive. Id. Commerce therefore used the
Philippine import data from the GTA to calculate the
surrogate value for carbonized material.
Appellants argue that substantial evidence does not
support Commerce’s selection of the Philippine import
data over the Cocommunity data. They argue the Philip-
pine import data is flawed because it is less specific to the
input in question than the Cocommunity data and be-
cause it results in an aberrationally high surrogate value
compared to the surrogate value of carbonized material in
prior reviews of the subject merchandise. Appellants also
argue that the record did not support Commerce’s criti-
cisms of the Cocommunity data. Finally, appellants argue
that by selecting the Philippine import data over the
domestic Philippine Cocommunity data, Commerce violat-
ed its preference for using domestic data. Although a
close case, substantial evidence supported Commerce’s
selection of the Philippine import data as the best availa-
ble information.
A. Specificity
Appellants argue that the Philippine import data is
less specific to the carbonized material used to produce
the subject merchandise than the Cocommunity data. To
determine whether a data source is product specific,
Commerce compares the products covered by the data
source with the material input in question.
1. Material Input
The material input in question is carbonized material.
The record shows that Jacobi’s and Cherishmet’s suppli-

-- 7 of 29 --

JACOBI CARBONS AB v. US 8
ers used carbonized material made from coal to produce
the subject merchandise. J.A. 110, 133 (questionnaire
responses from two of Jacobi’s suppliers); J.A. 150, 155–
56, 290–301 (Cherishmet’s U.S. sales database during the
period review); see also Jacobi’s Br. 6. The record also
shows that one of Jacobi’s suppliers used carbonized
material made from coconut shell charcoal to produce the
subject merchandise, in addition to carbonized material
made from coal. J.A. 111–15, 765–68. There is no evi-
dence that any of Jacobi’s or Cherishmet’s suppliers used
carbonized material made of wood to produce the subject
merchandise.2 Thus, it appears based on the record that
the material input in question is carbonized material
made of coal and coconut shell charcoal.
2. Data Sources
The Cocommunity data is limited to coconut shell
charcoal, while the Philippine import data includes all
imports to the Philippines categorized under HTS 4402,
“Wood Charcoal (Including Shell or Nut Charcoal),
Whether or Not Agglomerated”—a broader basket catego-
ry consisting of carbonized material made from wood and
coconut shell.
2 The CIT erred when it found that Jacobi and
Cherishmet produced the subject merchandise during the
period of review using carbonized material made of wood.
See Jacobi Carbons, 992 F. Supp. 2d at 1372–73. Alt-
hough it is possible to produce activated carbon using
carbonized material made of wood, id. (citing J.A. 102,
260), the record indicates that Jacobi and Cherishmet
used only carbonized material made from coal and coco-
nut shell charcoal, not wood, to produce the activated
carbon shipped to the United States during the review
period, see J.A. 110–15, 133, 150, 155–56, 290–301, 765–
68. The inputs used to produce the subject merchandise
are the inputs most relevant to this review.

-- 8 of 29 --

JACOBI CARBONS AB v. US 9
Appellants argue that the Philippine import data is
not specific because there were no imports of coconut shell
charcoal to the Philippines during the review period.
Appellants contend that HTS 4402 consists of four sub-
categories, one of which—HTS 4402.00.00.01 (“Of Coconut
Shell, Not Agglomerated”)—covers coconut shell char-
coal.3 Jacobi’s Br. 32; Cherishmet’s Br. 30–31. Appel-
lants further contend that the Philippine import data in
the HTS 4402.00.00.01 subcategory indicates that there
were zero imports of coconut shell charcoal to the Philip-
pines during the review period. Thus, appellants argue
that although in theory the Philippine import data in-
cludes coconut shell charcoal, the pricing data for the
review period is limited to wood charcoal, not coconut
shell charcoal. This is a new argument not made, in any
meaningful or detailed sense, to Commerce below.
The unsupported, conclusory statement by Jacobi
made below that there was “no data available for coconut
shell charcoal from the Philippines imported under HTS
4402.00.10,” J.A. 177, is insufficient. Jacobi presented
Commerce with no evidence supporting the proposition
that there were no imports of coconut shell charcoal to the
Philippines during the period of review. Indeed, Jacobi
incorrectly transcribed the HTS number, stating there
was no data available for coconut shell charcoal from the
Philippines under “HTS 4402.00.10” instead of HTS
4402.00.00.01, so Commerce could not verify Jacobi’s
claim. This is compounded by the fact that the record
does not support appellants’ claim that HTS 4402 consists
of four ten-digit subcategories and that one of those
3 The other three categories that appellants con-
tend make up HTS 4402 are 4402.00.00.02 (“Of Wood, Not
Agglomerated”); 4402.00.00.03 (“Of Wood (Including of
Shell or Not Agglomerated)”); and 4402.00.00.04 (“Oth-
er”). Jacobi’s Br. 32; Cherishmet’s Br. 30–31.

