United States Court of Appeals
for the Federal Circuit
__________________________
ZHEJIANG DUNAN HETIAN METAL CO., LTD.,
Plaintiff-Appellant,
v.
UNITED STATES,
Defendant-Appellee,
and
PARKER-HANNIFAN CORPORATION,
Defendant-Appellee,
__________________________
2010-1367
__________________________
Appeal from the United States Court of International
Trade in Case No. 09-CV-0217, Judge Donald C. Pogue
_________________________
Decided: June 22, 2011
_________________________
MARK E. PARDO, Grunfeld, Desiderio, Lebowitz, Silverman
& Klestadt LLP, of Washington, DC, argued for plaintiff-
appellant. With him on the brief was ANDREW T. SCHUTZ.
L.Misha Preheim, Trial Attorney, Commercial Litiga-
tion Branch, Civil Division, United States Department of
Justice, of Washington, DC, argued for defendant-appellee
United States. With him on the brief were TONY WEST,
ZHEJIANG DUNAN v. US 2
Assistant Attorney General, JEANNE E. DAVIDSON, Direc-
tor, and PATRICIA M. MCCARTHY Assistant Director. Of
counsel on the brief was JOANNA THEISS, Attorney, Office
of the Chief Counsel for Import Administration, United
States Department of Commerce, of Washington, DC.
DONALD R. DINAN, Roetzel & Andress, LPA, of Wash-
ington, DC, argued for defendant-appellee Parker-
Hannifin Corporation. With him on the brief was CRAIG
A. KOENIGS.
__________________________
Before RADER, Chief Judge, MOORE and O’MALLEY, Cir-
cuit Judges.
O’MALLEY, Circuit Judge.
Zhejiang DunAn Hetian Metal Co. (“DunAn”) appeals
the decision of the United States Court of International
Trade denying DunAn’s Motion for Judgment Upon the
Agency Record. This court has jurisdiction pursuant to 28
U.S.C. § 1295(a)(5). On appeal, DunAn raises three
issues: whether (1) the United States Department of
Commerce (“Commerce”) erred in calculating the surro-
gate value for brass bar by including shipments from
Japan, France, and the United Arab Emirates (“UAE”);
(2) Commerce applied an improper adverse inference to
DunAn’s December 2007 sales quantity data; and (3)
Commerce’s valuation of labor pursuant to 19 C.F.R.
§ 351.408(c)(3) is contrary to 19 U.S.C. § 1677b(c)(4).
DunAn’s notice of appeal was timely. For the reasons
explained below, we vacate and remand.
BACKGROUND
On March 19, 2008, Parker-Hannifin Corp. (“Parker-
Hannifin” or “Appellee”) filed an antidumping petition
(the “Petition”) on behalf of the domestic industry con-
3 ZHEJIANG DUNAN v. US
cerning imports of frontseating service valves (“FSVs”) 1
from the People’s Republic of China (“China”), alleging
that Chinese firms were exporting FSVs to the United
States at prices that were less than fair value. 2 In April
of 2008, Commerce initiated its antidumping duty inves-
tigation. Frontseating Service Valves from the People’s
Republic of China: Preliminary Determination of Sales at
Less Than Fair Value, Preliminary Negative Determina-
tion of Critical Circumstances, and Postponement of Final
Determination, 73 Fed. Reg. 62,952 (Dep’t of Commerce
Oct. 22, 2008) (“Preliminary Determination”). Commerce
established July 1, 2007 through December 31, 2007 as
the period of investigation. Id. On June 30, 2008, Com-
merce selected DunAn as a mandatory respondent for the
investigation. Id. at 62,954. Commerce published its
preliminary determination in October 2008. Id. In March
of 2009, Commerce published its final determination.
1 FSVs are designed to be used in residential air
conditioning and heating systems such as split air condi-
tioning equipment and heat pumps. . . . FSVs are used to
isolate sections of an air conditioning system during
diagnostic servicing, installation, repair, and to permit
technicians to provide refrigerant charging and evacuat-
ing capabilities.” Frontseating Service Valves from China,
Inv. No. 731-TA-1148 (Final), USITC Pub. No. 4073 (April
2009).
2 Pursuant to the antidumping statutes, Commerce
may “determine[] that a class or kind of foreign merchan-
dise is being, or is likely to be, sold in the United States at
less than fair value.” 19 U.S.C. § 1673 (2006). If Com-
merce finds that this activity is occurring, and if the
corresponding domestic industry is materially injured or
is materially hampered from forming by this so called
dumping, Commerce is required to impose a duty on
imports of this foreign merchandise. The duty is set at
“an amount equal to the amount by which the normal
value [of the merchandise in question] exceeds the export
price.” Id.
ZHEJIANG DUNAN v. US 4
Frontseating Service Valves from the People’s Republic of
China: Final Determination of Sales at Less Than Fair
Value and Final Negative Determination of Critical Cir-
cumstances, 74 Fed. Reg. 10,886 (Dep’t of Commerce
March 13, 2009) (“Final Determination”). The factual
background relating to the specific issues presented on
appeal is discussed below.
A. Selection of a Surrogate Value for Brass Bar
For the purposes of antidumping duty investigations,
Commerce considers China to be a non-market economy.
Preliminary Determination, 73 Fed. Reg. at 62,953. As a
result, Commerce employed its non-market economy
methodology to calculate the normal value of the FSVs
DunAn exported. As described by Commerce,
Section 773(c)(1) 3 of the Act directs [Commerce] to
base normal value 4 (“NV”) on the [non-market
economy] producer’s factors of production
(“FOPs”), valued in a surrogate market economy
(“ME”) country or countries considered to be ap-
propriate by [Commerce]. In accordance with sec-
tion 773(c)(4) 5 of the Act, in valuing the FOPs,
[Commerce] shall use, to the extent possible, the
3 This section of The Tariff Act of 1930 was codified
in 19 U.S.C. § 1677b(c)(1).
4 In non-market economy cases, normal value is de-
termined “on the basis of the value of the factors of pro-
duction utilized in producing the merchandise to which
shall be added an amount for general expenses and profit
plus the cost of containers, coverings, and other ex-
penses.” 19 U.S.C. § 1677b(c)(1) (2006). Factors of pro-
duction “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) (2006).
5 Codified in 19 U.S.C. § 1677b(c)(4).
5 ZHEJIANG DUNAN v. US
prices or costs of the FOPs in one or more ME
countries that are: (1) at a level of economic devel-
opment comparable to that of the [non-market
economy] country; and (2) significant producers of
comparable merchandise.
