Ningxia Guanghua Cherishmet Activated Carbon Co. v. United States

Slip Op. 26- UNITED STATES COURT OF INTERNATIONAL TRADE NINGXIA GUANGHUA CHERISHMET ACTIVATED CARBON CO., LTD. and JILIN BRIGHT FUTURE CHEMICALS CO., LTD., Plaintiffs, CARBON ACTIVATED TIANJIN CO., LTD.; CARBON ACTIVATED CORPORATION; CALGON CARBON CORPORATION; and NORIT AMERICAS INC., Consolidated Plaintiffs, Before: Jane A. Restani, Judge BENGBU MODERN ENVIRONMENTAL CO., LTD., ET AL., Consol. Court No. 24-00262 Plaintiff-Intervenors, Public Version v. UNITED STATES, Defendant, NORIT AMERICAS, INC. and CALGON CARBON CORPORATION, Defendant-Intervenors. OPINION AND ORDER Dated: July 29, 2026 [Sustaining in part and remanding in part Commerce’s final determination in the antidumping duty review on certain activated carbon from the People’s Republic of China.] Jake Roger Frischknecht, VCL Law LLP, of Vienna, VA, argued for plaintiffs Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd. and Jilin Bright Future Chemicals Co., Ltd., and plaintiff- intervenors Bengbu Modern Environmental Co., Ltd., Datong Hongdi Carbon Co., Ltd., Datong Juqiang Activated Carbon Co., Ltd., Datong Municipal Yunguang Activated Carbon Co., Ltd., Consol. Court No. 24-00262 Page 2 Ningxia Huahui Environmental Technology Co., Ltd., and Shanxi Industry Technology Trading Co., Ltd. Also on the brief were Irene Huei-min Chen and Jingwen Xing, VCL Law LLP, of Vienna, VA, and Mark Burton Lehnardt, Davis & Leiman PLLC, of Washington DC. Stephanie Ellen Hartmann, Wilmer, Cutler, Pickering, Hale & Dorr LLP, of Washington, DC, for consolidated plaintiffs Carbon Activated Tianjin Co., Ltd. and Carbon Activated Corporation. Also on the brief were David J. Ross and Elizabeth Ann Argenti. Melissa Marie Brewer, Kelley Drye & Warren, LLP, of Washington, DC, argued for consolidated plaintiffs and defendant-intervenors Calgon Carbon Corporation and Norit Americas, Inc. Also on the brief were John M. Herrmann, II and R. Alan Luberda. Gregory Stephen Menegaz, The Inter-Global Trade Law Group PLLC, of Washington, DC, for plaintiff-intervenors Ningxia Mineral & Chemical Limited, Shanxi Sincere Industrial Co., Ltd., and Tianjin Channel Filters Co., Ltd. Also on the brief were Alexandra H. Salzman and Vivien Jinghui Wang. Tate Nathan Walker, Commercial Litigation Branch – Civil Division, U.S. Department of Justice, of Washington, DC, argued for the defendant. Also on the brief were Blake William Cowman and Claudia Burke. Of counsel on the brief were Alexandre Recher and Ruslan N. Klafehn, U.S. Department of Commerce, of Washington, DC. Restani, Judge: Before the court are various parties’ motions for summary judgment on the agency record pursuant to USCIT Rule 56.2 challenging the U.S. Department of Commerce’s (“Commerce”) final results of the administrative review of the antidumping duty (“AD”) order on certain activated carbon from the People’s Republic of China (“China”) for period of review (“POR”) from April 1, 2022, through March 31, 2023. See Certain Activated Carbon From the People’s Republic of China: Final Results of Antidumping Duty Administrative Review; 2022- 2023, 89 Fed. Reg. 92,893 (Dep’t Commerce Nov. 25, 2024) (“Final Results”); see also Certain Activated Carbon from the People’s Republic of China: Amended Final Results of Antidumping Duty Administrative Review; 2022-2023, 89 Fed. Reg. 104,978 (Dep’t Commerce Dec. 26, 2024) (“Amended Final Results”), and accompanying Analysis of Ministerial Error Allegation, P.R. 271 (Dec. 17, 2024) (“Amended IDM”). For the reasons stated below, Commerce’s Amended Final Results are sustained in part and remanded in part. Consol. Court No. 24-00262 Page 3 BACKGROUND In April 2007, Commerce issued an antidumping (“AD”) duty order on certain activated carbon from China. Notice of Antidumping Duty Order: Certain Activated Carbon From the People’s Republic of China, 72 Fed. Reg. 20,988 (Dep’t Commerce Apr. 27, 2007) (“Order”). On June 12, 2023, following requests for review, Commerce initiated the sixteenth administrative review of the Order for POR from April 1, 2022, through March 31, 2023. Initiation of Antidumping and Countervailing Duty Administrative Reviews, 88 Fed. Reg. 38,021 (Dep’t Commerce June 12, 2023); Respondent Selection Memorandum at 4–5, C.R. 35, P.R. 76 (July 27, 2023) (“Respondent Selection Memo.”). Commerce selected Jilin Bright Future Chemicals Co., Ltd. (“Jilin Bright”) and Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd. (“GHC”),1 the top two exporters and producers of subject merchandise entered for consumption into the United States during the POR, as mandatory respondents. Respondent