ALLIED PAC IF IC F OOD (DALIAN) C O.

LTD., ALLI ED P ACIF IC (H.K .) CO., LTD., KIN G R OYAL INVESTMENTS , LTD., ALLIED PAC IF IC AQUATIC P RODUCTS (Z HANJIANG) CO. LTD., and ALLIED P ACIF IC AQUATIC P RODUCTS (Z HONGSHAN) C O. LTD.,

Plaintiffs,

v. UNITED STAT ES,

Def endant. Slip Op. 10-83 UNITED STAT ES COURT OF INTERNATIONAL TRADE

Before: Tim othy C. Stanceu, Judge Consol. Court No. 05-00056

OP INION [Affirming de cision upon remand in whic h the United States De partment of Commerc e rede termined surr og ate va lues for r aw shrimp and la bor in an a

ntidumping investig ation] Dated: July

29, 2010 Grunfeld, Desiderio, Lebowitz, Silverman &Klestadt L LP ( Bruce M . Mitchell and Mark E. Pardo ) for

plaintiffs Allied Pacific F ood (Da lian) Co. L td., Allied Pacific (H .K.) Co., L td., King Roy al Investments, L td., Allied Pacific Aquatic Products (Z hanjiang ) Co. L td., and Allied Pacific A quatic Products (Z hong shan) Co. L td. Akin Gump Strauss Hauer &Feld LLP ( W arren E. Connelly , Lisa-Marie W . Ross , and Margaret C. Marsh ) for

plaintiff Yelin Enter

prise Co., HongKong

. Tony W est , Assistant Attorney

Gene ral, JeanneE. Davidson , Direc tor, Patricia M. McCarthy , Assistant Director , Commercial L itigation B ranc h, Civil Division, United St ates Depa rtment of Just ice ( Stephen C. Tosini ); Myk haylo A. Gryzlov , Offic e of Chief Counsel for I mport Administration, United St ates De partment of Commerc e, of c ounsel, for de fenda nt. Stanceu, Judge : This case a rose f rom plaintiffs’ c ontesting the final less-than- fair- value deter mination (“F inal Deter

mination”) and a

mended f inal less-than-f

air-va lue deter

mination (“A mended F inal Deter

mination”) that the International Trade Administration, United StatesConsol. Court No. 05-00056 P age 2

Depa rtment of Commerce (“Commerc e” or the “De partment” ), issued in an a ntidumping duty investigation on certa in frozen shrimp from the People’ s Republic of China (“ China” or the “PRC”). Allied Pacific Food ( Dalian) Co. v. United States , 32 CI T __, __, 587 F. Supp. 2d 1330, 1333-34 (2008) (“ Allied Pacific II

”). A t issue in the liti g ation are the Depa rtment’s surrog ate va lues for two inputs–ra w, hea d-on, shell-on shrimp and hour s of labor–use d in the production of the subje ct merc handise. Id. Be fore the cour t are the Fina l Results of Redeter mination Pursuant to C ourt Remand (Ma y 21, 2009) (“ Second Remand Redeter mination”), which Commerc e issued in re sponse to the cour t’s order in Allied Pacific II

, 32 CI T at __, 587 F . Supp. 2d at 1363. I n Allied Pacific II , the cour t rejec ted, for va

rious

rea sons, the Depa

rtment’s first re deter

mination upon remand. Id. at __, 587 F. Supp. 2d at 1362-63; seeFinal Results of Rede termination Pursuant to Ct. R emand ( Oct. 27, 2006) ( “F irst Remand Redete rmination”). Plaintiffs Allied Pacific F ood (Da lian) Co. L td., Allied Pacific (H .K.) Co., Ltd., King Roy al Investments, Ltd., Allied Pacific Aquatic Products (Z hanjiang ) Co. L td., and Allied Pacific Aquatic Produc ts (Z hong shan) Co. L td. (collec tively “Allied Pacif

ic”) and Ye lin Enterprise Co., HongKong(“Y elin”), a

re Chinese produce rs of subjec t shrimp that were responde nts in the antidumping duty

investigation. Allied Pacific Summons 1; Yelin S ummons 1. Both plaintiffs seek a third remand f

or re deter mination of the surrog ate va lues for r aw shrimp. Allied Pacif ic’s Comments in R esp. to the De p’t’s Second Rema nd Deter mination 3 (“Allied Pacific Comments”); Comments of Yelin Enterprise Co., HongKong(“Y elin”) on the Second Remand Deter mination of the Dep’ t of Commerce 3-4 (“ Yelin Comments”). Ne ither plaintiff c omments on the Depa

rtment’s re deter

mined labor rate. SeeAllied Pacific Comments; Yelin Comments.Consol. Court No. 05-00056 P age 3

The c ourt aff

irms the Second Remand Rede termination. Rejectingplaintiffs’ ar g uments for a third remand on the issue of surrog ate va lues for r aw shrimp, the c ourt conc ludes that Commerce’ s rede termined va lues for this input comply with the court’s or der in Allied Pacific II , 32 CI T at __, 587 F . Supp. 2d at 1363, and ar e in ac corda nce w ith law. The c ourt aff irms the Depa rtment’s re deter

mined surrog ate va lue for hour s of labor be cause no party objects to that deter mination. I. B A C K G R O U N D The ba ckg round of this ca se is prese nted in the cour t’s opinions in Allied Pacific Food ( Dalian) Co. v. United States , 30 CI T 736, 738-51, 435 F . Supp. 2d 1295, 1298-1308 (2006) (“ Allied Pacific I

”), a nd Allied Pacific II

, 32 CI T at __, 587 F . Supp. 2d at 1335-41, and is supplemented he rein to re count deve lopments occurr ing sinc e Allied Pacific II was de cided on Dec ember