Id. at 62,954 (internal footnotes added). In accordance
with this methodology, Commerce selected India as the
surrogate market economy. Id. (“[Commerce] found that
India is at a level of economic development comparable to
that of [China], is a significant producer of comparable
merchandise (i.e., FSVs) and has publicly available and
reliable data.”).
With respect to the factors of production DunAn util-
ized to manufacture FSVs, DunAn indicated that brass
bar was one of its primary raw materials. To value this
factor of production, DunAn provided a first surrogate
value submission that included Indian import statistics
under Harmonized Tariff Schedule (“HTS”) heading
7407.21.10 covering “brass bars” from the Monthly Statis-
tics of the Foreign Trade of India, as published by the
Government of India’s Directorate General of Commercial
Intelligence and Statistics of the Ministry of Commerce
and Industry, as set forth in the World Trade Atlas (“WTA
Indian import data”). In addition to this information,
DunAn also submitted InfoDrive India data 6 pertaining to
this HTS heading.
6 As described by the Court of International Trade:
Infodrive India Pvt Ltd., an Indian company,
publishes export and import information from
India and other countries. Each month, In-
fodrive India “collects, collates and standard-
izes,” from Indian ports, over two million
export shipping bills and import bills of entry.
Infodrive India then cleans up and stores the
data on its server. Due to inconsistencies in
ZHEJIANG DUNAN v. US 6
To value brass bar for the Preliminary Determination,
Commerce used an average Indian import value, which
represented the average value of all the materials im-
ported into India under HTS category 7407.21.10 as
reported in the WTA Indian import data. Joint Appendix
(“JA”) 247 (“[W]e find that WTA Indian import data
represent the best available information for purposes of
valuing brass bar and have relied upon these data in
calculating margins for this preliminary determination.”).
In its preliminary determination, Commerce concluded
that DunAn’s weighted-average dumping margin was
26.72%. Preliminary Determination, 73 Fed. Reg. at
62,961.
In response to Commerce’s preliminary determina-
tion, DunAn submitted a brief objecting to various aspects
of the determination. Specifically, DunAn argued that, on
the basis of the InfoDrive data, Commerce should exclude
import data from Japan, France, and the UAE because
the materials imported from these countries were not
brass bar. According to DunAn, Commerce’s inclusion of
these materials in its calculation of the brass bar surro-
product information and the fact that, accord-
ing to Infodrive India, “classification is often
wrong,” Infodrive India provides, for each im-
port or export, the actual product description
as well as the reported HTS Code. “Infodrive
India presents Indian government import data
that it receives on a monthly basis from the
Indian customs department.” “Infodrive India
data appears to be the same data provided [in
the WTA] in a desegregated form, providing
descriptions of the items that are imported
and classified under a particular [HTS] sub-
heading.”
Zhejiang DunAn Hetian Metal Co. v. United States, 707 F.
Supp. 2d 1355, 1361 n.12 (Ct. Int’l Trade 2010) (internal
citations omitted).
7 ZHEJIANG DUNAN v. US
gate value rendered it less accurate, and, thus, resulted in
an unduly high weighted-average dumping margin.
Despite DunAn’s arguments, Commerce issued a final
determination that calculated the surrogate value for
brass bar without excluding the imports from Japan,
France, and the UAE. Antidumping Duty Investigation of
Frontseating Service Valves from the People’s Republic of
China: Issues and Decision Memorandum for the Final
Determination, 2009 WL 736059 (Mar. 6, 2009), at com-
ment 4 (“[Commerce] has concluded that for the final
determination, we will continue to include the value of
imports from Japan, France, and the UAE in calculating
the surrogate value for brass bar . . . .”) (“Issues and
Decisions Memorandum”). Explaining its reasoning,
Commerce stated:
[W]ith respect to the imports in question . . . we
find that the Infodrive data contain insufficient
product information in the description of the line
items to enable [Commerce] to make a definitive
determination that these line items are misclassi-
fied. Specifically, the product description in the
Infodrive data are such that, given the depend-
ency upon the chemical make-up of the underlying
products, they could be properly classified within
the Indian HTS category where they are, or in the
category addressed by DunAn. Thus, [Commerce]
cannot determine, due to lack of product detail,
i.e., chemical properties, the precise chemical
make-up of these line items. Accordingly, without
clear evidence to the contrary, [Commerce] will
not speculate that these materials have been mis-
classified. Therefore, pursuant to section 773(c)(1)
of the Act, [Commerce] has determined to include
imports from Japan, France, and the UAE in cal-
culating the surrogate value for brass bar in the
ZHEJIANG DUNAN v. US 8
final determination because the record evidence
does not demonstrate that the imports from these
countries were misclassified.
Id. Commerce found, moreover, “that the WTA [Indian
import data] represent[ed] the best surrogate value in this
case because they are publicly available, product-specific,
contemporaneous, tax exclusive, and representative of
brass bar prices.” JA 403.
B. Application of Partial Adverse Facts Available to
DunAn’s December 2007 Sales
During the period of investigation, DunAn reported
that it had a single U.S. customer. According to DunAn,
it maintained inventory in this customer’s warehouse
through a vendor managed inventory program. Zhejiang
DunAn Hetian Metal Co. v. United States, 707 F. Supp. 2d
1355, 1372 (Ct. Int’l Trade 2010). Pursuant to this pro-
gram, DunAn would ship FSVs from China to the cus-
tomer’s warehouse. The customer only actually
purchased the FSVs when it withdrew them from the
warehouse. Id. At the end of each month, the customer
would send DunAn a consumption report that indicated
how many of each type of FSV it had withdrawn. Id.
Utilizing this information, DunAn would confirm both the
quantities and prices indicated in the report. Id. Con-
firming prices was simple; the sales price for each FSV
was established in a prior agreement between DunAn and
its customer. Issues and Decisions Memorandum, 2009
WL 736059 at comment 12b. That price, moreover, did
not vary on the basis of quantity sold, nor did it vary over
the course of the period of investigation. Confirmation of
the quantity of FSVs the customer removed from the
warehouse was a more complicated exercise. A DunAn
employee at the customer’s warehouse would examine the
product inventory to determine what had been removed.
