Allied Pacific Food (Dalian) Co. v. U.S.
| Decision Date | 22 December 2008 |
| Docket Number | Slip Op. 08-138. Court No. 05-00056. |
| Citation | 587 F.Supp.2d 1330 |
| Parties | ALLIED PACIFIC FOOD (DALIAN) CO. LTD., Allied Pacific (H.K.) Co., Ltd., King Royal Investments, Ltd., Allied Pacific Aquatic Products (Zhanjiang) Co. Ltd., Allied Pacific Aquatic Products (Zhongshan) Co. Ltd. and Yelin Enterprise Co., Hong Kong, Plaintiffs, v. UNITED STATES, Defendant. |
| Court | U.S. Court of International Trade |
STANCE U, Judge.
This case arose from plaintiffs' contesting the final, and amended final, less-thanfair-value determination that the International Trade Administration of the U.S. Department of Commerce ("Commerce" or the "Department") issued in an antidumping duty investigation on certain frozen shrimp from the People's Republic of China ("China" or the "PRC"). See Notice of Final Determination of Sales at Less Than Fair Value: for Certain Frozen and Canned Warmwater Shrimp From the People's Republic of China, 69 Fed.Reg. 70,997 (Dec. 8, 2004) ("Final Determination"); Notice of Am. Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From the People's Republic of China, 70 Fed.Reg. 5149 (Feb. 1, 2005) ( ). Before the court is the Department's redetermination issued in response to a remand ordered by the court in Allied Pacific Food (Dalian) Co. Ltd. v. United States, 30 CIT ___, 435 F.Supp.2d 1295 (2006) ("Allied Pacific I"). See Final Results of Redetermination Pursuant to Court Remand (Oct. 27, 2006) ("Remand Redetermination"). Also before the court are plaintiffs' comments on the Remand Redetermination, defendant's response, and three motions pertaining to the redetermination.
Defendant United States moves for another remand order, under which Commerce voluntarily would reconsider and further explain, but not necessarily change, the decision Commerce made in the Remand Redetermination on one of the two major issues addressed by the court's opinion and order in Allied Pacific I. Def.'s Mot. for Voluntary Remand 1-3. That issue is the calculation by Commerce of a surrogate value for raw, head-on, shell-on shrimp, which is the most significant raw material used in the production of the imported merchandise, certain frozen warmwater shrimp from China, that was the subject of the antidumping duty investigation ("subject merchandise") resulting in this litigation. See id. The other major issue in this litigation is the calculation of a surrogate value for the labor used in producing the subject merchandise. Defendant's motion and proposed voluntary remand order do not propose to change the surrogate labor rate set forth in the Remand Redetermination. See id. Both surrogate values are used in determining, for antidumping duty purposes, the normal value of the subject merchandise.
Plaintiffs Allied Pacific Food (Dalian) Co. Ltd., Allied Pacific (H.K.) Co., Ltd., King Royal Investments, Ltd., Allied Pacific Aquatic Products (Zhanjiang) Co. Ltd., Allied Pacific Aquatic Products (Zhongshan) Co. Ltd. (collectively "Allied Pacific") and Yelin Enterprise Co., Hong Kong ("Yelin") oppose defendant's motion for a voluntary remand. Allied Pacific and Yelin have filed separate counter-motions for remands, each of which advocates a remand order under which the court would direct Commerce to redetermine, in specific ways, the surrogate values for raw, head-on, shell-on shrimp and for labor. Pl.'s Opp'n to Def.'s Proposed Voluntary Remand and Counter Mot. for Remand 1-10 ("Allied Pacific Opp'n to Voluntary Remand"); Pl. Yelin's Opp'n to Def.'s Mot. for Voluntary Remand 2-5 ("Yelin Opp'n to Voluntary Remand").