22, 2008. In Allied Pacific II , the cour t rejec ted Commerce ’s re deter mined surrog ate values for the ra w shrimp input and for the la bor ra te and or dere d Commerce to r edete rmine these surr og ate va lues. Allied Pacific II , 32 CI T at __, 587 F . Supp. 2d at 1362-63. After the cour t’s decision in Allied Pacific II , Commerce invited pa

rties to submit for the

rec ord newinformation re levant to its determininga new surrog ate va lue for la

bor. Second Remand Redete rmination 14. On J anuar y 30, 2009, Allied Pacific submitted information on 2005 wag e rates in I ndia, the countr y Commerce c hose duringthe investig ation as the surr og ate country for va luing a ll factors of

production other tha

n labor. Letter from Grunfeld, Desiderio, Lebowitz, Si lverman &

Klestadt L LP to Sec’y

of Commerce

2-3 (Jan. 30, 2009) (Sec ond Remand Admin. R. Doc. No. 5) ( “ Allied Pacific Labor Rate Submission ”). A llied Pacific’s infor mation

came from a r eport produc ed by Centre f or Social Resea

rch ( “CSR”) in New D elhi, India inConsol. Court No. 05-00056 P age 4

collaboration with the United Nations Confere nce on T rade and De velopment. Id. at 2. Alre ady on the re cord w ere country -wide la bor rates published in Chapter 5B of the Ye arbook of L abour Statist ics for multiple countries issued by the Interna

tional L abour O rg anization (“I L O”)

. See Second Remand Rede termination 14. Commerce did not obtain any other infor

mation for possible use in determininga surr og ate va lue for la bor. See id. Commerce issued a

draf t remand r edete rmination on April 10, 2009. Second Remand Redeter mination 3; see Letter from U.S. Dep’ t of Commerce to Ak in, Gump, Strauss, Hauer & Feld, LLP

(Apr. 10, 2009) (Second Rema nd Admin. R. Doc. No. 6) ( providing Yelin with the draf t of the sec ond rema

nd rede termination). On Apr il 24, 2009, Allied Pacific and Y elin provided c omments on the draf t to the Depar

tment, addre ssing the r aw shrimp issue but not the labor rate issue. SeeSecond Remand Rede termination 3. In its S econd Re mand Redeter mination, submi tted to the court on May 21, 2009, Commerce c alculate d new surr og ate values for shrimp using ra

ng ed data from the I

ndian shrimp produce r De vi Seafoods, Ltd. (“D evi”) and adopte d a new surrog ate labor

rate of $0.05 per

hour. Id. at 3. Commerce deter mined revised a

ntidumping duty

marg ins of 5.07% for

Allied Pacific a

nd 8.45% for

Yelin. Id. at 37. In their comments to the cour t on the Remand Redete rmination, plaintiffs ag ain addre ss only

the issue of surr og ate va lues for shr imp. SeeAllied Pacific Comments; Yelin Comments. In response to a motion by plaintiffs, the cour

t held oral a

rgument on Dec ember

3, 2009. Orde r, Oc t. 8, 2009; Pl s.’ Partial Consent Mot. for Or al Argument Reg arding2nd Remand Redeter mination. Upon plaintiffs’ motion made at ora l arg ument, the cour

t allowed a joint posthear ing submission by

plaintiffs, which wa s filed on Dec ember 14, 2009 and a r esponse ofConsol. Court No. 05-00056 P age 5

defe ndant, filed January

6, 2010. Pls.’ Pos t-Argument Comments (“Pls. P ost-Argument Submis sion”); Def

.’s Resp. to Pls.’ Pos t Hear ing B r. (“ Def . Post-Arg ument Submis sion”). II. D I S C U S S I O N Under the applica

ble standar d of re view, the De partment’s Sec ond Remand Redeter mination must be held unlaw ful if found to be unsuppor ted by substantial evidence on the

rec ord or other

wise not in acc ordanc e with law. See19 U.S.C. § 1516a(b)(1) (B )(i) ( 2000); Consol

. Edison Co. v. NLRB , 305 U.S. 197, 229 (1938) (statingthat substantial evidence is “such rele vant evidenc e as a

rea sonable mind might a cce pt as ade quate to support a c onclusion”). A. Commerce ’s Choice of Surr og ate Va lues for Raw , Hea d-On, Shell-On Shrimp I s Affirme d Commerce use d data on the c ost of shrimp presente d in the financ ial statement of a n Indian produc er, N ekkanti Seaf oods L td. (“Ne kkanti”) to de termine surr og ate va lues for r aw shrimp, not only

in the investigation but also in t he F irst Remand Redeter mination. First Remand Redete rmination 5-7; Issues &Dec ision Mem. for the Antidumping Duty Inv estigation of Certain Frozen & Canned W armwater Shrimp from the People’ s Republic of China 12-16 (Nov. 29, 2004) ( “

Dec ision Mem. ”). In Allied Pacific II , the cour t rejec ted the De partment’s 1 finding in the First Remand Rede termination that the Ne kkanti financ ial statement data wer e the best ava ilable information on the r ecor d for va luation of the ra w shrimp input. Allied Pacific II , 32 CI T at __, 587 F . Supp. 2d at 1362.