Selection Memo. at 4–5; Certain Activated Carbon From the People’s Republic of China: Preliminary Results of Antidumping Duty Administrative Review; 2022-2023, 89 Fed. Reg. 35,797, 35,798 (Dep’t Commerce May 2, 2024) (“Preliminary Results”). On November 7, 2023, Commerce placed on the record a list of potential surrogate countries economically comparable to China (the “OP List”), based on per capita gross national income (“GNI”) data from the World Bank’s 2021 World Development Report, which included Romania, Panama, Costa Rica, Malaysia, Bulgaria, and Türkiye. Request for Economic Development, Surrogate Country, and Surrogate Value Comments and Information, Attach. I at 1–2, P.R. 131 (Nov. 7, 2023). Commerce invited interested parties to comment on the selection 1 The government refers to GHC as “Cherishmet” in its brief. See Def.’s Resp. to Pls.’, Consol. Pls.’ & Pl.-Intervenors’ Mots. For J. on the Agency R. at 2, ECF No. 72 (Feb. 2, 2026) (“Gov’t Resp.”). Consol. Court No. 24-00262 Page 4 of the primary surrogate country and to provide surrogate information to value the factors of production (“FOPs”). Id. at 1–2. GHC and Jilin Bright submitted comments arguing that Commerce should select Romania as the primary surrogate country because the Malaysian data were aberrational. GHC’s Pre-Preliminary Comments, C.R. 197, P.R. 207 (Apr. 8, 2024); Jilin Bright’s Pre-Preliminary Comments, C.R. 204, P.R. 213 (Apr. 12, 2024); Jilin Bright’s First SV Submission, P.R. 144 (Dec. 20, 2023); GHC First SV Submission, P.R. 146–48 (Dec. 20, 2023). The parties provided surrogate value data for Romania, Malaysia, and Türkiye. Decision Memorandum for the Preliminary Results of the 2022-2023 Administrative Review of the Antidumping Duty Order on Certain Activated Carbon from the People’s Republic of China at 7, A-570-904, POR 4/1/2022–3/31/2023 (Dep’t Commerce Apr. 26, 2024) (“PDM”); Jilin Bright Final SV Submission, C.R. 144–45, P.R. 194–95 (Mar. 27, 2024); GHC Final SV Submission, P.R. 188 (Mar. 27, 2024). On May 2, 2024, Commerce published its Preliminary Results. See Preliminary Results. Commerce found that Malaysia was the only net exporter of activated carbon among the OP List countries and that, accordingly, Malaysia was the only significant producer of comparable merchandise. PDM at 7–8. Commerce noted that the record contains financial statements from both Malaysian and Romanian companies, but the financial statements from Romcarbon, the Romanian company on the record, illustrate that the company does not produce the subject merchandise in significant quantities when compared to the Malaysian financial statements on the record. Id. at 8. Commerce accordingly preliminarily selected Malaysia as the primary surrogate country and included data from Türkiye for labor surrogate values.2 Id. at 9. Commerce 2 Commerce noted evidence that forced labor was widespread throughout the Malaysian electrical and electronics subsector (“E&E”), and “given the E&E subsector’s size in terms of the number of employees relative to the Malaysian manufacturing section, a labor SV based on the Malaysian Consol. Court No. 24-00262 Page 5 preliminarily calculated weighted-average margins (based on dollars per kilogram) of $2.01 for Jilin Bright, $1.17 for GHC, and $1.43 for the review-specific rate for non-selected companies under review. Preliminary Results at 35,798. Following the Preliminary Results, GHC and Jilin Bright continued to argue that the Malaysian data were aberrational, and that Commerce should select Romania as the primary surrogate country. GHC Case Brief, C.R. 223, P.R. 231 (June 12, 2024); Jilin Bright Case Brief, C.R. 221, P.R. 229 (June 12, 2024). The petitioners argued that GHC’s supplier had improperly calculated the consumption ratios of certain inputs3 and argued that GHC improperly failed to incorporate all inputs into its consolidated FOP database. Case Brief of Petitioners Concerning GHC, C.R. 225, P.R. 233 (June 12, 2024). Commerce agreed. IDM at 38–39. On November 25, 2024, Commerce published its Final Results. See Final Results; Final Issues and Decision Memorandum, P.R. 251 (Nov. 5, 2024) (“IDM”). Commerce modified GHC’s FOP database to reflect GHC’s supplier’s consumption of certain inputs4 in its production of activated carbon and valued this consumption using Malaysian import data for activated carbon. Id. at 37–39; Proprietary Memorandum for Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd., C.R. 230, P.R. 252 (Nov. 5, 2024). Commerce maintained its selection of Malaysia as the primary surrogate country. IDM at 7. manufacturing sector was not the best available information on the record and, therefore, not suitable for use.” PDM at 9. Commerce chose to value GHC and Jilin Bright’s labor consumption using the reported figures from the International Labour Organization for Türkiye because “Türkiye had a greater quantity of exports of comparable merchandise during the POR than Romania.” Id. at 20. 