9 ZHEJIANG DUNAN v. US
Zhejiang, 707 F. Supp. 2d at 1372. If the customer’s
consumption report was correct, DunAn would send an
invoice applying the predetermined prices to the figures
in the report. Id. If the consumption report was inaccu-
rate with respect to quantity, DunAn would correct the
inaccuracies and send the customer a corrected invoice.
Id. In addition, DunAn would keep a record of the dis-
crepancy. Id. DunAn provided Commerce with sales
invoices for the period of investigation.
The Preliminary Determination was made on the ba-
sis of this unverified sales information. See Preliminary
Determination, 73 Fed. Reg. at 62,960. Commerce is,
however, required to “verify all information relied upon”
in making its final determination. 19 U.S.C.
§ 1677m(i)(1) (2006). During verification, Commerce
determined that, for December 2007, DunAn’s customer
paid a total of thirty cents less for that period than the
invoice indicated it owed. Zhejiang, 707 F. Supp. 2d at
1372. When questioned, DunAn provided no reason for
the discrepancy. Id. Commerce also discovered that the
consumption report and the sales invoice for December
2007 did not match; the quantities of FSVs used by Du-
nAn’s customer according to the consumption report
differed significantly from the quantity of FSVs DunAn’s
customer was billed for using. Id.
Initially, DunAn did not have an explanation for these
discrepancies. Id. at 1373. Later, however, DunAn
explained that inaccurate quantities were reported in the
December 2007 consumption report and that DunAn’s
employee at its customer’s warehouse corrected the inac-
curacies in the December 2007 invoice, thereby creating
the discrepancy. Id. Despite DunAn’s stated policy of
keeping records of such inaccuracies, however, it had no
record of any inaccuracy in the consumption report or of
the correction in the invoice. Id. Eventually, DunAn
ZHEJIANG DUNAN v. US 10
indicated that its customer probably misreported the
quantity numbers for financial reasons. Id.
DunAn also maintained separate monthly inventory
reports, which carried over the inventory from the previ-
ous month. 7 Id. Unlike the other monthly inventory
reports, the January 2008 report did not account for the
final inventory from the previous month. 8 Id. at 1374. In
7 Commerce explained that each monthly inventory
report:
[O]ther than January 2008, was similarly
structured: the first column is total inventory
from the previous month, the second column is
inventory received during the current month,
the third column is the total of the previous
two columns, the fourth column is the usage
during the current month, and the fifth col-
umn is the total ending inventory (the third
column total minus the fourth column usage).
This last column is then carried over to the
next month’s [monthly inventory report] as
the first column.
Zhejiang, 707 F. Supp. 2d at 1374 n.44.
8 Describing the January 2008 report, Commerce
stated:
[T]he first column . . . is not the same as the
last column of the December report, i.e., the
ending inventory from December 2007.
Rather, the first column of the January 2008
[monthly inventory report] is the same as the
third column of the December 2007 [monthly
inventory report], i.e., the total inventory in
December before usage is deducted. There-
fore, the last two columns of the December
2007 [monthly inventory report] including De-
cember usage, which consists of the quantities
reported by DunAn in its sales reconciliation,
is excluded from the inventory calculation
starting in January 2008. Secondly, the
January [monthly inventory report] has an
additional column that the other reports do
11 ZHEJIANG DUNAN v. US
other words, the report did not account for the December
2007 inventory remaining after subtracting the U.S.
customer’s purchases for that month; the January 2008
report instead used the U.S. customer’s quantity reported
in the consumption report. Id. After initially providing
no explanation for the discrepancies in the monthly
inventory reports, DunAn eventually indicated that it
varied the structure of the January 2008 monthly inven-
tory report for tax reasons. Id. at 1375.
In light of these inaccuracies and discrepancies,
Commerce concluded that it was unable to verify DunAn’s
sales data for December 2007. Issues and Decisions
Memorandum, 2009 WL 736059 at comment 12c (“We find
that the information to construct an accurate and other-
wise reliable margin with respect to certain of DunAn’s
U.S. sales in the month of December, and the information
to value inventory carrying cost (‘ICC’) for all sales for the
months of October, November and December 2007, is not
available on the record.”). Commerce also concluded that,
in light of DunAn’s failure to provide Commerce with
accurate and verifiable data, and its lack of clarity during
verification, the application of certain partial adverse
not have: a column for the usage of the previ-
ous month: December 2007. We noted that
the December 2007 usage column in January
2008 [monthly inventory report] contained the
quantity figures from the [U.S. customer]
monthly consumer report, not the quantities
from the December 2007 sales invoice. Thus,
the January 2008 [monthly inventory report]
begins with the total inventory of December
2007 (without the deduction of December 2007
usage), and then deducts December 2007 us-
age based on the [U.S. customer] monthly con-
sumption report figures, and January 2008
usage.”
Id.
ZHEJIANG DUNAN v. US 12
facts available (“partial AFA”) inferences was proper with
respect to certain sales of two types of FSVs. Id. (“We
determine that . . . DunAn failed to cooperate by not
acting to the best of its ability to comply with [Com-
merce’s] request for information by not providing it with
accurate and verifiable U.S. sales data, and that the
application of partial AFA is therefore warranted.”). With
respect to these sales, Commerce first applied an adverse
inference to the ICC information it found incalculable on
the basis of DunAn’s record. Commerce then applied
55.62% as the transaction specific dumping margin for
DunAn’s December 2007 sales of the two FSVs. Final
Determination, 74 Fed. Reg. at 10889 (“Accordingly, as
partial AFA for certain U.S. sales, [Commerce] is applying
the rate from the initiation, which is 55.62 percent.”).
C. Regression Analysis to Value Labor
In accordance with 19 C.F.R. § 351.408(c)(3), 9 Com-
merce valued the labor factor of production using regres-
sion analysis that included wage rates and gross national
income data from sixty-one market economy countries.
Zhejiang, 707 F. Supp. 2d at 1366. On this basis, Com-
merce determined that DunAn’s surrogate wage was
$1.04 per hour. Id. at 1368. DunAn argued that this
analysis was impermissible because it utilized data from
countries that were neither economically comparable to
China nor significant producers of comparable merchan-
dise. Issues and Decisions Memorandum, 2009 WL
736059 at comment 3; see also 19 U.S.C. § 1677b(c)(4)
9 For labor, [Commerce] will use regression-based
wage rates reflective of the observed relationship between
wages and national income in market economy countries.
[Commerce] will calculate the wage rate to be applied in
nonmarket economy proceedings each year. The calcula-
tion will be based on current data, and will be made
available to the public.” § 351.408(c)(3) (2010).