See Notice of Am. Final Determination of Sales at Less Than Fair Value &Antidumping 1 Duty Orde r: Certain Frozen W armwater Shrimp From the People ’s Republic of China , 70 Fe d. Reg . 5149 (F eb. 1, 2005) ( “ Am. Final Determ ination & Order ”); Notice of Final Determination of Sales at Less T

han Fair Value: Certain Frozen &Canned W armwater Shrimp From the People’ s Republic of China , 69 Fe d. Reg . 70,997 (De c. 8, 2004) ( “Final Determination ”).Consol. Court No. 05-00056 P age 6

In the Second Rema

nd Redeter

mination, Com merc e conside red f our alter native sets of data that we re on the rec ord of the inve stigation: data from the Sea food Exporters Association of India (“ SEAI ”), data from the A quaculture Certification Council (“ACC”), and r ang ed, public versions of se ts of data submitted by two responde nts in the parallel a ntidumping investig ation of shrimp from India, Devi a nd Nekka nti. Second Remand Redete rmination 4. Commerce reiter ated in the Sec ond Remand Redete rmination its five criter ia for judg ing sur rog ate data, stating that it “prefe rs to use surrog ate va lues that are publicly available , broad ma

rket avera g es, contempora

neous with the POI[ i.e. , period of inve stigation] , specific to the input in question, and exclusive of taxes and exports.” Id. at 7 (c itation omit ted). F rom amongthe four data sets, Commerce de termined that the D evi ra ng ed data wer e the be st available infor mation on the

rec ord. Id. at 6-7. Commerc e conc luded that the De vi rang ed data wer e super ior to the SEAI data be cause , amongother re asons, the De vi rang ed data wer e more specific to the input, id. at 8-12; that the ACC data “ suffe red f rom fundame ntal problems that ca lled into question the repr esentativeness and r eliability of its prices” ; and, bec ause of issues pertainingto rang ing, “ that the Nekka

nti rang ed data

wer e potentially

less acc urate than the De vi rang ed data .” Id. at 6. The court c oncludes that substantial re cord e vidence supports all of these f indings by

the Depa rtment. Commerce f

ound in the First Remand Rede termination that the ACC’s posting of price s

was a one-time e vent and that the A CC was not org anized for the pur pose of, nor

eng ag ed in the prac tice of, postingsuch price s. First Remand Rede termination 29-31. On the que stion of the Depa rtment’s re

jection of the A CC data, the cour t previously

held that “[s] ubstantial rec ord evidenc e supports the finding s that the ACC price data wer e not re g ularly posted in that posting of such pr ices wa s not a routine ACC function.” Allied Pacific II , 32 CI T at __, 587 F . Supp. 2dConsol. Court No. 05-00056 P age 7

at 1350. In the Fir st Remand Redeter mination, the Depar

tment relied on these finding s in concludingthat the ACC data we re not suff iciently insulated from c onflict of intere st. See id. (“O n rema

nd, Commerce a g ain identified insulation from conf lict of interest a s a re ason for reje cting the ACC data, findingthat some of the ACC member s were responde nts in the parallel Indian investig ation and that the ACC price s were posted only afte r publication of the Preliminary

Deter mination on J une 16, 2004.”) . These f indings, whic h are restate d in the Second Remand Redete rmination, support the Depa rtment’s dec ision to consider the ACC data insufficiently

reliable for use in determininga surr og ate va lue for r aw shrimp. SeeSecond Remand Redete rmination 12-13. As the c ourt stated in Allied Pacific II , “[i] t is withi n the Depa rtment’s discre tion to give we ight to these two finding s in its evaluation of the var ious data sets.” Allied Pacific II

, 32 CI T at __, 587 F . Supp. 2d at 1350; seeSecond Remand Redeter mination 12-13. Commerce’ s decision to reje ct the ACC data on g rounds of insuffic ient reliability is based on finding s supported by substantial rec ord evide nce a nd on adequate

rea soning. In support of its selection of the D evi ra ng ed data over the Nekka

nti rang ed data , the Depa rtment cited the c ourt’s conc lusion in Allied Pacific II that the Nekka

nti rang ed data , “‘unlike [the] Devi rang ed data , do not include a unit price for e ach c ount siz e and a re pr esente d in a format indicating that the count sizes are r ang ed.’” Second Remand Rede termination 4 n.1 (quoting Allied Pacific II , 32 CI T at __, 587 F . Supp. 2d at 1349). The c ourt conc ludes that Commerce, in the Sec ond Remand Redete rmination, relied on f indings supporte d by

substantial

rec ord evide nce in c oncluding that the Devi r ang ed data are superior to the N ekkanti ra ng ed data

.Consol. Court No. 05-00056 P age 8

In choosingthe Devi r ang ed data over the SEAIdata, the D epar tment placed substantial weig ht on its “specificity” fa ctor, e mphasizi ng the importance of data that may be cor rela ted satisfac torily

to the count sizes reported by Allied Pacific a

nd Yelin. SeeSecond Remand Redeter mination 8-9, 22-23, 32. Commerce conclude d, and the r ecor d amply supports, that “[t] he value of shrimp is highly depende nt on the count-size (the lar g er shr imp is worth signific antly

more in the mar

ketplace ).” Id. at 8. Noting that the Devi r ang ed data list per-unit price s for individual sizes and that the SEAIdata pr ovide information only for c ount siz es ending in zero, e.g. , 20, 30, 40 piece s to the kilogra m, etc., Commerce conclude d that it could corre late the Devi r ang ed data

more re adily

to the count sizes reported by Allied Pacific a

nd Yelin. Id. at 8, 11. Commerce found, spec ifically , that the ra ng ed De vi data cor

responde d to all of the count sizes reported by

Allied Pacific a

nd 30 of the 33 c ount siz es re ported by Yelin. Id. at 23. Commerce r easone d that “the De vi rang ed data are the only

source that provides sing le data points for the bottom and top rang es of e ach c ount siz e[,] making the ca lculation of the surr og ate value more acc urate .” Id. at 8. The Sec ond Remand Redete rmination provides as a n example an Allied Pacific c ount siz e of “ 43/47” for which “the r aw shrimp input had a lowe r ra ng e of 43 a

nd an upper rang e of 47,” addingthat “[t] he De vi data list per-unit price s for individual sizes such as 43, 44, 45, 46, and 47.” Id. Commerce e x plained that “in c alculatingthe surrog ate va lue for Allied’s 43/47 count size, the Depa rtment nee d only

include pric es for

specific count-sizes betwee n 43-47” a

nd that “[t] he same methodology applies for

Yelin’s count sizes.” Id. Commerce vie wed the SEAI data less f

avora bly not only beca use the SEAI

data a re pr esente d in count sizes rounded to tens, but also bec ause the SEAIdata list count sizes only up to 100 per kilogr am. Id. at 23. Commerce considere d the latter limitation significa nt beca use “Y elin andConsol. Court No. 05-00056 P age 9