-- 9 of 29 --

JACOBI CARBONS AB v. US 10
subcategories is HTS 4402.00.00.01. Rather, the record
indicates that HTS 4402 has only two subcategories,
neither of which is limited to coconut shell charcoal:
4402.10.00 (“Of bamboo”) and 4402.90.00 (“Other”). J.A.
255. Thus, Jacobi presented to Commerce a single con-
clusory sentence which inaccurately references an HTS
category, with no record evidence or data to support its
claim. Without any record evidence that there were zero
imports of coconut shell charcoal to the Philippines during
the period of review under HTS 4402.00.00.01, or even
that HTS 4402.00.00.01 existed, Commerce could not
evaluate Jacobi’s statement that there was “no data
available for coconut shell charcoal from the Philippines.”
It was Jacobi’s and Cherishmet’s responsibility to build an
adequate record before Commerce, so any failure of proof
lies with them. QVD Food, 658 F.3d at 1324. We will not
reverse Commerce’s decision about the best available
information on the basis of an argument not made and
evidence not presented on the administrative record.
Qingdao, 766 F.3d at 1385 (“Our review is limited to the
record before Commerce in the particular review proceed-
ing at issue.”).
3. Commerce’s Past Practice
Appellants argue that Commerce’s past practice
demonstrates that coconut shell charcoal is a better
match for coal-based carbonized material than the broad-
er HTS 4402 category of wood charcoal. In past reviews of
the instant antidumping duty order, Commerce found
coconut shell charcoal comparable to coal-based carbon-
ized material. For example, in the investigation to de-
termine whether to impose antidumping duties on the
subject merchandise, Commerce used coconut shell char-
coal import data to value carbonized material because the
“coconut shell charcoal value, although not identical to
the coal-based carbonized material used by respondents,
is comparable in that both products are a type of char-
coal.” Certain Activated Carbon from the People’s Repub-

-- 10 of 29 --

JACOBI CARBONS AB v. US 11
lic of China A-570-904 (Issues and Decision Memorandum
for the Final Determination in the Antidumping Duty
Investigation of Certain Activated Carbon from the PRC)
(Dep’t of Commerce Feb. 23, 2007) (J.A. 48). Similarly,
during the first period of review, Commerce wrote:
[C]oconut shell charcoal shares similar properties
with carbonized material and . . . those similar
properties are essential in the production of acti-
vated carbon. The expert’s report found that coal-
based carbonized materials used by Cherishmet
and coconut shell charcoal are similar in porosity
and adsorption, which are both properties essen-
tial in the production of activated carbon. Thus,
in this instance, between the two alternative . . .
HTS categories, “Other Cokes of Coal” and “Coco-
nut Shell Charcoal,” the Department determines
that . . . “Coconut Shell Charcoal” results in a bet-
ter, input-specific price for coal-based carbonized
materials.
Final Results of Redetermination Pursuant to Ct. Re-
mand at 10–11, Calgon Carbon Corp. v. United States,
No. 09-00524 (Ct. Int’l Trade July 26, 2011), ECF No. 36
(footnotes omitted) (J.A. 55–56). And during the third
period of review, Commerce explained that because “coco-
nut shell charcoal shares similar properties with carbon-
ized material and . . . those similar properties are
essential in the production of activated carbon,” it would
value carbonized material using imports categorized
under HTS category “Coconut Shell Charcoal,” instead of
HTS category “Other Cokes of Coal.” Certain Activated
Carbon from the People’s Republic of China A-570-904
(Issues and Decision Memorandum for the Final Results
of the Third Antidumping Duty Administrative Review)
(Dep’t of Commerce Oct. 24, 2011) (J.A. 158–61).
In these prior analyses, Commerce was choosing be-
tween coconut shell charcoal and the HTS category “Other