3 These inputs are [[ ]]. See Case Brief of Petitioners Concerning GHC, C.R. 225, P.R. 233 (June 12, 2024). 4 These inputs are “[[ ]].” Proprietary Memorandum for Ningxia Guanghua Cherishmet Activated Carbon Co., Ltd. at 3–4, C.R. 230, P.R. 252 (Nov. 5, 2024). Consol. Court No. 24-00262 Page 6 Jilin Bright and GHC submitted comments pursuant to 19 C.F.R. § 351.224(c) arguing the Final Results contained ministerial errors. See Jilin Bright Ministerial Error Allegations, C.R. 242, P.R. 266 (Nov. 20, 2024); GHC Ministerial Error Allegations, P.R. 265 (Nov. 20, 2024). Commerce issued amended final results and corrected inadvertent errors related to the inclusion of two selling, general, and administrative (“SG&A”) expenses in the average financial ratios utilized in the review and the incorrect surrogate value applied to a FOP for GHC. Amended Final Results at 104,978. Commerce calculated weighted-average dumping margins of $1.90/kg for Jilin Bright, $1.10/kg for GHC, and $1.35/kg for non-selected companies under review. Id. JURISDICTION AND STANDARD OF REVIEW The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and section 516A of the Tariff Act of 1930 (the “Act”), codified as amended, 19 U.S.C. § 1516a. The court will uphold Commerce’s determinations in antidumping duty reviews 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); Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir. 1996). DISCUSSION I. Commerce’s Selection of Malaysia as the Primary Surrogate Country is Unsupported GHC and Jilin Bright argue that Commerce unreasonably rejected Romania as the primary surrogate country on the basis that it was not a net exporter of activated carbon and its production was not as high as Malaysia’s. Rule 56.2 Mot. for J. on the Agency R. of Pls., Consolidated Pls., & Pl.-Intervenors at 18, ECF No. 60 (Aug. 14, 2025) (“GHC and Jilin Bright Mot.”). They argue that Romania produced a significant volume of activated carbon, and that Commerce read an additional requirement into the statute by defining “significant producer” as a “significant net Consol. Court No. 24-00262 Page 7 exporter” and, accordingly, unreasonably disqualified Romania from consideration as a surrogate country at the outset. Id. at 18–19. They contend that because Commerce prematurely dismissed Romania as a potential surrogate country, Commerce failed to adequately examine whether Romania’s data constituted the best available information to value certain FOPs.5 Id. at 21. They also argue that Commerce improperly concluded that Romcarbon, the financial statements for which they argue should be used, is not a significant producer of merchandise. Id. at 19–20. They maintain that the submitted Romanian data met all of Commerce’s established criteria for the best available information for valuing FOPs—that the data are, to the extent practicable, publicly available, contemporaneous with the POR, representative of a broad market average, tax- and duty- exclusive, and specific to the inputs being valued—unlike the Malaysian data. Id. at 22. The government responds that Commerce reasonably selected Malaysia as a surrogate country because the statutory language is broad, and both the legislative history and Commerce’s Policy Bulletin 04.1 state that a “significant producer” could mean “a country that is a net exporter, even though the selected surrogate country may not be one of the world’s top producers.” Def.’s Resp. to Pls.’, Consolidated Pls.’ & Pl.-Intervenors’ Mots. For J. on the Agency R. at 15, ECF No. 72 (Feb. 2, 2026) (“Gov’t Resp.”) (citing Import Admin., U.S. Dep’t of Commerce, Non-Market Economy Surrogate Country Selection Process, Policy Bulletin 04.1 (2004), https://enforcement.trade.gov/policy/bull04-1.html) (“Policy Bulletin 04.1”); Conference Report 5 GHC and Jilin Bright add that the Malaysian data is also unreliable because Century Chemical Works Sendirian Berhad’s (“Century Chemical”) financial statement, on which Commerce relies, covers only a one-year period ending December 31, 2022, whereas the POR extends through March 31, 2023. GHC and Jilin Bright Mot. at 26. The government responded at Oral Argument that Commerce often relies on financial statements that do not perfectly cover the POR. Oral Argument at 1:13:10. GHC and Jilin Bright do not point to any authority that a financial