Allied both reporte d count sizes well bey ond count sizes of 100 piece s per kilog ram.” Id. “F or Yelin, for e x ample, this would mean that for a total of 13 of its 33 count sizes, or 39% of c ount siz es, there would be no matchingcount size from SEAI .” Id. The c ourt aff

irms, as supported by

substantial rec ord evide nce, Commerc e’s f inding that the Devi r ang ed data

aff ord a more acc urate corr elation to the count sizes reporte d by Allied Pacific a nd Yelin than the SEAI

data a nd thus are supe rior to the SEAI data in that re spect. Although Commerc e’s usingthe Devi r ang ed data nece ssarily

require d some estimation, the SEAIdata r equire substantially more e stimating bec ause the y are less reve alingwith respec t to count size and requir e extrapolation due to the lac k of any information on count sizes exceeding 100. The re cord e vidence supports Commerce’ s g ener al conc lusion that the SEAIdata have signific ant shortcoming s with respec t to count siz e. It was per missibl e for

Commerce to conclude , based on the rec ord evide nce, that these shortcoming s would compromise the ove rall

acc urac y of the surr og ate va lues deter mined for the spe cific c ount siz es re ported by Allied Pacific and Ye lin and that these shortc omings a re la rg ely avoided by

use of the D evi ra

ng ed data

. Be cause the count size of shrimp is unquestionably an important consider ation, Commerce r easona

bly place d more we ight on its specif icity criter ion than on its four other criter ia. Wit h respe ct to its “public availability ” cr iterion, Commerce stated a f inding that the 2

Commerce a lso indicated that Allied Pacific and Ye lin reported usingmostly white 2 shrimp and that the De vi rang ed data it used pertaine d to that species, while the SEAIdata may have pe rtained to blac k tige r shrimp. Fina l Results of Redetermination Pursuant to Ct. Remand 9, 21 (Ma

y 21, 2009) (“ Second Remand Rede termination”). T he cour t does not find persua sive the De partment’s r easoning on the issue of the spe cies of the shrimp. Comm erc e asser ts that the value of shr imp depends on the spec ies and that “ [t ]hi s is significa nt beca use the shrimp siz e is deter

mined by the spec ies, and shrimp size impacts the number of shrimp sold per kilogr am.” Id. at 9. B eca use the De partment did not state a f inding that the spe cies of shr imp

(continued...)Consol. Court No. 05-00056 P age 10

SEAIdata we re not publicly available and that the De vi rang ed data , in contrast, we re ma de available to the public in the companion Indian antidumping pr ocee ding. Sec ond Remand Redeter mination 9-10. The re cord suppor ts the finding that the Devi ra ng ed data wer e made publicly available , and ther e is some re cord e vidence to support a finding that the SEAIdata a re not broadly

available to the public. The re cord indicates, for e x ample, that Commerce was unable to obtain copie s of the SEAI circ ulars dire ctly

from SEAI

. SeeSecond Remand Redeter mination 21, 25 (citing Mem . from Program Manager, OfficeIX, to The File 2 (June 28, 2004) (Admin. R. Doc. N o. 510)); Allied Pacific I , 30 CI T at 747, 759-60, 435 F . Supp. 2d at 1305, 1315-16. Ne verthe less, the re cord a lso establishes that the plaintiffs, at a time prior to the Depa rtment’s inquiries to SEAI , wer e able to obtain the circ ulars fr om SEAI

. See A llied Pacific I , 30 CI T at 744-45, 435 F . Supp. 2d 1303. I n any event, the c ourt sees no ne ed to re ach the question of whe ther substantial evide nce suppor ted a f inding that the SEAI

data a re not publicly available or less publicly available than the De vi rang ed data . Even if the two da ta

source s were considere d equally available to the public, the Depa rtment would be justified in g iving more weight to the deficie ncies it identified with re spect to count size as pre sented in the SEAIcirc ulars than to the issue of whether the SEAIdata a

re publicly

available . Commerce itself conclude d that even ha d it been able to obtain directly from SEAI

the documents it had soug ht, it st ill would choose the De vi rang ed data over the SEAIdata on g rounds of a ccur acy . Second Remand Rede termination 22.

(...continued) 2 has a sig nificant e ffe ct on price that would not be ac counted f or byits selection of count-sizespecific surrog ate va lues, the De partment ha s not ex plained ade quately why it accor ded signific ance to the question of the spec ies repor ted in the SEAIdata.Consol. Court No. 05-00056 P age 11

In applying its “br oad mar ket ave rag e” c riterion, the De partment a cknowledg ed that the rang ed De vi data per

tained only

to a sing le purc haser , unlike the SEAIand ACC data. Id. at 10. As a c ounterva iling conside ration, Commerce did not find the SEAIdata to be suf ficiently complete, obse rvingthat the SEAI data “ lack a

ny information re g ardingthe volume, value a nd per- unit price of tr ansac tions considered in de terminingaver ag e pric es” a nd that “the data could potentially

be base d upon a handf

ul of transa ctions.” Id. Commerce c ited rec ord information showing that Devi purc hased a total of 255,068.5 kilogr ams of ra w white shrimp at a va lue of 38,974,776 Indian rupe es, which Commerc e conside red to be a suff iciently broad a vera g e whe n viewed a g ainst the SEAIdata, with which Commerc e found sig nificant shortc omings. Sec ond Remand Redete rmination 11. In discussing its contempor aneity criter ion, Comm erc e noted that the D evi ra ng ed data perta ined to the per iod October 1, 2002 to September 30, 2003, whic h encompa ssed all of the period of inve stigation April 1, 2003 to S eptember 30, 2003. Id. at 11. With respect to exclusivi ty

from taxes, Commerce f

ound, based on da

ta submitted by

Devi in the Indian investigation, that the prices in the r ang ed De vi rang ed data included a 0.5% tax and, in response, adjusted the pric es downwa rd by 0.5%. Id . at 31.