-- 11 of 29 --

JACOBI CARBONS AB v. US 12
Cokes of Coal” to find a comparable surrogate for coal-
based carbonized material. Commerce’s determination
that coconut shell charcoal is better than “Other Cokes of
Coal” does not mean that coconut shell data is better than
wood charcoal. Wood charcoal is also a type of charcoal
and can also be used to create the subject merchandise.
Thus for the same reasons articulated by Commerce in
the earlier periods of review, wood charcoal would be a
better surrogate than “Other Cokes of Coal.” There are no
express findings or comparisons between wood charcoal
and coconut shell charcoal, and this record does not
establish any such conclusions.
While coconut shell charcoal is more specific than
“Other Cokes of Coal,” the record does not compare coco-
nut shell charcoal and wood charcoal. Commerce’s past
practice does not demonstrate that coconut shell charcoal
is a better match for coal-based carbonized material than
the broader Philippine import data category, which in-
cludes wood charcoal and coconut shell charcoal.
4. Conclusion
Here, the material input in question is carbonized
material made of coal and coconut shell charcoal. With
respect to the coconut shell subset of this material input,
the Cocommunity data, which includes only coconut shell
charcoal, is more specific than the Philippine import data,
which includes other forms of wood charcoal in addition to
coconut shell charcoal. With regard to the carbonized
material made of coal, which constitutes the bulk of the
subject merchandise, there is no evidence on this record
comparing wood charcoal and coconut shell charcoal.
There are no findings nor have we been presented with
record evidence that coconut shell charcoal is a better
surrogate for coal-based carbonized material than wood
charcoal. Thus for the bulk of the imports at issue, there
is no proof that coconut shell charcoal is a better surro-
gate. Neither of these data sources is specific to carbon-

-- 12 of 29 --

JACOBI CARBONS AB v. US 13
ized material made of coal and Commerce’s past selection
of coconut shell charcoal as the best available surrogate
was based on a comparison with “Other Cokes of Coal,”
not wood charcoal. The imports at issue include coconut
shell charcoal and coal-based carbonized material. Once
again, we do not review Commerce’s determinations de
novo. We cannot conclude on this record that Commerce’s
decision that both data sources were specific to the inputs
in question was not supported by substantial evidence.
B. Aberrational Nature of Philippine Import Data
Cherishmet also faults the Philippine import data as
aberrational compared to the surrogate values for carbon-
ized material in prior reviews of the subject merchandise.
During this period of review, Commerce calculated a price
of $1,203.90 per metric ton of carbonized material based
on the Philippine import data. Cherishmet asserts that
Commerce priced the surrogate value of carbonized mate-
rial much lower in prior reviews:
Period of
Review Surrogate Value
1st $32.99/MT
2nd
$66.256/MT (coconut shell charcoal);
$435.62/MT (coal-based carbonized mate-
rial)
3rd $83.45/MT
Cherishmet’s Br. 32–33 (citations omitted). It argues that
the Cocommunity data, with a price of $255 per metric
ton, maps more closely to Commerce’s prior valuations of
carbonized material than the Philippine import data, with
a price almost five times as high.

-- 13 of 29 --

JACOBI CARBONS AB v. US 14
The surrogate values presented by Cherishmet sug-
gest that the Philippine import data is aberrational. And
Commerce may opt to disregard data where there is
record evidence that it is aberrational. Here, however, we
cannot conclude that Commerce should have disregarded
the Philippine import data as aberrational.
The government argues that there is an explanation
for the apparently aberrational nature of the Philippine
import data. Commerce selected India as the surrogate
country in the first three periods of review. See J.A. 733–
35. In the fourth period of review, Commerce found that
India was not at a comparable level of economic develop-
ment to the PRC, and therefore selected a different surro-
gate country. See id.; see also J.A. 94–96. Thus, the first
three surrogate values were calculated with reference to a
different level of economic development than the current
surrogate value.
Looking at the table above, it is not entirely clear
which measure is appropriate for comparison to deter-
mine whether the Philippine import data is aberrationally
high. Commerce’s price of $1203.90 is more than thirty
times more than the surrogate value calculated for the
first period of review ($32.99/MT) and nearly fifteen times
higher than the surrogate value calculated for the third
period of review ($83.45/MT). Both of these comparisons
lead toward a conclusion that the Philippine import data
is aberrational, and it seems unlikely that the switch from
India to the Philippines could account for this dramatic
change in pricing. However, in the second period of
review, Commerce separated the pricing for coconut shell
charcoal ($66.256/MT) and coal-based carbonized material
($435.62/MT). The price for coal-based carbonized mate-
rial is an order of magnitude higher than the price for
coconut shell charcoal. Given that the bulk of the imports
in question are produced using coal-based carbonized
material, the price from this review is only 2.8 times
higher than the surrogate value for coal-based carbonized