13 ZHEJIANG DUNAN v. US
(2006) (“[Commerce] in valuing factors of production . . .
shall utilize, to the extent possible, the prices or costs of
factors of production in one or more market economy
countries that are — (A) at a level of economic develop-
ment comparable to that of the nonmarket economy
country, and (B) significant producers of comparable
merchandise.”). Commerce rejected these arguments, and
utilized this surrogate, regression-based wage rate in its
final determination. Issues and Decisions Memorandum,
2009 WL 736059 at comment 3 (“Because the Depart-
ment’s regression analysis utilizes the best available
information for the calculation of a surrogate value for
labor, complies with [Commerce’s] regulation, and com-
ports with the statute, [Commerce] continues to value
labor in this case using its regression analysis . . . .”).
D. The Court of International Trade’s Decision
DunAn appealed Commerce’s final determination to
the Court of International Trade. Zhejiang, 707 F. Supp.
2d at 1359. In this appeal, DunAn challenged a variety of
Commerce’s determinations, including the three issues
raised before this court. Sustaining Commerce’s final
determination in all respects, the Court of International
Trade denied DunAn’s Motion. Id. at 1382.
DISCUSSION
A. Standard of Review
We review “a decision of the Court of International
Trade evaluating an antidumping determination by
Commerce by reapplying the statutory standard of review
that the Court of International Trade applied in reviewing
the administrative record.” Nippon Steel Corp. v. United
States, 337 F.3d 1373, 1379 (Fed. Cir. 2003) (citing Ta
Chen Stainless Steel Pipe, Inc. v. United States, 298 F.3d
1330, 1335 (Fed. Cir. 2002)). In recognition of Com-
ZHEJIANG DUNAN v. US 14
merce’s expertise in administering the antidumping laws,
courts grant deference to its decisions. See, e.g., Id. at
1379 (“Commerce’s special expertise in administering the
anti-dumping law entitles its decisions to deference from
the courts.”); Torrington Co. v. United States, 68 F.3d
1347, 1350–51 (Fed. Cir. 1995). We will “uphold Com-
merce’s determination unless it is ‘unsupported by sub-
stantial evidence on the record, or otherwise not in
accordance with law.’ ” Micron Tech., Inc. v. United
States, 117 F.3d 1386, 1393 (Fed. Cir. 1997) (quoting 19
U.S.C. § 1516a(b)(1)(B)(i) (2006)).
Substantial evidence is defined as “such relevant evi-
dence as a reasonable mind might accept as adequate to
support a conclusion.” Nippon, 337 F.3d at 1379 (quoting
Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938)).
This court reviews the record as a whole, including evi-
dence that supports as well as evidence that “fairly de-
tracts from the substantiality of the evidence.” Id. at
1379 (quoting Atl. Sugar, Ltd. v. United States, 774 F.2d
1556, 1562 (Fed. Cir. 1984)). In sum, the question before
this court on review is whether “the administrative record
contains substantial evidence to support the determina-
tion and was it a rational decision.” Gerald Metals, Inc. v.
United States, 132 F.3d 716, 720 (Fed. Cir. 1997) (citation
omitted).
B. Commerce’s Calculation of the Brass Bar Surro-
gate Value
DunAn’s first argument on appeal is that Commerce
erred when it calculated the surrogate value for brass bar
using the WTA Indian import data that included imports
from Japan, France, and the UAE. DunAn argues that
Commerce should have excluded the imports from Japan,
France, and the UAE from the WTA Indian import data
before it calculated the surrogate value for brass bar. In
15 ZHEJIANG DUNAN v. US
support, DunAn provided Commerce with InfoDrive data
that it argued established that the imports from these
countries were not brass bar and had been imported
under the incorrect HTS heading.
Commerce refused to exclude the imports from these
countries because:
the product description in the Infodrive data are
such that, given the dependency upon the chemi-
cal make-up of the underlying products, they
could be properly classified within the Indian HTS
category where they are, or in the category ad-
dressed by DunAn. Thus, the Department cannot
determine, due to lack of product detail, i.e.,
chemical properties, the precise chemical make-up
of these line items. Accordingly, without clear evi-
dence to the contrary, the Department will not
speculate that these materials have been misclas-
sified.
Issues and Decisions Memorandum, 2009 WL 736059 at
comment 4. The Court of International Trade found that
substantial evidence supported Commerce’s decision not
to exclude the imports from these countries because there
was insufficient evidence in the record upon which Com-
merce could have concluded that the imports from these
countries were imported under the incorrect HTS head-
ing, and thus, were not representative of the material
DunAn used to manufacture FSVs. Zhejiang, 707 F.
Supp. 2d at 1363–65.
Commerce’s selection of a value for brass bar is gov-
erned by 19 U.S.C. § 1677b(c). This statute requires
Commerce to choose data that is the “best available
information” on the record. § 1677b(c)(1). Commerce is
granted broad discretion to determine whether informa-
tion is the best available because the statute does not
ZHEJIANG DUNAN v. US 16
define the term. Taian Ziyang Food Co. v. United States,
637 F. Supp. 2d 1093, 1125 (Ct. Int’l Trade 2009) (citing
Rhodia, Inc. v. United States, 185 F. Supp. 2d 1343, 1351
(Ct. Int’l Trade 2001)). In determining the valuation of
the factors of production, “the critical question is whether
the methodology used by Commerce is based on the best
available information and establishes the antidumping
margins as accurately as possible.” Shakeproof Assembly
Components v. United States, 268 F.3d 1376, 1382 (Fed.
Cir. 2001). This court’s duty is “not to evaluate whether
the information Commerce used was the best available,
but rather whether a reasonable mind could conclude that
Commerce chose the best available information.” Gold-
link Indus. Co. v. United States, 431 F. Supp. 2d 1323,
1327 (Ct. Int’l Trade 2006).
The thrust of DunAn’s argument is that the record es-
tablished that the imports from Japan, France, and the
UAE were not brass bar. Accordingly, because these
imports were not representative of the input DunAn
actually used “it [was] unreasonable for Commerce to use
these shipments in its surrogate value calculation even if
they were properly classified [in the HTS heading].”
DunAn Br. 38. The problem with DunAn’s argument is
that the record does not establish that the materials
imported from Japan, France, and the UAE were products
other than brass bar.