3 Upon consider ing the Depa rtment’s ana ly sis of the four data sets in its entirety , the cour t conclude s that Commerce ba sed its choice of the Devi r ang ed data

on adequa

te finding s, which

wer e supported by

substantial rec ord evide nce. Plaintiffs ra ise various a rguments in support of the contra ry position, m aintainingthat Commerce e rre d in not selectinginstead the SEAI data or

Commerce e x plained that it could adjust the SEAI price s for Andhr a Prade sh by the 3 0.5% rate set for

th by Devi as the tax rate for that reg ion but could not adjust the prices for Tamil Nadu a s it did not have the tax rate for the reg ion. Second Remand Rede termination 31.Consol. Court No. 05-00056 P age 12

some combination of the SEAI and De vi rang ed data . Allied Pacific Comments 4-24; Yelin Comments 18-26. Both make the g ener al ar gument that substantial rec ord evide nce doe s not support Commerce’ s findings that the Devi ra ng ed data are the best ava ilable information on the g rounds of spec ificity , public availability , repr esentativeness of a broad ma rket avera g e, contempora

neity , tax ex clusiveness, a nd reliability . Allied Pacific Comments 4-24; Yelin Comments 4-26. Howeve r, plaintiffs’ c omment submiss ions fail to make the c ase tha t the choice of the De vi rang ed data

exceede d the discre tion that Congre ss gr anted to Commerce for the choice of “the best ava ilable information” r eg ardingthe ra w shrimp fac tor of produc tion. See 19 U.S.C. § 1677b(c)(1) (2000). The rec ord supports the finding s essential to Commerce ’s choice of the De vi rang ed data , in particular , Commerce’ s findings that the SEAI data suff er in compar ison to the Devi rang ed data with respec t to count siz e as w ell as the pre sence of background information on volumes and per- unit prices fr om which Commerce could asc erta in how the data

wer e der ived. Commerce justifiably place d considera

ble weig ht on those findings, which dire ctly

perta in to the acc urac y

and re liability

of the re sulting surrog ate va lues. Commerce

rea sonably

place d more importanc e on its fac tor of spec ificity to the input than on its ot her fac tors. Both plaintiffs objec t that the per- unit prices in the De vi rang ed data wer e ra ng ed in such

a wa y that the price s Devi re ported e x cee ded the 10% deviation from a ctual value s that is allowed by

the Depa rtment’s re g ulations and may have de viated by

as much a s 34% from the actua l prices. Allied Pac ific Comments 4-8; Yelin Comments 4-17. Pl aintiffs base their objection on a pattern discer nible in the Devi ra

ng ed data . Allied Pacific Comments 6; Yelin Comments 10. Describingthis pattern in post-oral-a rgument briefing , they

state that “theConsol. Court No. 05-00056 P age 13

repor ted ra ng ed per unit price . . . is either

exactly equal to 110% of

the re sult determined by dividing the r ang ed total quantity . . . into the rang ed total value . . . ( or else va ries by no more than an a dditional 1 perce ntag e point).” Pls. Post-Arg ument Submis sion 3. Accor ding to plaintiffs, “it is mathematically irref utable that De vi’s repor

ted ra ng ed per unit price, in 168 out of 177 re ported instance s, equale d rang ed total quantity divided into rang ed total value multiplied by 110%.” Id. Plaintiffs conclude f rom this pattern that “substantial e vidence does not support the Commerce Depa

rtment’s cla im that Devi applied the De partment’s r ang ing r egulation in 19 C.F.R. § 351.304(c) (1) in a ma nner that did not dis tort its publi cly repor ted, ra ng ed per unit price s by more than 10 pe rce nt from the ac tual per unit price s that Devi paid.” Id. at 1. Plaintiffs add that “[t]he factua l finding that a see mingly random ra

ng ing of +/- 10% f

rom the ac tual per unit price would virtually alway s result in the exact same pe r unit price a s using a triple rang ing methodology

defie s logic and common sense .” Id. at 4. Plaintiffs posit that rang ing of quantity and ra ng ing of value, f ollowed by

rang ing of

the quotient by

10%, could produc e per -unit prices that vary from the a ctual per -unit prices by as much a s 34%. Allied Pacific Comments 5; Yelin Comments 9-10. Yelin g ives as a hy pothetical example a r ang ed purc hased qua ntity of 91.7 kilogr ams for which the ac tual quantity could have been 102 kilog rams, a va lue of 29,816 Indian rupee s that could have been 27,105 I ndian rupe es prior to ra

ng ing, a nd a quotient that was r ang ed upwar d by

10%, re sulting in a pe r-unit price 358 Indian rupe es/kilogr am, which is 34% hig her than what c ould have be en the a ctual per -unit price of 266 Indian rupe es/kilogr am. Yelin Comments 9-10. Under § 351.304(c) (1) of

the Depa rtment’s re g ulations, Devi was r equire d to submit “a summary of the bra ckete d [ i.e. , business proprieta ry ] i nformation in suffic ient detail to permit aConsol. Court No. 05-00056 P age 14

rea sonable unde rstandingof the substanc e of the information.” 19 C.F .R. § 351.304(c)( 1) (2004). The reg