-- 14 of 29 --

JACOBI CARBONS AB v. US 15
material from the second period of review. Perhaps this
disparity would have been enough to cause Commerce to
reach a different conclusion regarding the best available
information. Or perhaps Commerce would have conclud-
ed that the Cocommunity data for coconut shell charcoal,
which was priced at $255/MT, was too low. Its prior
determination during the second period of review that
coal-based carbonized material was much more expensive
than coconut shell charcoal may have only reinforced its
conclusion here that the Philippine data was the best
available information. We do not know how Commerce
would have evaluated this complicated issue because it
was not raised below.
Neither Jacobi nor Cherishmet presented any evi-
dence or made any arguments that the Philippine import
data was aberrational during the administrative review.
This is another new argument made for the first time at
the CIT on judicial review of Commerce’s decision, not to
Commerce itself. If all of the arguments made on appeal
had been made to Commerce and the record made to
support them, Commerce may well have reached a differ-
ent conclusion regarding the best available information.
We will not create a new record, entertain new argu-
ments, and reverse Commerce on the basis of them.
C. Regional Data
Jacobi argues that substantial record evidence does
not support Commerce’s determination that the Cocom-
munity data describes “regional” prices from a single state
in the Philippines, not national prices. We disagree. The
record shows that the Cocommunity data covers only a
single region of the Philippines. The chart from which the
Cocommunity data is taken indicates that the price of
coconut shell charcoal is for “Philippines (Domestic),
Visayas, Buyer.” J.A. 191. The Visayas is one of three
principal geographical regions of the Philippines. By
contrast, other entries on the Cocommunity chart indicate

-- 15 of 29 --

JACOBI CARBONS AB v. US 16
that they are national, not regional. Id. (listing coconut
shell charcoal from “Sri Lanka (Domestic)” and desiccated
coconut from “Philippines (Domestic)”). This constitutes
substantial record evidence that the Cocommunity data is
regional, not national.
Appellants did not show in the record for this admin-
istrative review that the Cocommunity coconut shell
charcoal prices are representative, despite being regional.
Jacobi Carbons, 992 F. Supp. 2d at 1369. For example,
the record does not show that the Visayas region is a
substantial portion of the market for coconut shell char-
coal or that prices in the Visayas are reflective of the
national Philippine market. Without record evidence to
the contrary, we conclude that substantial evidence
supported Commerce’s finding that the Cocommunity
prices were less representative of a broad market average
than the Philippine import data.
D. Tax and Duty Exclusivity
Appellants challenge Commerce’s finding that the Co-
community data was flawed because there was no indica-
tion whether that data was free of taxes and duties. They
argue that the burden lay on Commerce to show that the
Cocommunity data was distorted by taxes and duties.
The government disagrees. We need not resolve the
parties’ dispute here. Even if Commerce erred when it
critiqued the Cocommunity data for lacking information
about whether the prices were tax and duty exclusive,
substantial evidence still supports the selection of the
Philippines import data.
E. Conclusion
Substantial evidence supports Commerce’s selection
of the Philippine import data to calculate the surrogate
value for carbonized material. Commerce was forced to
select between two flawed data sets, and selected the
Philippine import data because it was product-specific,

-- 16 of 29 --

JACOBI CARBONS AB v. US 17
publicly available, reflected a broad market average, and
was contemporaneous with the period of review.
Appellants fault Commerce for violating its preference
for using domestic data when it selected the Philippine
import data instead of the domestic Cocommunity data.
Commerce determines what constitutes the “best availa-
ble information” without reference to any such preference.
See Qingdao, 766 F.3d at 1386. (“Commerce generally
selects, to the extent practicable, surrogate values that
are publicly available, are product-specific, reflect a broad
market average, and are contemporaneous with the
period of review.”). At best, statements to the contrary
indicate that Commerce prefers domestic prices over
import prices “all else being equal.” Rhodia Inc. v. United
States, 185 F. Supp. 2d 1343, 1352 (Ct. Int’l Trade 2001).
All else is not equal here. Both the Cocommunity da-
ta and the Philippine import data are flawed. Such is the
nature of surrogate data, which is likely never a perfect
substitute. The selection of a data source is highly situa-
tional and requires weighing numerous factors; no factor
is necessarily more important than any other factor and
no factor is necessarily dispositive. Commerce considered
both data sets and determined that the Philippine import
data constituted the best available information for deter-
mining the surrogate value for carbonized material on the
administrative record for this review period. That Com-
merce may have found the Cocommunity the best availa-
ble information in more recent periods of review does not
mean that substantial evidence did not support Com-
merce’s decision that the Philippine import data was the
best available information. Commerce selects the best
available information based on the record before it at the
time of the decision, not a hypothetical record or the
record created for other periods of review.
We may not agree with Commerce’s selection, particu-
larly in light of the evidence and arguments not made to