DunAn is correct that the InfoDrive data included “ac-
tual product descriptions” of the materials imported from
Japan, France, and the UAE. It is also correct that,
according to the product descriptions, the materials
imported from these countries were copper bar, bronze
bar, beryllium copper flat bar, beryllium copper round bar
and cupro nickel bar. DunAn, moreover, provided evi-
dence that such materials were not representative of the
material it used to manufacture FSVs, and that these
17 ZHEJIANG DUNAN v. US
materials would be imported under different HTS head-
ings, not 7407.21.10. DunAn is, however, incorrect that
all of this information “plainly established that 100% of
the shipments from these three countries were for prod-
ucts other than the brass bar used by DunAn to produce
the subject valves.” DunAn Br. 29.
Here, Commerce was faced with two sets of data and
those data points were inconsistent. The first is the HTS
heading under which the materials in question were
imported into India. The other set of data is the product
descriptions contained in the InfoDrive data. As DunAn
concedes, for the imports in question, it is impossible for
both the HTS heading and the product descriptions to be
accurate. If the product descriptions are accurate, the
materials should have been imported under a different
HTS heading. If, on the other hand, the HTS heading is
correct, the product descriptions must be incorrect. The
evidence DunAn provided does not establish which data
set is correct.
Instead, DunAn simply assumes that InfoDrive’s
product descriptions are correct and the HTS headings
incorrect. For example, DunAn maintains that “[t]he
InfoDrive India data on this record showed that many of
the shipments within HTS 7407.21.10 were not actually
brass bar.” DunAn Br. 35. In support, DunAn only points
to the Court of International Trade’s discussion of how
InfoDrive creates its data. Id. at 34–35 (discussing quota-
tion cited supra n.6). This discussion by the Court of
International Trade does not establish that the descrip-
tions contained in the InfoDrive data are accurate, how-
ever. Specifically, according to InfoDrive, it receives its
data directly from the Indian Customs officials and then
“presents the Indian customs data exactly as it is re-
ceived, without additions or deletions.” Dorbest Ltd. v.
United States, 462 F. Supp. 2d 1262, 1282 (Ct. Int’l Trade
ZHEJIANG DUNAN v. US 18
2006) (“Infodrive India data appears to be the same data
provided [in the WTA] in a desegregated form, providing
descriptions of the items that are imported and classified
under a particular [HTS] subheading.”).
As the Court of International Trade in this case said,
“[e]ach month, Infodrive India collects, collates and stan-
dardizes from Indian ports, over two million export ship-
ping bills and import bills of entry.” Zhejiang, 707 F.
Supp. 2d at 1361 n.12 (internal citations and quotations
omitted). Given this volume, there is no reason to believe
and no evidence in the record to indicate that InfoDrive
does anything to verify the information it receives. While
InfoDrive states that it includes both product descriptions
and HTS headings because the “classification is often
wrong,” id., this does not establish ipso facto that it is the
product descriptions which are correct. As DunAn ad-
mits, InfoDrive provides “an actual product description for
the shipment taken from the shipping bill.” DunAn Reply
Br. 1. What DunAn overlooks is that the same importer
who classified the goods into an HTS heading also pro-
vided the apparently conflicting description of the goods.
Oral Argument at 6:45, Zhejiang DunAn Hetian Metal Co.
v. United States, No. 2010-1367 (Fed. Cir. Mar. 3, 2011),
available at
http://oralarguments.cafc.uscourts.gov/Audiomp3/2010-
1367.mp3. 10 DunAn offers no concrete reason to assume
10 At oral argument, the following exchange oc-
curred:
Court: “Who classified them?”
Counsel for DunAn: “Whoever the importer
was in India or their customs broker.”
Court: “So the importer classifies them and he
also provides information so he says here is
19 ZHEJIANG DUNAN v. US
that, where a conflict in the two is apparent, the product
description provided is always correct, while the HTS
heading the same source provided is always incorrect.
The InfoDrive product descriptions and the HTS headings
it reports are all from the same source. Accordingly,
where the HTS heading and the product descriptions are
mutually exclusive, it is not possible, on the basis of only
the InfoDrive descriptions and the HTS headings, to
determine which is correct, and Commerce has no obliga-
tion to assume that the HTS heading — the data point
upon which it normally relies — should not control.
The cases and determinations in prior dumping inves-
tigations cited by DunAn do not alter this conclusion.
Those cases all share the common fact that the HTS
heading chosen by Commerce was overly inclusive. In
other words, the HTS heading, by definition, included
materials that were not representative of the inputs
utilized by the manufacturer. For this reason, both the
HTS heading and the product descriptions could describe
accurately the materials imported. In that situation,
calculating a surrogate value on the basis of every mate-
rial imported under the HTS heading, in the face of
InfoDrive descriptions suggesting that certain imports
were not representative, might well conflict with Com-
merce’s obligation to use the best available evidence for
its calculation of surrogate value.
In Longkou Haimeng Machinery Co. v. United States,
for example, Commerce selected an HTS heading which
contained several different types of pig iron, all of which
my HTS classification and I am importing
copper bar.”
Counsel for DunAn: “Correct . . . .”
Oral Argument at 6:45, DunAn v. United States, No.
2010-1367.
ZHEJIANG DUNAN v. US 20
had less than or equal to 0.5% phosphorous. 581 F. Supp.
2d 1344, 1361–62 (Ct. Int’l Trade 2008). The manufac-
turer cited InfoDrive data indicating that as much as 70%
of the material imported into India under the relevant
HTS heading was Sorelmetal. Id. at 1363. Sorelmetal
was not suitable for manufacture of the subject merchan-
dise because it has very different properties than the
specific pig iron the manufacturer utilized. Id. In re-
sponse to this argument, Commerce stated that it had
chosen this heading because it was contemporaneous with
the period of review and it was specific to the raw mate-
rial used by the manufacturer because the manufacturer
indicated that it used pig iron with less than or equal to
0.5% phosphorous. Id. at 1362. The Court of Interna-
tional Trade found Commerce’s argument insufficient to
explain why the HTS heading was the best available
information for valuing the pig iron utilized by the manu-
facturer. Id. at 1363. The court concluded that Com-
merce’s argument:
[d]id not address the question of whether or not
the pig iron imports into India, under HTS
7201.1000, are consistent with the pig iron con-
sumed by Plaintiffs. Therefore, the Court finds
that Commerce failed to adequately explain
whether the Indian imports under HTS 7201.1000
are the best available information for valuing pig
iron consumed by the Plaintiffs in the production
of subject merchandise.