ulation provides that “[g ]enerally , numerica l data will be conside red a dequate ly summarized if g rouped or prese nted in terms of indice s or figures within 10 per cent of the ac tual fig ure.” Id. The unde rlying pr emise of plaintiffs’ argument is that Devi failed to e nsure that its rang ed, per -unit values we re w ithin 10% of the ac tual per- unit figur es. Commerce did not so find, and instead, on the basis of § 351.304(c )(1) and on the a bsence of any

rec ord evide nce “ that the Depa rtment found any

err ors with respe ct to Devi’s r ang ed data in the companion Indian investigation,” Second Remand Rede termination 32 n.7, Commerce conclude d that “in the wor st

case ‘doomsday ’ sce nario, a ny rang ed per -unit number could diff er f rom the business proprie tary number by

no more than 10% .” Id. at 32. Commerce rea ched that conclusion “[a]part from our initial concer

ns about the ra

ng ing of the data in the Final Determination and [the First Remand Redeter mination] , which the Court re jected.” Id. at 7. In Allied Pacific II , the cour t rejec ted Commerce’ s finding in the F irst Remand Redeter mination that the prices in the r ang ed De vi data may deviate f rom the ac tual data by

much more tha

n 10%. Allied Pacific II

, 32 CI T at __, 587 F

. Supp. 2d at 1348-49. Consistent with t he cour t’s conclusion in Allied Pacific II , Commerce now conclude s that the per- unit prices in the ra ng ed De vi data do not diffe r fr om the actua l numbers by more than 10% . Second Remand Rede termination 32. Plaintiffs argue that Commerce

rea ched this conc lusion without relying on a ctual re cord e vidence , rely ing instea d solely

on the exis tence of the re g ulation. Pls . Post-Arg ument Submis sion 3. I n this they are not entirely

corr ect. The cover

letter to the De vi rang ed data is itself recor d evidenc e on the issue of whether Devi per formed pr oper r ang ing of the per -unit values, statingthat “[p] ursuant to 19 C.F.R.Consol. Court No. 05-00056 P age 15

§ 351.304(c) [,] we note tha t all business proprietar

y information containe d in the business proprieta ry version of the response has bee n deleted or rang ed +/- 10 perc ent in this publi c version of the response .” Letter from Grunfeld, Desiderio, Lebowitz, Sil verm an & Klestadt L LP to Sec’ y of Commerc e 1117 (Sept. 8, 2004) (A dmin. R. Doc. No. 709) (“ Second Surrogate V alue Submission ”) ( providing a copy of De vi’s response to the Depa rtment’s supplemental Sec tion D questionnaire) . Plaintiffs’ arg ument is corre ct only

to the extent that the recor d does not contain evidenc e conc lusively

establishing that Devi’s ra ng ed per -unit values did not exceed the a ctual values by more than 10% . But c ontrary to plaintiffs’ ar g ument, neither doe s the rec ord establish that Devi fa iled to comply with the 10% maxim um standard f or ra ng ing that § 351.304(c)( 1) imposes on numerica l data. Plaintiffs also are corr ect that the D evi ra ng ed data used by the Depa rtment to calc ulate the surrog ate va lues for r aw shrimp exhibited, with very fewexceptions, the 110% patter n. But the mere fac t that in almost all i nstance s Devi pre sented pe r-unit values f or its purcha ses of ra

w, head- on white shrimp that wer e an inc rea se of ten pe rce nt over the quotient of the repor ted rang ed quantity

and value fig ures is not substantial evidenc e that the pe r-unit values f ailed to confor m to the rang ing sta

ndard. B y

any of a c ountless number of r ang ing me thods, Devi could have e nsured that the r ang ing it per formed on the quantity and value elements re sulted in per-unit quotients that achieve d per- unit values within 10% of the a ctual fig ures. As a

n extreme example, Devi could have ra

ng ed both the value and quantity , either upw ard or downwar d, by

the same perc entag e bef

ore r aising the per -unit (Indian rupe es/kilogr am) quotient by 10%, thus bare ly achie ving c ompliance with the 10% rang ing r equire ment. Alternatively , Devi could have

ensure d that the ra

ng ing of the value a

nd the quantity

resulted in a pe r-unit quotient that was lessConsol. Court No. 05-00056 P age 16

than the ac tual per- unit quotient, such that increa sing the quotient by 10% would alwa

y s achie ve compliance with a marg in to spare. Be cause the re cord la cks evide nce e stablishing that De vi failed to comply with the regulatory

require ment on rang ing f ound in 19 C.F.R. § 351.304(c)( 1), Commerce cer tainly was not required

to rea ch the f

inding of noncompliance that plaintiffs advoc ate. More over, on the state of the r ecor d, which included D evi’s ce rtification of c ompliance with the r ang ing require ment, it was permissible for Commerc e to re ly on a pre sumption t hat Devi’ s submissi on of data in the para llel I ndian investig ation complied with that require ment. Commerce quite

rea sonably

could expect that Devi, like a ny party to an antidumping inve stigation, would have endea vored to c omply

with the rang ing sta

ndard a nd would have ha d ever

y incentive to do so. As would any

such par ty , Devi would have risked adve rse c onsequenc es in the par allel I ndian investigation were its rang ing to be impermissible–a fac t that the business confidential ve rsion of the data, which nec essar ily would have be en on the r ecor d in that investigation, readily would have r evea led to Commerce in that other proce eding . On this recor d, which conta ins only the public version of the Devi data , the cour t must reject plaintiffs’ c omment objecting to the Depa rtment’s use of

the Devi da

ta on g rounds of a lleg ed improper rang ing. Plaintiffs argue in the alter native that eve n if Devi’s pe r-unit values did not excee d the actua l values by

more than 10% , that deg ree of inac cura cy is unacc eptable a

nd should not rece ive defe renc e bec ause Commerc e, in a de termination in another pr ocee ding, uphe ld by the Court of International Trade , declined to use rang ed data as fa cts otherwise available beca use of unreliability

due to the ra

ng ing. Pls. Post-Argument Submis sion 8-9 (citing Allegheny Ludlum Corp. v. United States , 27 CI T 1461, 1467-68 (2003) ). This argument is unpersuasive.Consol. Court No. 05-00056 P age 17

