Zhejiang Dunan Hetian Metal Co., Ltd. v. United States

SLIP OP 11–120
UNITED STATES COURT OF INTERNATIONAL TRADE
Before: Pogue, Chief Judge
Court No. 09-00217
ORDER FOR REMAND
This remand order follows the Court of Appeals for the Federal
Circuit’s 	opinion 	in 	Zhejiang 	Dunan 	Hetian 	Metal 	Co. 	v. 	United
States, 	__ 	F.3d 	__, 	2011 	WL 	2463651 	(Fed. 	Cir. 	2011) 	(“Zhejiang
II”), vacating and remanding this court’s previous judgment. 	See
Zhejian 	Dunan 	Hetian 	Metal 	Co. 	v. 	United 	States, 	707 	F. 	Supp. 	2d
1370 (CIT 2010) (“Zhejiang I”).
In 	Zhejiang 	I, 	this 	court 	held, 	in 	part, 	that 	1) 	the 	United
States Department of Commerce (“Commerce”) properly included data
from 	Japan, 	France, 	and 	the 	United 	Arab 	Emirates 	(“UAE”) 	when
calculating surrogate value for brass bar; 2) Commerce reasonably
applied 	an 	adverse 	inference 	to 	certain 	sales 	of 	frontseating
service 	valves 	(“FSVs”); 	and 	3)Commerce’s 	use 	of 	the 	regression
ZHEJIANG DUNAN HETIAN METAL CO.,
LTD.
Plaintiff,
v.
UNITED STATES,
Defendant,
- and -
PARKER-HANNIFIN CORP.,
Defendant-
Intervenor.
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model provided by its regulation for calculating a surrogate wage
rate 	was 	reasonable. 	Zhejiang 	I, 	707 	F. 	Supp. 	2d 	at 	1366, 	1380,
1371.
On 	appeal, 	Plaintiff, 	Zhejiang 	Dunan 	Hetian 	Metal 	Co.
(“Zhejiang”), 	argued 	that 	when 	calculating 	a 	surrogate 	value 	for
brass 	bar, 	Commerce 	erred 	in 	including 	World 	Trade 	Atlas 	(“WTA”)
Indian import data that included data from Japan, France, and the
UAE 	because 	data 	from 	another 	source, 	InfoDrive, 	suggested 	that
imports 	from 	these 	countries 	were 	improperly 	classified. 	See
Zhejiang 	II, 	2011 	WL 	2463651 	at 	*6–7. 	Plaintiff 	also 	challenged
the 	extent 	to 	which 	Commerce 	used 	adverse 	inferences 	in 	its
calculation of missing sales data from December 2007. 	Id. at *10.
Finally, Plaintiff challenged the Commerce regulation which used a
regression model to calculate a surrogate labor wage rate. 	See id.
at *14.
The 	Federal 	Circuit 	affirmed 	this 	court’s 	holding 	that
Commerce 	reasonably 	included 	data 	on 	imports 	of 	brass 	bar 	from
Japan, 	France, 	and 	the 	UAE. 	Id. 	at 	*10. 	The 	Federal 	Circuit
vacated and remanded with regards to Commerce’s use of an adverse
inference in the calculation of December 2007 sales. 	Id. at *14.
The 	Federal 	Circuit 	found 	that 	the 	sale 	price 	of 	each 	FSV 	was
determined by an earlier agreement and the gross price of December
FSV sales was on the record. 	Id. at *12. 	Therefore, it held that
Commerce was required “to use a partial AFA only in selecting the
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quantity 	of 	the 	December 	2007 	sales 	of 	the 	FSVs 	at 	issue 	for
purposes of calculating the relevant total dumping margin. 	Id. at
*14.
With regards to surrogate labor rate, after this court issued
Zhejiang 	I, 	affirming 	Commerce’s 	use 	of 	a 	regression 	model, 	the
Federal 	Circuit 	decided 	Dorbest 	Ltd. 	v. 	United 	States, 	604 	F.3d
1363 	(Fed. 	Cir. 	2010), 	invalidating 	the 	regulation 	that 	directed
Commerce 	to 	use 	its 	regression 	model 	and 	instructing 	Commerce 	to
recalculate surrogate labor value using a method in compliance with
19 	U.S.C. 	§ 	1677b(c)(4). 	Both 	parties 	concede 	that 	Dorbest 	is
controlling. 	See Zhejiang II, 2011 WL 2463651 at *14.
Therefore, 	in 	accordance 	with 	the 	decision 	of 	the 	United
States Court of Appeals for the Federal Circuit in Zhejiang II, it
is hereby:
ORDERED 	that 	the 	final 	determination 	and 	issuance 	of 	an
antidumping duty order by Commerce in Frontseating Service Valves
from 	the 	People’s 	Republic 	of 	China, 	74 	Fed. 	Reg. 	10,866 	(Dep’t
Commerce Mar. 13, 2009) (final determination of sales at less than
fair 	value 	and 	final 	negative 	determination 	of 	critical
circumstances), 	challenged 	in 	Court 	No. 	09-00217, 	is 	remanded 	to
Commerce 	for 	action 	consistent 	with 	the 	decision 	in 	Zhejiang 	II;
and it is further
ORDERED 	that 	upon 	remand, 	Commerce 	shall 	revise 	its
calculation of surrogate labor rate in accordance with the decision
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in Dorbest Ltd. v. United States, 604 F.3d 1363 (Fed. Cir. 2010);
and it is further
ORDERED that Commerce’s determination is otherwise affirmed,
and it is further
ORDERED that Commerce shall file its remand results in Court
No. 09-00217 with the Court, and serve the parties with the same,
by 	November 	28, 	2011. 	All 	parties 	may 	file 	and 	serve 	responses
thereto 	by 	December 	12, 	2011. 	All 	parties 	may 	file 	and 	serve 	a
reply to any responses by December 26, 2011.
/s/ Donald C. Pogue
Donald C. Pogue, Chief Judge
Dated: September 28, 2011
New York, New York
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