statement must be entirely contemporaneous with the POR to be considered the best available information. Further, Century Chemical’s financial statement covers a significant portion of the POR. Consol. Court No. 24-00262 Page 8 to the 1988 Omnibus Trade & Competitiveness Act, H.R. Conf. Rep. No. 100-576, 590, reprinted at 1988 U.S.C.C.A.N. 1547, 1623 (1988)) (“Conf. Report”). The government adds that the surrogate value data on the record from Malaysia were publicly available and contemporaneous, represented a broad market average, were tax- and duty-exclusive, and were specific to inputs used by GHC and Jilin Bright to produce activated carbon. Id. at 16, 26–28. The government contends that Commerce reasonably rejected Romania as a potential surrogate country because it is not a net exporter of activated carbon and because Romcarbon’s financial statements did not indicate any significant production of activated carbon. Id. at 17–20. Finally, the government responds that Commerce reasonably declined to evaluate whether the Romanian data are the best available information on the record because Commerce already determined that Romania was not a significant producer of comparable merchandise and because the Malaysian data were available and usable. Id. at 20–26. In an antidumping review, Commerce conducts a “fair comparison” of the prices of a good sold in the respondents’ home market (the “normal value”) with the prices for the same or similar good sold in the United States (“U.S.”) market (the “export price”) to determine the dumping margin. 19 U.S.C. §§ 1677b(a), 1677a, 1675(a)(2). A dumping margin is “the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise.” Id. § 1677(35)(A). When calculating a dumping margin for products from a non-market economy (“NME”) country, such as China, see PDM at 5, and Commerce finds that available information does not permit the normal value of the subject merchandise to be determined, Commerce must calculate the normal value by valuing the “factors of production utilized in producing the merchandise” in a comparable “market economy country or countries” (the “surrogate country”), to which it adds an amount to represent general expenses, profit, and other expenses. Id. Consol. Court No. 24-00262 Page 9 § 1677b(c)(1). “By identifying a surrogate country and surrogate values for the factors of production, Commerce approximates what a non-market economy manufacturer might pay in a market economy setting.” Risen Energy Co. v. United States, 122 F.4th 1348, 1352 (Fed. Cir. 2024) (citation modified) (citation omitted). Commerce normally will value all FOPs in a single surrogate country (the “primary surrogate country”). 19 C.F.R. § 351.408(c)(2). The FOPs include, but are not limited to, “hours of labor required,” “quantities of raw materials employed,” “amounts of energy and other utilities consumed,” and “representative capital cost, including depreciation.” 19 U.S.C. § 1677b(c)(3). The surrogate data to value the FOPs must “to the extent possible” be from a market economy (“ME”) country that is “at a level of economic development comparable to that of the nonmarket economy country” and is a “significant producer[] of a comparable merchandise.” Id. § 1677b(c)(4). The statute does not clarify the meaning of the term “significant producer.” See id. Commerce has adopted a four-step approach to select a primary surrogate country. See Policy Bulletin 04.1. First, the Office of Policy (“OP”) provides a list of potential surrogate countries that are at a comparable level of economic development to the NME county (the “OP List”). Id. at 2. Second, Commerce determines which countries on the list produce comparable merchandise. Id. at 2–3. Third, Commerce determines whether any of those countries are “significant” producers of that comparable merchandise, the meaning of which “can differ significantly from case to case” but “could mean a country that is a net exporter, even though the selected surrogate country may not be one of the world’s top producers.” Id. at 3–4. Fourth, if more than one potential surrogate country satisfies the statutory threshold requirements, Commerce selects the country with the best factors data as the primary surrogate country. Id. at 4; PDM at 8. Commerce normally values all Consol. Court No. 24-00262 Page 10 FOPs in a single surrogate country. 