Commerce’ s decision to use the De vi rang ed data must be review ed on the r ecor d of this remand proce eding , in which Commerce was re quired to compa re the Devi ra

ng ed data with SEAIdata. Neither set of data

is ideal, but Commerce’ s findings pe rtaining to the inadequa cies of the SEAI data whe n compar ed with the De vi rang ed data are supported by

substantial rec ord evide nce a nd must be upheld by

the cour t. Comm erc e’s r easons f

or re jectingrang ed data

in another proce eding , in a diffe rent c ontext , do not support an ar g ument that Commerce w as not permitted to use rang ed data

here

. Yelin takes issue w ith the Depar tment’s conclusion that the De vi rang ed data are superior to the Nekka

nti rang ed data , arg

uing tha t the court should re mand the dec ision “with an instruction that the Depa

rtment disreg ard both the N ekkanti ra ng ed data and the De vi rang ed data beca use it has fa iled to provide a r easone d explanation as to why Nekka nti’s rang ing pr ocess results in a g reater de viation from its actual pric es than doe s Devi’s ra ng ing pr ocess.” Yelin Comments 17. Accordingto Yelin, the Depa rtment nee d only

have c alculate d a per -unit price from Ne kkanti’s ra

ng ed pric es and qua

ntities to bring the Ne kkanti rang ed data “to the exact same point and e x act same extent of deviation as De vi’s rang ed data befor e De vi added the third rang ing ste p to the product of dividingits rang ed quantity into its rang ed total amount paid.” Id. at 16. The c ourt finds no merit in this argument. First, as Y elin itself acknow ledg es, Ne kkanti rang ed its count sizes while Devi did not. See id. Second, Ne kkanti did not provide rang ed per

unit prices. Id. Had the D epar tment simpl y

calc ulated per -unit prices f rom Nekka

nti’s rang ed price s and quantities, as Ye lin sugg ests it could have done , the quotients could not be pre sumed to be the equiva lent, with respec t to accur acy , of the pe r-unit price s in the Devi ra ng ed per -unit data, whic h the Depa

rtment permissibly

found to be within ten per cent of the ac tual fig ures.Consol. Court No. 05-00056 P age 18

Allied Pacific a

rgues that a data set re flec ting shrimp pric es at diff ere nt count siz es should show a consistent patter n of hig her pr ices for

lower c ount siz es ( i.e. , larg er shr imp) and highlig hts certa in instances in which the D evi ra ng ed data deviate f rom that pattern. A llied Pacific Comments 7-8, Attac h. 2. The United States, in its response, states that Allied Pacific failed to e x haust its administ rative r emedies w ith respec t to this claim and then, none theless, explains t hat many

fac tors could have aff

ecte d the price , including, e.g. , purcha ses made f rom differ ent source s and throug h differ ent commer cial ar rang ements. De f.’s Resp. to Pls.’ Remand Comments 24-25 (“De f. Resp.”) . Neither Allied Pacific nor

Yelin appe ar to have ra ised this issue in their comments bef ore Commerc e. See Letter from Grunfeld, Desiderio, Lebowitz, Silverman &Klestadt L LP to Sec’y of Commerce(Apr. 24, 2009) (Second Rema nd Admin. R. Doc. No. 11) (“

Allied Pacific Comments on Draft ”); Letter from Akin Gump Strauss Hauer & Feld LLP to Sec’y

of Commerce(Apr. 24, 2009) (Second Rema nd Admin. R. Doc. No. 12) (“ Y elin Comments on Draft ”). Conseque ntly , Commerce did not have the opportunity to respond to the argument in its S econd Re mand Redete rmination. Be cause Allied Pacific ha d the opportunity to raise, in comments to Commerce on the Second Remand Rede termination, its argument conce rning anomalous pricingfor c ount siz es but did not do so, the court does not have the bene fit of a r esponse to that ar g ument in the Second Remand Redete rmination. The question of e x haustion aside, the c ourt is not convinced by the argument. Although c ount siz e unquestionably is important to the value of shrimp, the c ourt lacks a basis on this recor d to conclude that Comm erc e wa s require d to rejec t as invalid or unreliable a set of da

ta in which, in some instance s, highe r per -kilog ram c ount siz es ar e value d at amounts above those f

or ce rtain lower

count sizes.Consol. Court No. 05-00056 P age 19

Plaintiffs also challeng e the De partment’s f inding in the Sec ond Remand Redeter mination that the Devi ra

ng ed data repr esent a

broad ma rket avera g e, empha siz ing that the SEAIdata r epre sent price s for two re g ions while the Devi ra ng ed data repr esent pric es for

a single company

in a sing le re g ion. Allied Pacific Comments 16-19; Yelin Comments 22-23. Acc ordingto Allied Pacific, the D epar tment’s citing of

the lack of

information as to the volume of transa ctions repr esente d by the SEAIcirc ulars re lies on conjec ture a nd is not a sound basis upon which to conc lude that the De vi rang ed data are superior. A llied Pacific Comments 16-17. Commerce e x plained that in consider ing which data r epre sent best a br oad mar ket

aver ag e, “the ultimate goa l is to find the most repr esentative and re liable surrog ate va lue source ” and that the a

naly sis is not limit ed to “pur ely g eog raphic al consider ations.” Second Rema nd Redeter mination 27. Further , Commerce e mphasized that it was unable to deter mine how SEAI price s were aver ag ed, how many transac tions the prices e ncompassed, or whether the data w ere subject to any