-- 17 of 29 --

JACOBI CARBONS AB v. US 18
Commerce below. However, Jacobi and Cherishmet did
not make these arguments or place this evidence before
Commerce. We cannot say that Commerce’s selection of
the Philippine import data was unreasonable based on
arguments made and the administrative record created by
Jacobi and Cherishmet.
II. Surrogate Value for Truck Freight
Because Commerce selected Thailand as the primary
surrogate country for the Preliminary Results, it initially
based the surrogate value for truck freight on publicly
available data from a Thai consulting company of the
price to transport goods by truck from Bangkok to five
other provinces in Thailand in 2005 (“Thai freight data”).
Preliminary Results, 77 Fed. Reg. at 26,505. At the
urging of appellants, Commerce selected the Philippines
instead of Thailand as the primary surrogate country in
the Final Results. It therefore based the surrogate value
for truck freight on the average reported rate of transport-
ing goods by truck in the Philippines from Manila to
Legazpi City (“Philippine freight data”).
On appeal, Cherishmet and CAC argue that substan-
tial evidence did not support Commerce’s use of the
Philippine freight data instead of the Thai freight data to
calculate the surrogate value for truck freight. Specifical-
ly, Cherishmet and CAC criticize the Philippine freight
data as (1) unrepresentative of a broad market average;
(2) nonspecific to the actual transportation costs; and
(3) aberrational compared to the surrogate value for truck
freight calculated during other periods of review of the
subject merchandise.
We disagree. It is true that the Philippine freight da-
ta, which Commerce calculated based on the cost of
transporting goods over a single route, is less representa-
tive of a broad market average than the Thai freight data,
which is based on ten different values representing the
cost of transporting goods from Bangkok to five other Thai

-- 18 of 29 --

JACOBI CARBONS AB v. US 19
provinces. Although the Philippine freight data covers
only a single route, it consists of data reported by multiple
trucking companies. It is therefore broader than Cher-
ishmet and CAC suggest. Furthermore, the Philippines is
made up of many islands. A more representative sample
would include overseas routes in addition to overland
routes, and likely be less comparable to freight costs in
the PRC.
Cherishmet and CAC argue that the Philippine
freight data is not specific to actual transportation costs
because it represents “loose cargo,” while the respondents’
shipments were containerized. Cherishmet’s Br. 53 n.14;
CAC’s Br. 15. However, the record does not clearly show
that the respondents’ shipments were containerized.
Cherishmet’s invoice, which indicates that Cherishmet’s
products were shipped in a container, is for a shipment to
the United States, not within the PRC. See J.A. 101
(packing slip with final address in New Jersey). It there-
fore does not speak to how Cherishmet’s products were
shipped within the PRC. And the fact that Commerce
calculated a surrogate value for packaging materials does
not mean that all of Cherishmet’s and Jacobi’s shipments
were transported in containers. See J.A. 404–05.
Cherishmet and CAC also argue that the Philippine
freight data is aberrational compared to the surrogate
value for truck freight calculated during other periods of
review of the subject merchandise. The surrogate value
for freight calculated from the Philippine freight data is
$0.3152 per metric ton per kilometer. Cherishmet’s Br.
48. Cherishmet calculates the surrogate values for prior
periods of review as follows:

-- 19 of 29 --

JACOBI CARBONS AB v. US 20
Period of
Review Surrogate Value
1st $0.0393/MT/km
2nd $0.0413/MT/km
3rd $0.0396/MT/km
Id. at 47–48 (citations omitted). Cherishmet argues that
the past surrogate values are more in line with the Thai
freight data, which has a surrogate value of $0.0379 per
metric ton per kilometer for truck freight. Id. at 48.
However, this argument was not made to Commerce
during the review period, and Cherishmet and CAC point
to no evidence in the administrative record supporting it.
Furthermore, as discussed earlier, Commerce selected
India as the surrogate country for past review periods of
the subject merchandize, so the surrogate values cited by
Cherishmet and CAC are based on the cost of transport-
ing freight in India. See J.A. 733–35. It is not surprising
that the cost of transporting goods by truck was higher in
the Philippines than it was in India. The record does not
support all of Cherishmet and CAC’s critiques of the
Philippine freight data.
Moreover, the Thai freight data is also flawed. First,
the Thai freight data is dated August 8, 2005, more than
four years before the period of review. J.A. 316–20. The
Thai freight data is thus not contemporaneous with the
period of review, unlike the Philippine freight data.
Second, 19 C.F.R. § 351.408(c)(2) provides that Commerce
“normally will value all factors [of production] in a single
surrogate country.” Cherishmet and CAC do not chal-
lenge Commerce’s selection of the Philippines as the
surrogate country.

-- 20 of 29 --

JACOBI CARBONS AB v. US 21
In summary, in selecting the surrogate value for truck
freight, Commerce was faced with two imperfect data
sources. Substantial evidence supported Commerce’s
selection of the contemporaneous, albeit less representa-
tive, Philippine freight data over the Thai freight data.
Moreover, Commerce’s selection of the Philippine freight
data was in accord with its preference for valuing all
factors of production from a single surrogate country.4
CONCLUSION
We affirm the CIT’s decision sustaining Commerce’s
Final Results.
AFFIRMED
4 We need not address the arguments related to
separate rate calculations as they are predicated on the
arguments regarding Commerce’s choice of surrogate
values for carbonized material and truck freight. Because
we find that substantial evidence supports Commerce’s
calculation of the surrogate values for carbonized material
and truck freight, we affirm the CIT’s decision sustaining
the Final Results.

-- 21 of 29 --

N OTE: This disposition is nonprecedential.
United States Court of Appeals
for the Federal Circuit
______________________
JACOBI CARBONS AB, JACOBI CARBONS, INC.,
NINGXIA GUANGHUA CHERISHMET ACTIVATED
CARBON CO., LTD., CHERISHMET INC., BEIJING
PACIFIC ACTIVATED CARBON PRODUCTS CO.,
LTD., DATONG MUNICIPAL YUNGUANG
ACTIVATED CARBON CO., LTD., SHANXI
INDUSTRY TECHNOLOGY TRADING CO., LTD.,
CARBON ACTIVATED CORPORATION, CAR GO
WORLDWIDE, INC., TANGSHAN SOLID CARBON
CO., LTD.,
Plaintiffs-Appellants
v.
UNITED STATES, CALGON CARBON
CORPORATION, NORIT AMERICAS, INC.,
Defendants-Appellees
______________________
2014-1752, -1753, -1754, -1756
______________________
BRYSON, Circuit Judge, dissenting.
I agree with the majority that it was permissible for
the Commerce Department to use Thai data as the basis
for selecting a surrogate value for truck freight. As to the
use of Philippine import data as the basis for the surro-
gate value for the carbonized materials used in the pro-
duction of the subject imports, however, I do not agree.

-- 22 of 29 --

JACOBI CARBONS AB v. US 2
The majority concludes that the Department’s deci-
sion can be upheld in light of the deference due to the
agency in its valuation determinations and the plaintiffs’
failure to preserve their claims of error below. I part
company with the majority on both points.
1. Waiver
The majority holds that two of the plaintiffs’ argu-
ments have been waived because the plaintiffs failed to
present evidence in support of those arguments to Com-
merce during the administrative review proceeding. The
two arguments are (1) that the Philippine import data
does not actually contain imports of coconut shell charcoal
during the review period, and (2) that the Philippine
import data is aberrational compared to data used in
previous administrative reviews.
The plaintiffs could no doubt have done a better job of
making a record in this case on certain issues, such as
whether the price listed in the Philippine publication
Cocommunity, on which they rely, was a national price,
rather than a regional price, and whether that price
excluded duties and taxes. However, their failure to raise
objections to the use of Philippine import data during the
administrative review process is entirely understandable,
because the Commerce Department did not indicate its
intention to rely on that data at any point before issuing
the final results in this case, at which point it was too late
for the plaintiffs to object.
The Court of International Trade made exactly that
point when it rejected the government’s waiver argument
below. The court said:
[I]t was not until after the submission of the par-
ties’ case briefs that Commerce made its determi-
nation to select the Philippines as the primary
surrogate country, and articulated its basis for its
selection of sources to value carbonized material

