SLIP OP 11–120
UNITED STATES COURT OF INTERNATIONAL TRADE
ZHEJIANG DUNAN HETIAN METAL CO.,
LTD.
Plaintiff,
v.
UNITED STATES, Before: Pogue, Chief Judge
Court No. 09-00217
Defendant,
- and -
PARKER-HANNIFIN CORP.,
Defendant-
Intervenor.
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
Court No. 09-00217 Page 2
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
Court No. 09-00217 Page 3
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
Court No. 09-00217 Page 4
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