Pacific Giant, Inc. v. United States

Slip Op. 02 -140
UNITED STATES COURT OF INTERNATIONAL TRADE
BEFORE: GREGORY W. CARMAN, CHIEF JUDGE
PACIFIC GIANT, INC., et al.,
Plaintiffs,
v.
UNITED STATES OF AMERICA, Court No. 01-00340
Defendant,
and
CRAWFISH PROCESSORS ALLIANCE,
et al.,
Defendant-
Intervenors.
[The Department of Commerce’s Final Results of Determination Pursuant to Court
Remand are affirmed.]
Dated: December 2, 2002
Garvey, Schubert & Barer (John C. Kalitka, William E. Perry), Washington, D.C., for
Plaintiffs.
Robert D. McCallum, Jr., Assistant Attorney General; David M. Cohen, Director,
Commercial Litigation Branch, Civil Division, United States Department of Justice; Mark L.
Josephs, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States
Department of Justice; Arthur D. Sidney, Attorney, Office of the Chief Counsel for Import
Administration, of Counsel, for Defendant.
Adduci, Mastriani & Schaumberg, L.L.P. (Will E. Leonard, Mark Leventhal, John C.
Steinberger), Washington, D.C., for Defendant-Intervenors.
Court No. 01-00340 Page 2
OPINION
CARMAN , CHIEF JUDGE: This Court reviews the United States Department of
Commerce’s (“Commerce”) Final Results of Determination Pursuant to Court Remand (October
15, 2002) (“Remand Results”). The Remand Results were issued in response to the Court’s
Order of August 6, 2002. The remand directed Commerce to further explain its decision to apply
adverse facts available to the labor production factors of Huaiyin Foreign Trade Corporation No.
30 (“HFTC30”) for direct sales channel, as determined in Freshwater Crawfish Tail Meat From
the People’s Republic of China: Notice of Final Results of Antidumping Duty Administrative
Review and New Shipper Reviews, and Final Partial Rescission of Antidumping Duty
Administrative Review, 66 Fed. Reg. 20,634 (Apr. 24, 2001), amended by Freshwater Crawfish
Tail Meat From the People’s Republic of China: Amended Final Results of Administrative
Review and New Shipper Reviews, 66 Fed. Reg. 30,409 (June 6, 2001). Pacific Giant, Inc. v.
United States, No. 01-00340, slip op. 02-83 (Ct. Int’l Trade Aug. 6, 2002). Specifically, this
Court ordered Commerce to:
1. Reconsider Commerce’s conclusion that HFTC30 failed to act to the best of its
ability to comply with Commerce’s requests for information for the direct sales
channel. Id. at 14.
2. Further explain its conclusion by showing that (a) HFTC30 could comply with
the request for information; and (b) either HFTC30’s willful decision not to
comply or HFTC30’s insufficient attention to its statutory duties under the unfair
trade laws. Id. (quoting Nippon Steel Corp. v. United States, 118 F. Supp. 2d
1366, 1378 (2000)).
3. Explain why the missing information regarding labor production factors is
significant to the administrative review. Id. at 15 (quoting Nippon Steel, 118 F.
Supp. 2d at 1378-79).
Court No. 01-00340 Page 3
4. Provide to the Court the appropriate labor factor to apply if Commerce reached
the same conclusion in its Remand Results. Id.Plaintiffs have not submitted any comments to Commerce’s Remand Results to the
Court.1 Upon consideration of the Remand Results, the Court holds that Commerce duly
complied with the Court’s August 6, 2002 Order.
In reconsidering whether HFTC30 acted to the best of its ability to comply with
Commerce’s requests for information for the direct sales channel, Commerce found that HFTC30
could have complied with Commerce’s requests for accurate, verifiable labor factors for its
suppliers in the direct sales channel. (Remand Results at 8.) Commerce explained that:
“Huaiyin30’s [referred to by the Court as HFTC30] main business is selling
crawfish tail meat, and during the period of review it dealt with a limited number
of crawfish tail meat processors, including Huaiyin Freezing. As such, Huaiyin30
was in a position to provide the Department with accurate information on its
suppliers’ factors of production, including labor. During verification, Huaiyin
Freezing stated that it maintains attendance records on a daily basis, and that it
tallies these sheets to calculate total monthly labor hours. As the data requested
by the Department was routinely maintained by Huaiyin Freezing in the normal
course of business, it was readily available and, as a consequence, would not have
been burdensome to report accurately to the Department.” (Id. at 8-9.) (citation
omitted)
Further, Commerce found that HFTC30 paid insufficient attention to its statutory duties
under the unfair trade laws. (Id. at 9.) Commerce explained that HFTC30 failed to reply
accurately to requests for factual information relevant to the administrative review. (Id. at 9.)
Commerce supported its finding that HFTC30 paid insufficient attention to its statutory duties by
1
The appendix to Commerce’s Remand Results contains the comments that Plaintiffs
submitted to the Department of Commerce in response to Commerce’s “Draft Results of
Determination Pursuant to Court Remand” (September 20, 2002). Plaintiffs’ failure to submit
comments to this Court on the Remand Results constitutes a waiver of Plaintiffs’ right to submit
comments to the Remand Results.
Court No. 01-00340 Page 4
noting that: (1) HFTC30 failed to demonstrate how it calculated its direct, indirect, or packing
labor factors of production even though HFTC30 was provided with sufficient notice that
Commerce intended to review these labor production factors; (2) HFTC30 provided wholly
inaccurate information on its direct, indirect, and packing labor factors in its questionnaire; and
(3) HFTC30 did not support its response to Commerce’s questionnaire with regard to those labor
factors at verification. (Id. at 10-12.)
Commerce also explained why the missing information is significant to the administrative
review. (Id. at 12.) In the Remand Results, Commerce stated that “such basic information as that
which is used to calculate labor factors is an integral part of the antidumping duty margin
calculation process” and the information “is solely within the control of [HFTC30].” (Id. at 12.)
Commerce concluded that a partial adverse inference was properly applied in selecting
from among facts otherwise available for the labor factor of production for HFTC30's direct sales
channel suppliers. (Id. at 17-18.) Commerce stated that the highest labor factor on the record of
this review should continue to apply to direct sales channel labor factors of HFTC30. (Id. at 18.)
CONCLUSION
This Court finds that Commerce’s Remand Results are supported by substantial evidence
on the record or otherwise in accordance with law. See 19 U.S.C. § 1516a(b)(1)(B)(i) (2000).
Therefore, Commerce’s Remand Results are affirmed in the entirety.
______________________________
Gregory W. Carman
Dated: December , 2002 Chief Judge
New York, New York