-- 23 of 29 --

JACOBI CARBONS AB v. US 3
and truck freight (i.e., Philippine HTS 4402 and
Cost of Doing Business). It is simply too much to
ask of the parties to anticipate (1) that Commerce
would change the surrogate country between the
preliminary and Final Results, (2) the reasons that
the Department would state for deciding to change
surrogate countries, and (3) precisely how Com-
merce would value the various inputs. Under simi-
lar circumstances, it has been held that a party “is
not required to predict that Commerce would ac-
cept other parties’ arguments and change its deci-
sion.” Qingdao, 33 CIT at 1093, 637 F. Supp. 2d at
1237. Accordingly, because plaintiffs had no realis-
tic opportunity to present their arguments before
the Department, the court finds that plaintiffs did
not fail to exhaust their administrative remedies.
Jacobi Carbons AB v. United States, 992 F. Supp. 2d
1360, 1367 (Ct. Int’l Trade 2014). Accordingly, I conclude
that the two arguments the majority characterizes as
inadequately preserved below have not been waived.
2. Aberrational Data
Notwithstanding its waiver ruling, the majority ad-
dresses the merits of the plaintiffs’ contention that the
Philippine import data is aberrational.
The government argues that any apparent aberration
in the data can be explained by the fact that the first
through third reviews used India as a surrogate country
whereas the fourth review used the Philippines. The
majority correctly rejects that argument, recognizing that
it is “unlikely that the switch from India to the Philip-
pines could account for [the] dramatic change in pricing.”
Nonetheless, the majority concludes that it was permissi-
ble for Commerce to disregard the discrepancy.

-- 24 of 29 --

JACOBI CARBONS AB v. US 4
If we compare the surrogate values used in the vari-
ous administrative reviews (including two more recent
administrative reviews), it is clear the Philippine import
data used in the administrative review at issue in this
case departs wildly from the surrogate value relied on by
Commerce in other administrative reviews in this case, so
much so that it is highly suspect. Not only is the surro-
gate value derived from the Philippine import data much
greater than the Indian data used in the first through
third periods of review, but it is also significantly greater
than the data used in the fifth and sixth periods of review,
which used data from the Philippines.
The surrogate value of $1203.80 per metric ton is al-
most three times as high as the highest other surrogate
value determined in any of the other periods of review,
and it is more than fourteen times as high as the surro-
gate value for the immediately preceding period of review.
Meanwhile, the Cocommunity data on which the plaintiffs
rely (indicated by “CoCo” in the table below), showed a
price of $255 per metric ton, which was much more in line
with the surrogate values found in the prior and subse-
quent administrative reviews. While there might in some
circumstances be an explanation for data that is as gross-
ly anomalous as the Philippine import data, no such
explanation appears in the record in this case.
Period of
Review Surrogate Value
1 st $32.99/MT
2 nd
$66.256/MT (coconut shell charcoal);
$435.62/MT (coal-based carbonized
material)
3 rd $83.45/MT

-- 25 of 29 --

JACOBI CARBONS AB v. US 5
4 th $1,203.80/MT
CoCo $255/MT
5 th $391.67/MT
6 th $346.25/MT
3. Specificity
The plaintiffs argue that the Cocommunity data is
more specific than the Philippine import data because the
Cocommunity data relates to coconut shell charcoal, while
the Philippine import data relates to “Wood Charcoal
(Including Shell or Nut Charcoal).” The plaintiffs contend
that coconut shell charcoal is comparable to the coal-
based charcoals used by the Chinese manufacturers, and
that wood-based charcoal is not comparable to coconut
shell or coal-based charcoal. The majority rejects the
plaintiffs’ argument, finding that there is no express
determination in the record that coconut shell charcoal is
more comparable to coal-based charcoal than to wood
charcoal. I believe the majority reads the available evi-
dence too narrowly.
The majority quotes a statement made by Commerce
before the trial court in a previous administrative review:
“[C]oconut shell charcoal shares similar properties with
carbonized material and . . . those similar properties are
essential in the production of activated carbon. The
expert’s report found that coal-based carbonized materials
used by Cherishmet and coconut shell charcoal are simi-
lar in porosity and adsorption, which are both properties
essential in the production of activated carbon.” Final
Results of Redetermination Pursuant to Ct. Remand at
10–11, Calgon Carbon Corp. v. United States, No. 09-
00524 (Ct. Int’l Trade July 26, 2011), ECF No. 36 (foot-
notes omitted). While that statement was used to justify