Allied Pacific I arose from plaintiffs' contesting the final determination ("Final Determination") and amended final determination ("Amended Final Determination") and moving for judgment on the agency record according to USCIT Rule 56.2. In their motion, plaintiffs claimed that Commerce failed to adhere to the statutory requirement to value raw shrimp and labor according to the best available information. In Allied Pacific I, the court ordered Commerce to redetermine the surrogate values for raw, head-on, shell-on shrimp and for the labor rate. Allied Pacific I, 30 CIT at ___, 435 F.Supp.2d at 1323. Plaintiffs argue that the Remand Redetermination does not comply with the court's remand order in Allied Pacific I and that the findings Commerce relied upon in the Remand Redetermination are unsupported by substantial record evidence. See Pl.'s Comments on the Department's Remand Determination 1-49 ("Allied Pacific Comments"); Comments of Yelin Enterprise Co., Hong Kong on Remand Determination 1-25 ("Yelin Comments"). Regarding the surrogate labor rate, plaintiffs reiterate specific arguments they made in challenging that rate, including the argument that Commerce did not provide an adequate explanation for the finding that its method produced a more accurate result than plaintiffs' preferred alternative. See Allied Pacific Comments 45-47; Yelin Comments 25. Allied Pacific also requests that the court instruct Commerce to adjust the dumping margin applied to Section A respondents based on the final rates affirmed by the court. Allied Pacific Comments 49.
Defendant's proposed voluntary remand order would direct Commerce either to redetermine the surrogate value for raw, head-on, shell-on shrimp according to a different set of data than that used in the Remand Redetermination or, if Commerce retains its earlier method of valuing the raw shrimp, to provide the court with its reasons for concluding that this method produces a reliable result. Def.'s Mot. for Voluntary Remand 2-4. Allied Pacific and Yelin urge the court not to adopt defendant's proposed remand order, and each moves for a more specific remand order that would direct Commerce to value the raw shrimp according to a different set of data that plaintiffs consider to be the best available information on the record, or, alternatively, to explain why that set of data is not appropriate. Allied Pacific Opp'n to Voluntary Remand 1-9; Yelin Opp'n to Voluntary Remand 2-4. Plaintiffs also argue that the court should direct Commerce to change its method of determining a surrogate labor rate rather than accept the more minor revision to the Department's labor rate calculation that Commerce effected in the Remand Redetermination. Allied Pacific Opp.'n Voluntary Remand 10; Yelin Opp'n to Voluntary Remand 4-5.
For the reasons discussed in this Opinion and Order, the court concludes that the Department's new surrogate value for raw shrimp does not comply with the court's decision in Allied Pacific I. The court also concludes that defendant's proposed voluntary remand order, although addressing some of the shortcomings in the Final Determination and Amended Final Determination, is not in every respect a satisfactory resolution of the issues this case presents regarding the raw shrimp surrogate value. Further, the remand order the court is issuing in this case differs from the proposed remand orders sought in plaintiffs' counter-motions. Concerning the labor wage rate issue, the court concludes that Commerce's redetermined surrogate value for labor was not determined in accordance with law because the regulation and methodology under which the surrogate labor rate was calculated are inconsistent with the antidumping statute. Finally, the court concludes that plaintiff Allied Pacific lacks standing to challenge the dumping margin applied to Section A respondents.
Exercising its jurisdiction under 28 U.S.C. § 1581(c) (2000), the court orders Commerce to file a remand redetermination in which it determines new surrogate values for raw shrimp and labor according to specific directions set forth in this Opinion and Order.
The procedural background of the initial phase of this case is presented in the court's opinion and order in Allied Pacific I, 30 CIT at ___, 435 F.Supp.2d at 1298-1308. That background discussion is supplemented herein to recount the various events occurring since Allied Pacific I was decided on June 12, 2006.
In its Remand Redetermination, issued on October 27, 2006, Commerce lowered the base surrogate value for raw, head-on, shell-on shrimp from the originally-determined $5.97 per kilogram to $5.07 per kilogram and lowered the labor rate from $0.93 to $0.85 per hour. Remand Redetermination 2, 22-23; Issues and Decision Memorandum for the Antidumping Duty Investigation of Certain Frozen and Canned Warmwater Shrimp from the People's Republic of China 18 (Nov. 29, 2004) (Admin.R.Doc. No. 814) ("Decision Mem.".). On remand, Commerce applied these revised surrogate values in recalculating the dumping margins for plaintiffs Allied Pacific and Yelin, lowering Allied Pacific's margin from 80.19% to 55.56% and Yelin's margin from 82.27% to 56.37%. Remand Redetermination 85; Am. Final Determination and Order, 70 Fed.Reg. at 5151. Following the filing of comments on the Remand Redetermination, defendant, on February 13, 2007, filed its motion for a voluntary remand. Allied...
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