19 C.F.R. § 351.408(c)(2). The rationale seems to be that this avoids distortion. In this review, Commerce placed Romania, Panama, Bulgaria, Costa Rica, Malaysia, and Türkiye on the record as potential surrogate countries. PDM at 6. Commerce found that each country is at a level of economic development comparable to China, satisfying the first prong of section 773(c)(4) of the Act. IDM at 8. In the PDM, Commerce reasoned that Malaysia is the only significant producer of comparable merchandise on the OP List because Malaysia is the only net exporter and because Malaysia provided evidence of production of comparable merchandise in the form of financial statements from multiple Malaysian companies. PDM at 7–8. Regarding surrogate value (“SV”) data availability, Commerce reasoned that the data submitted for Malaysia are more complete than the data submitted for Romania because Romcarbon does not produce activated carbon in significant quantities. Id. at 8–9. In the IDM, Commerce considered Romcarbon’s financial statements in concluding that Romania is not a significant producer of comparable merchandise. IDM at 8–9. Finally, Commerce summarized that “while there is direct evidence on the record that Malaysia is a significant producer of identical merchandise, there is no equivalent information on the record to suggest that Romania is a significant producer of comparable merchandise” and that “the Malaysian financial statements provide stronger evidence of production of the subject merchandise.” Id. at 11–12. Accordingly, Commerce selected Malaysia as the primary surrogate country. Id. at 12. Commerce’s selection of Malaysia as the primary surrogate country is unsupported by the reasoning and evidence cited. Commerce rejects Romania as a potential primary surrogate country, in part, because Romcarbon’s financial statements do not reflect significant production. IDM at 8–9. Yet, the record demonstrates that Romania exports a non-negligible amount of Consol. Court No. 24-00262 Page 11 activated carbon. Jilin Bright Surrogate Country Comments, Ex. 1 at 1–4, P.R. 132 (Nov. 21, 2023) (providing UN Comtrade data for HTS 3802.10 between April 2022 and March 2023 that adds to an export volume of 33,314.27, with the unit unspecified, for Romania), GHC Surrogate Country Comments at 3, P.R. 137 (Nov. 21, 2023) (reporting that, based on UN Comtrade data for HTS 3802.10, Romania exported 52,063 kgs of activated carbon in 2022); Petitioners’ Surrogate Country Comments at 7, P.R. 134–36 (Nov. 21, 2023) (reflecting that, based on Trade Data Monitor6 (“TDM”) data, Romania exported 35,319 kgs of activated carbon during the POR). Commerce has not explained why Romcarbon’s financial statements undermine the record data of Romania’s exports of activated carbon. Malaysia is lacking usable labor data.7 IDM at 15. Thus, to the extent that Commerce’s analysis of Romcarbon’s statements was confined to its conclusion that Romanian data were insufficient to value all FOPs, then selecting Malaysia as the primary surrogate country would be based on only Malaysia’s status as the sole net exporter. Yet, section 1677b does not suggest that being a net exporter of subject merchandise, by itself, makes a country a significant producer.8 Commerce’s logic likely amounts to a conclusion that not being a “net exporter” disqualifies a country from consideration as a significant producer of subject merchandise. Such a determination would be unreasonable. While “net exporter” may reflect adequate production in most cases, it may not be a suitable test where absolute volumes of production are small or domestic consumption is high. There may be some scenarios where the 6 Trade Data Monitor data excludes price values from NME countries and countries with general export subsidies. Gov’t Resp. at 31 (citing IDM at 16–17). 7 Depending on the results of this remand, other FOPs may not be valued using Malaysian data. 8 Commerce looked to legislative history and Policy Bulletin 04.1 for guidance, both of which state that a net exporter could be considered a “significant producer of subject merchandise.” See IDM at 11; Commerce Policy Bulletin 04.1 at 3 (“[A] ‘significant producer’ could mean a country that is a net exporter[.]”); Conf. Report at 1623 (“The term ‘significant producer’ includes any country that is a significant net exporter and, if appropriate, Commerce may use a significant net exporting country in valuing factors.”). Consol. Court No. 24-00262 Page 12 net exporter standard alone may be reasonable, but the government has not shown that such a scenario presents itself here.9 Further, on this record it appears that Commerce has conflated the steps in selecting a primary surrogate country. Its use of financial statements is particularly unclear. Are the financial statements necessary to value some FOPs or are they relevant to consideration of overall country production? This needs to be explained. The