Id.
DunAn does not dispute that the HTS heading se-
lected by Commerce is the heading under which the type
of brass bar it uses should be categorized during importa-
tion into India. Nor does it argue that the category is
extremely broad such that it properly also includes mate-
21 ZHEJIANG DUNAN v. US
rials other than those DunAn utilizes. See Zhejiang, 707
F. Supp. 2d at 1365. Instead, DunAn argues that the
imports from Japan, France, and the UAE were improp-
erly categorized during importation and should have been
imported under other HTS headings. Commerce and the
court below concluded that the imports from Japan,
France, and the UAE should be included in Commerce’s
calculation because the InfoDrive data was not, standing
alone, sufficient evidence to support DunAn’s contention
that the imports from these countries received incorrect
HTS headings during importation. Thus, unlike the
circumstances in Longkou Haimeng Machinery Co., here
the HTS heading is not so broad that it could encompass
the InfoDrive descriptions. Given this fact, Commerce
was unwilling to find that the materials were improperly
categorized based on the InfoDrive description, absent
some other evidence to indicate that the InfoDrive de-
scriptions were correct, and the HTS heading incorrect.
Issues and Decisions Memorandum, 2009 WL 736059 at
comment 4.
DunAn notes that Commerce was admonished previ-
ously by the Court of International Trade for not affording
InfoDrive data sufficient weight. 11 These cases do not, as
the Court of International Trade determined in this case,
stand for the broad proposition that InfoDrive data must
control Commerce’s decision making. Zhejiang, 707 F.
Supp. 2d at 1364–65. These cases focus on a complete
failure to address “whether or not Infodrive India casts
light on potential inaccuracies” in the WTA data. Dorbest,
462 F. Supp. 2d at 1284. Here, however, Commerce did
address the relevance of the InfoDrive descriptions. As
the Court of International Trade concluded, “Commerce,
11 E.g., Taian Ziyang Food Co., 637 F. Supp. 2d at
1149; Longkou Haimeng Machinery Co., 581 F. Supp. 2d
at 1363; Dorbest, 462 F. Supp. 2d at 1286, 1288.
ZHEJIANG DUNAN v. US 22
assuming the Infodrive data were in fact reliable, directly
discussed Infodrive India’s relevance to the WTA data and
found the Infodrive data to be inconclusive.” Zhejiang,
707 F. Supp. 2d at 1365.
Contrary to DunAn’s assertion, moreover, Commerce
was not addressing the wrong issue when it stated that it
would require additional information — such as chemical
analysis of the imports in question — before it would
conclude that the imports were classified incorrectly. Id.
DunAn is correct that the question before Commerce was
whether the imports in the classification chosen by Com-
merce were representative of the input DunAn utilized.
Because DunAn did not argue that the 7407.21.10 HTS
heading properly would have included inputs that were
not representative of the input it utilized, however, the
only question was whether the products from Japan,
France, and the UAE were characterized properly under
this HTS heading. On the record before it, Commerce
would need to resort to speculation to conclude that they
were not. We cannot say, therefore that no reasonable
mind could conclude that Commerce calculated the surro-
gate value as accurately as possible.
Finally, DunAn cites Lightweight Thermal Paper
From the People’s Republic of China: Final Determination
of Sales at Less Than Fair Value, 73 Fed. Reg. 57,329
(Oct. 2, 2008), and accompanying Issues & Decision
Memorandum at comment 9, claiming it sets forth the
test Commerce must employ to determine when it will
consider InfoDrive data. As articulated in Lightweight
Thermal Paper,
[Commerce] also considers Infodrive data when
further evaluating import data, provided the fol-
lowing conditions are met: 1) there is direct and
substantial evidence from Infodrive reflecting the
23 ZHEJIANG DUNAN v. US
imports from a particular country; 2) a significant
portion of the overall imports under the relevant
HTS category is represented by the Infodrive In-
dia data; and 3) distortions of the AUV [average
unit value] in question can be demonstrated by
the Infodrive data.
Id. Deciding to exclude certain imports from an HTS
basket category on the basis of InfoDrive data, Commerce
in Lightweight Thermal Paper stated,
Petitioner has placed on the record Infodrive im-
port data representing approximately 88 percent
of the imports of the base paper HTS category
from the United States into India for the [period
of investigation]. These data indicate that a sig-
nificant majority (i.e., over 90 percent) of these
imports are not first quality base paper, but
rather are almost all “mill rejected” paper (i.e., de-
fective merchandise) along with some “coated
printing” paper. Because the total imports from
the United States constitute 68 percent of all im-
ports into India under this HTS category, and be-
cause they have an AUV that is 70 percent below
that of the next largest exporter, we find that such
imports of “mill rejected” paper are aberrational
with respect to other base paper import values
and have a demonstrably distortive effect on the
overall AUV, lowering it by more than 60 percent.
Id.
This test does not support excluding the imports from
Japan, France, and the UAE on the record in this case,
however. DunAn has not provided any evidence with
respect to what percentage of the total exports into India
under the HTS heading in question are from Japan,
France, and the UAE, nor has it provided evidence that
ZHEJIANG DUNAN v. US 24
the overall AUV is dramatically distorted. 12 Indeed,
Commerce noted that the InfoDrive data only accounted
for 26% of the WTA data. Thus, even if Lightweight
Thermal Paper sets forth a controlling test for our consid-
eration, based on this record, DunAn cannot establish
prongs two and three of that test.
Because Commerce’s reading of the evidence was rea-
sonable, the court rejects DunAn’s challenge to Com-
merce’s use of HTS 7407.21.10, including data on imports
from Japan, France, and the UAE, to calculate the surro-
gate value of brass bar. Accordingly, the Court of Inter-
national Trade did not err by including the imports from
Japan, France, and the UAE.
C. Application of Partial Adverse Facts Available
The second issue before this court is whether Com-
merce properly selected the adverse inference it applied to
certain sales of FSVs in December 2007. 13 DunAn does
not challenge Commerce’s finding that use of facts other-
wise available and an adverse inference were necessary.
It only disputes the extent to which Commerce resorted to
the use of adverse inferences in its calculation. More
specifically, Commerce found the sales volume data for
December 2007 lacking and found that there was insuffi-
cient data available to value the ICC for all sales in
October, November and December — i.e., it made a de-
12 The Court of International Trade determined that
removing the imports from Japan, France, and the UAE
would decrease the overall AUV by 8.13%. Zhejiang, 707
F. Supp. 2d at 1362 n.18.
13 In addition, DunAn argues, in the alternative,
that “the transaction specific margin of 55.64% [sic] from
the petition that Commerce applied to these sales was
unsupported by record evidence.” DunAn Br. 44. Given
our conclusion that Commerce improperly selected the
partial AFA it applied, we do not reach this issue.