-- 26 of 29 --

JACOBI CARBONS AB v. US 6
the selection of coconut shell charcoal over “other cokes of
coal,” the statement is pertinent in this case (where “other
cokes of coal” are not involved) because it clearly states
that coconut charcoal is comparable to coal-based char-
coal. Because the evidence before Commerce established
that coconut shell charcoal is comparable to coal-based
charcoal, whereas the evidence does not show the same
for wood-based charcoal, the Cocommunity data, which
was directed to coconut shell charcoal, was more specific
than the Philippine import data, which was directed to
both wood-based charcoal and charcoal obtained from
coconut shell.
4. Defects in the Cocommunity Data
Commerce found that the Cocommunity data was
flawed in fundamental ways that rendered it unusable in
determining surrogate value. The majority agrees. I do
not regard the perceived flaws in the Cocommunity data
as nearly so serious.
To begin with, it is true that the Cocommunity data is
not a perfect match for the value of the carbonized mate-
rials used in the production of the plaintiffs’ products.
But data used to calculate surrogate value seldom is. By
its nature, such data is intended to serve as an approxi-
mation—as the “best available information.” 19 U.S.C.
§ 1677b(c)(1). In this case, however, the evidence fairly
shouts that the Philippine import data used by the Com-
merce Department was not a good surrogate for the value
of the carbonized materials used in manufacturing the
subject imports. The flaws in the Cocommunity data are
trivial in comparison.
The aberrational nature of the surrogate value select-
ed by Commerce should have given Commerce pause and
caused it to evaluate the flaws it found in the competing
Cocommunity data—that the Cocommunity price was not
shown to be net of duties and taxes, and that the Cocom-
munity price was not shown to be a national price, as

-- 27 of 29 --

JACOBI CARBONS AB v. US 7
opposed to a regional price. Further consideration would
have led Commerce to the following conclusions:
First, the Cocommunity price was necessarily exclu-
sive of duties, since the price was for domestic product,
not imported goods.
Second, there was no evidence before Commerce that
the Cocommunity price included taxes, and Jacobi repre-
sented to Commerce that it did not. But even if, contrary
to Jacobi’s representations, the Cocommunity price in-
cluded taxes, a higher price could only work to the detri-
ment of the plaintiffs because it would increase the
dumping margin, not reduce it. It does not make sense to
refuse the plaintiffs’ request to use the Cocommunity data
on the ground that the data is subject to a flaw that might
be prejudicial to them.
Third, the document from which the Cocommunity da-
ta was derived stated: “In the Philippines, the average
price of coconut shall charcoal [for April 2010] was $230
[per metric ton].”1 In the table that listed the prices,
however, the reference to the Philippines was accompa-
nied by a reference to “Visayas,” which is a region of the
Philippines. While the document suggests that the price
was a national price, the reference to “Visayas” provides
some support for Commerce’s conclusion that the Cocom-
munity price is limited to the Visayas region of the Phil-
ippines. Even accepting that view of the evidence,
however, it is highly unlikely that the price in that region
is significantly different from the “national” price, since
the Visayas region, as the trial court observed, is one of
the three principal geographical divisions of the Philip-
pines, occupying the entire central portion of the country.
1 The evidence showed that the average price for the
entire period of review was $255 per metric ton.

-- 28 of 29 --

JACOBI CARBONS AB v. US 8
Finally, it is noteworthy that in the two subsequent
administrative reviews (the fifth and sixth), Commerce
selected the Cocommunity data over the Philippine import
data, finding that the Cocommunity data was both repre-
sentative (even though it referenced only a single region)
and that it was exclusive of duties and taxes.
A fair view of the Cocommunity data thus shows that
any flaws with that data are modest. In light of the
serious doubts raised by the use of the Philippine import
data that includes wood charcoal and that produced a
price far in excess of any price used by Commerce in
earlier or later reviews of this antidumping duty order, I
would hold that it was unreasonable for Commerce to
reject the use of the Cocommunity data in favor of the
Philippine import data in calculating the surrogate value
for the carbonized materials used in producing the subject
imports. Accordingly, I respectfully dissent.

-- 29 of 29 --