court remands to Commerce to clarify its analysis and to consider which countries on the OP List are significant producers of subject merchandise based on more than the net exporter standard alone. If Romania is a significant producer, then Commerce should explain which country is selected as the primary surrogate, presumably based on the best data available to value the FOPs. It is possible that the following matters will become moot, but the court addresses them now for reasons of judicial economy. II. Commerce Reasonably Selected Some Malaysian Surrogate Values Consolidated plaintiffs Carbon Activated Tianjin Co., Ltd. and Carbon Activated Corporation (“Consolidated Plaintiffs”), GHC, and Jilin Bright argue that the surrogate values for Malaysia’s imports of coal tar, hydrochloric acid, solid sodium hydroxide, and potassium 9 The Federal Circuit in a particular factual situation has accepted Commerce’s reliance on Policy Bulletin 04.1 in its surrogate country selection process. See Carbon Activated Tianjin Co. v. United States, 2025 WL 1354994, at *3 (Fed. Cir. May 9, 2025). In Carbon Activated Tianjin Co., however, the Federal Circuit noted that the plaintiff did not challenge the Policy Bulletin. Id., at *3. Here, GHC and Jilin Bright challenge Commerce’s application of the Policy Bulletin as improperly giving dispositive weight to the consideration that a significant producer includes a net exporter. See GHC and Jilin Bright Mot. at 16, 21, 26; GHC and Jilin Bright’s Reply Br. at 7, ECF No. 84 (Apr. 24, 2026) (“GHC and Jilin Bright Reply”). Further, in Carbon Activated Tianjin Co., the Federal Circuit did not suggest that Commerce may always exclusively rely on the net exporter standard to disqualify other potential surrogate countries. Rather, the Federal Circuit held that Commerce did not err in relying on the net exporter criterion in Policy Bulletin 04.1 in that case. Id., at *3. Consol. Court No. 24-00262 Page 13 hydroxide were aberrational because they deviated drastically from world average unit prices (“AUVs”) and individual country comparison points. Rule 56.2 Mot. for J. on the Agency R. of Carbon Activated Tianjin Co., Ltd. & Carbon Activated Corp. at 13–14, 16, ECF No. 59 (Aug. 14, 2025) (“Consol. Pls. Mot.”) (citation modified); GHC and Jilin Bright Mot. at 22. The government responds that plaintiffs’ argument that the Malaysian data is aberrational compared to global averages fails because those averages include data from NMEs, countries that are not economically comparable to China, and countries with general export subsidies. Gov’t Resp. at 28–30. Commerce must use the “best available information” in selecting surrogate data for which to value FOPs. 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 Sea- Line Trading Co. v. United States, 766 F.3d 1378, 1386 (Fed. Cir. 2014). “Commerce’s discretion, however, is limited by the statute’s objective of obtaining the most accurate dumping margins possible, meaning Commerce’s choice of the best available information must evidence a rational and reasonable relationship to the [chosen] factor of production it represents to be supported by substantial evidence.” Calgon Carbon Corp. v. United States, 145 F. Supp. 3d 1312, 1323 (CIT 2016) (citation modified) (citation omitted). “Commerce has an obligation to review all data and then determine what constitutes the best information available or, alternatively, to explain why a particular data set is not methodologically reliable.” Olympia Indus., Inc. v. United States, 22 CIT 387, 390, 7 F. Supp. 2d 997, 1001 (CIT 1998). Commerce may disregard price or cost values if Commerce has determined that “broadly available subsidies existed or particular instances of subsidization occurred with respect to those price or cost values.” 19 U.S.C. § 1677b(c)(5). After Commerce determined that Malaysia was the only significant producer of comparable merchandise, see PDM at 7–9; IDM 7–12, Commerce considered the surrogate value Consol. Court No. 24-00262 Page 14 data on the record, which included data from Malaysia, Türkiye, and Romania, and determined that both the Malaysian and Turkish data generally are publicly available, contemporaneous with the POR, representative of broad market averages, tax- and duty-exclusive, and specific to the inputs being valued.10 IDM at 14–15. Jilin Bright reported raw materials factor inputs of anthracite coal, bituminous coal, lump coal, coal tar/pitch, salt, and water. Jilin Bright’s First SV Submission, Ex. 1. GHC reported several raw materials factor inputs of anthracite coal, bituminous coal, lump coal, coal tar, hydrochloric acid, magnesium