25 ZHEJIANG DUNAN v. US
termination that it needed to resort to facts otherwise
available to fill these gaps in the record. As to the ICC,
Commerce filled the gap with a partial adverse inference
with which DunAn does not take issue on appeal. It is the
way Commerce chose to address the gap in the December
2007 sales data to which DunAn objects. In response to
the missing December 2007 sale data, Commerce applied
a 55.62% transaction specific dumping margin to the sales
of two types of FSVs in that month. The Court of Interna-
tional Trade concluded that use of that margin was sup-
ported by substantial evidence. Zhejiang, 707 F. Supp. 2d
at 1379. It is that conclusion which DunAn appeals.
Resolution of this issue requires an examination of
the statutes relating to the application of both facts
otherwise available and adverse inferences. 19 U.S.C.
§ 1677e(a) governs the application of facts otherwise
available. Commerce may use facts otherwise available in
reaching its determination, specifically where:
(1) necessary information is not available on the
record, or
(2) an interested party or any other person —
(A) withholds information that has been requested
by the administering authority or the Commission
under this title,
(B) fails to provide such information by the dead-
lines for submission of the information or in the
form and manner requested, subject to . . . [other
provisions not relevant here],
(C) significantly impedes a proceeding under this
title, or
(D) provides such information but the information
cannot be verified as provided in [19 U.S.C.
§ 1677m(i)] . . . .
ZHEJIANG DUNAN v. US 26
19 U.S.C. § 1677e(a) (2006). Commerce’s use of an ad-
verse inference is governed by 19 U.S.C. § 1677e(b), which
provides:
If [Commerce] finds that an interested party has
failed to cooperate by not acting to the best of its
ability to comply with a request for information
from the administering authority or the Commis-
sion, [Commerce], in reaching the applicable de-
termination under this subtitle, may use an
inference that is adverse to the interests of that
party in selecting from among the facts otherwise
available. Such adverse inference may include re-
liance on information derived from — (1) the peti-
tion, (2) a final determination in the investigation
under this subtitle, (3) any previous review under
§ 1675 of this title or determination under § 1675b
of this title, or (4) any other information placed on
the record.
19 U.S.C. § 1677e(b) (2006).
As these two subsections make clear, Commerce first
must determine that it is proper to use facts otherwise
available before it may apply an adverse inference E.g.,
Shandong Huarong Machinery v. United States, 435 F.
Supp. 2d 1261, 1289 (Ct. Int’l Trade 2006) (“Absent a
valid decision to use facts otherwise available, Commerce
may not use an adverse inference.”). The use of facts
otherwise available, moreover, is only appropriate to fill
gaps when Commerce must rely on other sources of in-
formation to complete the factual record. Nippon, 337
F.3d at 1381 (noting that “[t]he mere failure of a respon-
dent to furnish requested information — for any reason —
requires Commerce to resort to other sources of informa-
tion to complete the factual record on which it makes its
27 ZHEJIANG DUNAN v. US
determination”). After Commerce has determined that
the use of facts otherwise available is proper, it can “ ‘use
an inference that is adverse to the interests of [a respon-
dent] in selecting from among the facts otherwise avail-
able,’ only if Commerce makes the separate determination
that the respondent ‘has failed to cooperate by not acting
to the best of its ability to comply.’ ” Id. (quoting
§ 1677e(b)).
Here, Commerce argues that it could not determine
the transaction specific dumping margin for the December
2007 sales of the two FSVs in question and that DunAn
failed to cooperate fully in Commerce’s effort to do so.
Accordingly, Commerce filled this gap by selecting 55.62%
as the transaction specific dumping margin for the De-
cember 2007 sales of these FSVs. DunAn responds that
Commerce could have calculated the transaction specific
dumping margin for the December 2007 sales with veri-
fied data in the record and, thus, did not need to resort to
any adverse inference on this issue.
Dumping margin is defined as “the amount by which
the normal value exceeds the export price or constructed
export price of the subject merchandise.” 19 U.S.C.
§ 1677(35)(A) (2006). 14 The sale price of each FSV was
determined in a prior agreement between DunAn and its
customer and not when the actual sale of each FSV oc-
curred. 15 Issues and Decisions Memorandum, 2009 WL
14 The formula for this determination is: (normal
value – net U.S. price)/net U.S. price = Dumping margin.
This margin is different for each product sold, so it is
referred to as the transaction specific dumping margin.
15 Parker-Hannifin admitted this fact when it ar-
gued that DunAn listed the incorrect date as the date of
sale. Issues and Decisions Memorandum, 2009 WL
736059 at comment 12b. It argued “that the record evi-
dence shows that DunAn’s agreement with its customer
ZHEJIANG DUNAN v. US 28
736059 at comment 12b. Significantly, the price of each
type of FSV was fixed during the entire period of investi-
gation and did not vary depending on quantity of product
ordered. As DunAn stated, “[w]ith respect to all selling
and movement expenses necessary to derive the net U.S.
price of these sales, Commerce only took issue with the
reported inventory carrying cost amounts (a separate AFA
finding not being challenged herein).” DunAn Br. 51.
Commerce verified the other factor of production data it
needed to calculate the normal value for each valve
model. Parker-Hannifin concedes the only missing infor-
mation was the December sales quantity of the two FSVs
at issue. See Parker-Hannifin Br. 16 (“While it may be
possible to apply facts otherwise available to a single
factor in certain circumstances, it is not possible here
because Commerce could not calculate the margin without
the missing sales quantity information.”).
Thus, the issue before this court is whether it is pos-
sible to calculate a transaction specific dumping margin
without sales quantity. In this case, we find that it is.
Parker-Hannifin is correct that, when units are sold and
the only data related to the sale is the gross price, you
must know the quantity of units sold to determine gross
price per unit. Quantity sold is not required, however,
when a unit is sold at a predetermined gross unit price; if
the gross unit price is already known, it is, by definition,
independently verifiable. As Parker-Hannifin concedes,
gross unit price is all that is required for Commerce to
determine the net unit price. With this information,
Commerce can determine the transaction specific dump-
ing margin for sales of the two FSVs in the month of
December 2007. Of course, the quantity of the FSVs sold
established the price of goods that the customer could
then withdraw from the inventory at will.” Id.