oxide, potassium hydroxide, solid sodium hydroxide, sulphur acid, salt, and water. GHC’s First SV Submission, Ex. 1. Commerce used data from Malaysia, with the exception of labor value, for which Commerce used Turkish data, to value the FOPs. IDM at 15, 21. The court addresses the arguments regarding each factor of production in turn. a. Commerce’s selection of the Malaysian surrogate value for coal tar is adequately supported. GHC, Jilin Bright, and Consolidated Plaintiffs argue that, even if Commerce reasonably selected Malaysia as the primary surrogate country, it unreasonably selected the Malaysian SV to value coal tar. GHC and Jilin Bright Mot. at 27; Consol. Pls. Mot. at 22. They contend that Commerce ignored record evidence that the Malaysian AUV of $1.65 did not reflect a broad market average, which Consolidated Plaintiffs reported to be $0.48. GHC and Jilin Bright Mot. at 27; Consol. Pls. Mot. at 13. GHC and Jilin Bright specifically note that Malaysia has historically been a significant net exporter of coal tar and imported a small quantity of coal tar, which suggests that Malaysia’s imports may be limited to specialized types of coal tar. GHC and Jilin Bright Mot. 10 Jilin Bright and GHC provided TDM data for Romania and petitioners submitted TDM data for Malaysia and labor FOPs from the International Labor Organization for Türkiye and Malaysia. PDM at 7. Consol. Court No. 24-00262 Page 15 at 27–28. They note that, in contrast, Romania imported a significantly larger quantity of coal tar than it exported, “demonstrating a closer alignment with a broad market average.” 11 Id. at 29 (citing Jilin Bright Final SV Submission, Ex. 6). Further, they argue that the Malaysian AUV rose around 40% between the prior two reviews and the current review, which suggests that the Malaysian value is aberrational. Id. at 31. The government notes that the Malaysian coal tar AUV encompasses import data from Spain, Australia, and Taiwan, whereas the Romanian coal tar AUV represents import data only from Ukraine. Gov’t Resp. at 36. The government reiterates that global market averages are not the appropriate benchmark because they contain prices of imports from NMEs and countries with general export subsidies. Id. The government also argues that the record supports Commerce’s determination that the Malaysian import AUV is not aberrational. Id. at 39; see also Resp. Br. of Def.-Intervenors Calgon Carbon Corporation and Norit Americas, Inc. at 2–3, ECF No. 74 (Mar. 4, 2026) (“Petitioners Resp.”). The government also argues that the Malaysian AUV is not aberrational when compared to historical import prices because the current AUV is nearly identical to the value used in the 2017-2018 administrative review of the Order, and only 38% higher than the average of the five most recent administrative reviews.12 Gov’t Resp. at 40; see also Petitioners Resp. at 4. 11 They add that an affidavit from a Malaysian importer of coal tar, submitted with Jilin Bright Final SV Submission, reveals a discrepancy between the unit price of coal tar and the Malaysian import AUV during the POR. Id. at 29. The government responds that Commerce properly disregarded the affidavit because Commerce’s practice is to rely on publicly available information, whereas this affidavit was designated as business proprietary information. Gov’t Resp. at 38. 12 The government notes that there was historically high coal consumption during the review period, which could reasonably lead to increased coal prices because coal tar is a by-product of coal. Gov’t Resp. at 40 (citing IDM at 18). Consol. Court No. 24-00262 Page 16 Commerce valued coal tar using Malaysian import data for HTS number 2706.00 (1.67 USD/kg).13 IDM at 16. Commerce noted that this value is not aberrational because it is approximately seven percent of the largest coal tar import AUV from the OP List countries and because it does not significantly depart from the value in past reviews. Id. Commerce also explained that “in [the] context of the current review, the Malaysian import AUV . . . (1.67 USD/kg) is nearly identical to the Turkish import AUV (1.48 USD/kg), and much lower than the Costa Rican import AUV (21.48 USD/kg).” Id. Commerce also noted its preference to value all FOPs in one country unless the data is unusable and unreliable. Id. Commerce reasonably selected the Malaysian data to value coal tar. Commerce reasonably concluded that comparing the Malaysian AUV to world average prices would be improper because the world data includes data for imports from countries not at the same level of economic development as China and from NME countries. Id. at 