29 ZHEJIANG DUNAN v. US
in December 2007 is required to determine DunAn’s
overall dumping margin. DunAn concedes this point.
DunAn Br. 52 (“[DunAn’s] overall dumping margin is
then derived by calculating a weighted average of each
transaction-specific dumping margin on the basis of the
quantities for each reported sale.”).
Because Commerce could have calculated the transac-
tion specific dumping margin for the December 2007 sales
of the FSVs in question without the sales quantity of
these FSVs, we must determine whether Commerce
properly applied 55.62% as a partial AFA in such circum-
stances
The cases cited by Parker-Hannifin in support of its
argument that Commerce was allowed to apply a partial
AFA, as it did in this case, do not support that argument.
E.g., F.Lli De Cecco Di Filippo Fara S. Martino S.p.A v.
United States, 216 F.3d 1027 (Fed. Cir. 2000); Nippon,
337 F.3d at 1377–78. F.Lli De Cecco, for example, does
not address the issue presented in this case; it dealt with
the discretion Commerce is afforded in selecting which
adverse inference it wants to use to fill the gap in the
record created by a party’s failure to provide necessary
information. F.Lli De Cecco, 216 F.3d at 1032–33. F.Lli
De Cecco simply does not address what constitutes a “gap”
in the record. Similarly, Nippon does not support Parker-
Hannifin’s position. While Nippon dealt with the applica-
tion of an adverse inference in selecting a transaction
specific dumping margin, the court made clear that,
without the information withheld by the manufacturer,
Commerce could not determine the transaction specific
dumping margin. Nippon, 337 F.3d at 1377–78. Again,
Nippon dealt with the propriety of the adverse inference,
not with determining what constituted a gap in the record
before Commerce.
ZHEJIANG DUNAN v. US 30
Finally, Parker-Hannifin cites Steel Authority of In-
dia, Ltd. v. United States, 149 F. Supp. 2d 921 (Ct. Int’l
Trade 2001), in support of its argument. As DunAn
argues, that case is not analogous to this one. In Steel
Authority, the court addressed whether Commerce cor-
rectly used an adverse inference when applying “total
facts available.” Id. at 926–27. “Total facts available” is
used by Commerce in situations where none of the re-
ported data is reliable or usable. Id. at 928–29 (upholding
use of total facts available where all of the manufacturer’s
submitted data exhibited pervasive and persistent defi-
ciencies that cut across all aspects of the data). In Steel
Authority, the manufacturer argued that Commerce had
to utilize some of the evidence it provided, which Com-
merce verified. The court held that, in the context of total
facts available, Commerce can ignore all data submitted
where the bulk of it is determined to be flawed and un-
verifiable. Id. Steel Authority does not stand for the
proposition that, when Commerce uses a partial AFA, it
can ignore evidence that is both verified and directly
pertinent to the determinations Commerce must make.
Steel Authority did not hold that Commerce may use an
AFA to do more than fill the actual gap in the record.
Gerber Food (Yunnan) Co. v. United States, 387 F.
Supp. 2d 1270 (Ct. Int’l Trade 2005), directly addresses
the issue before the court. In Gerber, the manufacturer’s
presented inconsistent information regarding the extent
to which one of the manufacturers acted as an export
agent for the other. Id. at 1281. The Court of Interna-
tional Trade found that, despite these inconsistencies,
there remained adequate information in the record to
calculate the assessment rates for both manufacturers.
Id. at 1282. Commerce had declined to use this informa-
tion to calculate the assessment rates and, instead, ap-
plied an AFA to select the assessment rate. Id. at 1281–
31 ZHEJIANG DUNAN v. US
83. After discussing the relevant statutes and case law,
the court concluded that, “[b]ecause Commerce is empow-
ered to use adverse inferences only in ‘selecting from
among the facts otherwise available,’ it may not do so in
disregard of information of record that is not missing or
otherwise deficient.” Id. at 1288. While this reasoning is
not binding on this court, it is persuasive.
For the reasons stated in Gerber, and under the plain
language of § 1677e(a), it is clear that Commerce can only
use facts otherwise available to fill a gap in the record.
Here, the gap in the record is the quantity of two FSVs
sold in December 2007. Because Commerce could calcu-
late the transaction specific dumping margin for these
FSVs without that missing information, it was improper
for Commerce to apply an AFA and choose 55.62% as the
transaction specific dumping margin. The Court of Inter-
national Trade, thus, erred by concluding that Commerce
properly applied the AFA. The case is remanded to the
Court of International Trade with instructions to use a
partial AFA only in selecting the quantity of the Decem-
ber 2007 sales of the FSVs at issue for purposes of calcu-
lating the relevant total dumping margin.
D. Calculation of Surrogate Labor Rate
The final issue on appeal is whether 19 C.F.R.
§ 351.408(c)(3), relating to the use of regression analysis
to value labor, is contrary to 19 U.S.C. § 1677b(c)(4). As
both parties concede, Dorbest Ltd. v. United States, 604
F.3d 1363, 1372 (Fed. Cir. 2010), which was decided after
the Court of International Trade issued its opinion in this
case, is controlling. Dorbest held that Commerce’s use of
regression analysis to determine the value of labor, in
accordance with § 351.408(c)(3), is contrary to
§ 1677b(c)(4). Id. In light of Dorbest, this court agrees
with the parties that the Court of International Trade’s
ZHEJIANG DUNAN v. US 32
opinion was incorrect. In situations involving non-market
economies, “given that the governing statute requires the
use of data from economically comparable market-
economy countries that are significant producers of com-
parable merchandise unless such data are not available,
19 C.F.R. § 351.408(c)(3) does not comply with the statu-
tory requirements.” Id. Accordingly, this case is re-
manded to the Court of International Trade to value labor
in accordance with Dorbest.
CONCLUSION
For the reasons discussed above, the judgment of the
Court of International Trade is vacated. This case is,
accordingly, remanded to the Court of International Trade
for further proceedings to determine: (1) the partial AFA
with respect to quantity of the FSVs in question sold in
December 2007 for purposes of calculating DunAn’s total
dumping margin based on the transaction specific dump-
ing margin which is verifiable from the record; and (2) the
labor value, using a method that complies with Dorbest.
VACATED AND REMANDED
COSTS
No Costs.