16–17; see Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333, 1341 (Fed. Cir. 2011) (While Commerce must select the “best available information” on the record to value the FOPs, 19 U.S.C. § 1677b(c)(1)(B), Commerce has “broad discretion” to decide what record evidence meets this criterion.); 19 U.S.C. § 1677b(c)(5) (Commerce may disregard price or cost values if Commerce determines that the values may be distorted.). While GHC and Jilin Bright argue that Romania’s relatively high import volume suggests that its data are more representative of world averages, they have not pointed to any authority or specific reasoning that compels the conclusion that a high import volume means 13 GHC reported the Malaysian unit value of coal tar as $1.65 and a quantity of 173,802 (units unspecified). GHC Final SV Submission, Ex. 2b at 80. GHC reported the Romanian unit value as $0.34 and a quantity of 1,261,200 (units unspecified). Id., Ex. 2b at 84. It reported a value of $53.54 and a quantity of 2 for Costa Rica (units unspecified). Id., Ex. 2b at 76. It did not report any values for Panama. Id., Ex. 2b at 84. It reported a value of $1.55 and a quantity of 212,350 for Türkiye (units unspecified). Id., Ex. 2b at 84. Consol. Court No. 24-00262 Page 17 that a country’s data are necessarily the best available.14 See GHC and Jilin Bright Mot. at 29; GHC and Jilin Bright’s Reply Br. at 12–16, ECF No. 84 (Apr. 24, 2026) (“GHC and Jilin Bright Reply”). When compared to the import data of the other countries on the OP List, the Malaysian data fall squarely within the range of both import volume and import value. As stated above, the standard “is not whether the information Commerce used was the best available, but rather whether a reasonable mind could conclude that Commerce chose the best available information.” Jiaxing Bro. Fastener Co. v. United States, 822 F.3d 1289, 1301 (Fed. Cir. 2016) (citation omitted). A reasonable mind could conclude that the Malaysian AUV for coal tar was not aberrational and that Commerce chose the best available data. The court, accordingly, sustains Commerce’s use of the Malaysian AUV for coal tar. b. Commerce’s selection of the Malaysian surrogate value for sub-bituminous coal is adequately supported. GHC and Jilin Bright argue that Commerce unreasonably selected Malaysia’s AUV for sub-bituminous coal as the surrogate value because the value sharply diverges from historical Malaysian AUVs. GHC and Jilin Bright Mot. at 32. They contend that Commerce arbitrarily selected Chile as a benchmark even though Chile is not on the OP List of potential surrogate 14 In their reply brief, GHC and Jilin Bright cite SolarWorld Ams., Inc. v. United States, 962 F.3d 1351, 1361 (Fed. Cir. 2020), for the proposition that the data of a country that imports a high percentage of the total import volume by economically comparable countries are a true representation of market driven prices. GHC and Jilin Bright Reply at 12–13. In SolarWorld, the Federal Circuit agreed with the CIT that Commerce did not adequately justify its use of Thai data to value a FOP in the light of distortions by aberrational imports from Hong Kong. The Federal Circuit reasoned that, specifically, the imports from Hong Kong had a unit value 191 times higher than the AUV for imports into Thailand from other countries, and that the imports from Hong Kong constituted only 1.6% of imports into Thailand, so they could not be considered to be a “true representation of market-driven prices.” SolarWorld Ams., Inc., 962 F.3d at 1361. The Federal Circuit did not hold that a high import volume necessarily suggests that a country’s data are the best available, particularly when the primary surrogate country’s AUV is not aberrational. Consol. Court No. 24-00262 Page 18 countries and accordingly risked selecting benchmark data from a market not economically comparable to plaintiffs’ home market. Id. They add that Malaysia’s sub-bituminous coal AUV rose 129% from the fifteenth review, and 457% from the fourteenth review, and that such a discrepancy required an explanation from Commerce. Id. at 33. They contend that, instead, Commerce should have selected the Romanian AUV because of Commerce’s obligation to use the “best available information” per 19 U.S.C. § 1677b(c)(1)(B). Id. The government responds that Commerce adequately addressed the divergence from historical Malaysian AUVs, which it explained was due to high coal and natural gas consumption. Gov’t Resp. at 42. Specifically, the government notes that coal prices surged as high as 440 USD/MT, and that AUVs in both Malaysia and Romania exceeded 300 USD/MT, meaning the Malaysian AUV was n