scrutiny or re view. Id. Comparing the SEAIdata with De vi’s rang ed data , Commerce c oncluded that be cause Devi re ported the total volume a nd value, Commerc e could conclude with a deg ree of conf idence that the data w ere repr esentative. Id. at 27-28. The rec ord evidenc e is sufficie nt to support Com merc e’s f indings that the SEAI

price s, when c ompare d to the Devi r ang ed data , lack supportingdata on total value and volume and ha ve def iciencie s with respe ct to count size. Those finding s justify as re asonable the Depa

rtment’s choic e of the Devi rang ed data

over the SEAIdata, e ven thoug h the SEAIdata would a ppear to be a br oader

marke t

aver ag e with re spect to g eog raphy and number s of produc ers in India. Wit h respe ct to the contempor aneity criter ion, Allied Pacific objec ts that the Devi ra ng ed data a re ove rly inclusive bec ause the y

cover the six months prior to the period of inve stigation asConsol. Court No. 05-00056 P age 20

well as the pe riod of investig ation. Allied Pacific Comments 20; seeYelin Comments 23-24. Allied Pacific f

urther a rgues that it is unclear

whether Devi made purcha ses of white shr imp within the period of investig ation and that ther e is a 50% c hance that the white shrimp purc hases

occur red outside of

the per iod of investigation. Allied Pacific Comments 20. Allied Pacific maintains that the SEAIdata a re pe rfe ctly

contempora

neous with the per iod of investiga tion. Id. Wit h reg ard to c ontemporane ity , Commerce f ound that the Devi r ang ed data are contempora

neous with the per iod of investigation as the data c over the period Oc tober 1, 2002 throug h September 30, 2003 a nd the per iod of investigation is April 1, 2003 through September 30, 2003. Sec ond Remand Redete rmination 11. Yelin notes that Commerce does not addre ss the contempora

neity of the SEAI

data. SeeYelin Comments 23-24. Plaintiffs are c orre ct that the De vi rang ed data are over- inclusive, as these data c over a period pre ceding

the per iod of investiga

tion as well as the pe riod of investig ation itself. Although not perfec tlycontempora neous, the De vi rang ed data overla pped the e ntire per iod of investigation. The rec ord also re veals that the SEAI data a re inc omplete due to missing c ircular s, and as a result some of the SEAI

data do not cove r the e ntire per iod of investiga tion. See Letter from Grunfeld, Desiderio, Lebowitz, Silverman &Klestadt L LP to Sec’y of Commerce7-8, 21-28 (May 21, 2004) (Admin. R. Doc. N o. 267) (“ First Surrogat e Value Subm ission ”). O n the re cord considere d as a whole, the cour t cannot conc lude that Commerce exceede d its discretion in choosingthe Devi r ang ed data even thoug h those data pe rtained to a period e x tending to a time prior to the per iod of investiga tion. Finally , Yelin comments that Commerce , althoug h citing ve rification of Devi’s data in the companion Indian investig ation as a r eason f or conc luding that the D evi data a re r eliable, didConsol. Court No. 05-00056 P age 21

not actually

verify the Devi data in rang ed for m; as a re sult, accor ding to Ye lin, “[t ]hi s verific ation has no re levanc e to the ac cura cy or re liability

of the ra ng ed data , which could va ry by as much a s 34 perc ent from the a ctual pric es.” Y elin Comments 25. This arg ument fails bec ause its premise is that the Devi ra ng ed data did not comply

with the Depa

rtments’ ra

ng ing sta ndard, a premise that is unsound for the rea sons the court pre viously discussed. In summary , Commerce’ s choice of the De vi rang ed data is based on ade quate f

indings supported by

substantial rec ord evide nce a nd is within t he De partment’s discr etion aff orded by 19 U.S.C. § 1677b(c). Commerc e per missibl y conclude d that the ACC data lac k critica l indicia of re liability

and that the SEAI

data a re infe rior to the De vi rang ed data in material re spects important to the valuation of the spe cific r aw shrimp input, most particularly count size and completene ss. The cour

t must affirm the De partment’s c hoice. B. Commerc e’s Rede termination of the Surrog ate Va lue for L abor I s Affirme d In response to the court’s or der in Allied Pacific II , 32 CI T at __, 587 F . Supp. 2d at 1363, Commerce r edete rmined a sur rog ate va lue of $0.05 pe r hour f or labor. Sec ond Remand Redeter mination 3. Com merc e base d its determination to apply this labor rate on its finding that the data suppor

ting the r ate we re spe cific to the Indian sea food industry , unlike the other da ta set on the re cord, which Commerce found to perta in to labor rate s acr oss the various industries in India. Id. at 13-17. Substantial rec ord evide nce suppor ts the Depa

rtment’s finding s. Neither of the plaintiffs c ommented on the re deter mination of the surrog ate va lue for labor be fore Commerce or in the submissi ons subsequently made to the c ourt. See id. at 37; Allied Pacific Comments; Yelin Comments. Under these circ umstances, the c ourt rea sonably may infer that the parties c oncur in the Sec ond Remand Redete rmination. See W uhan BeeConsol. Court No. 05-00056 P age 22

Healthy Co. v. U

nited States , 32 CI T __, __, Slip Op. 08-61, at 12 (May 29, 2008) (“ Under

such circ umstances, Commerc e ‘ma y well be e ntitled to assume that the silent party has dec ided, on ref lection, that it concur s in the ag ency ’s [remand re sults] ,’ and the court will uphold the parties’

concur renc e.” ( quoting AL Tech Spec ialty Steel Corp. v. United States , 29 CI T 276, 285, 366 F. Supp. 2d 1236, 1245 (2005))). In the Second Rema

nd Redeter

mination, Com merc e stated its disag ree ment with the court’s holdingthat 19 C.F.R. § 351.408(c) (3) violates 19 U .S.C. § 1677b(c) but nonethele ss rede termined the la

bor rate “without re g ard to 19 C.F.R. § 351.408(c )(3) ,” as r equire d by Allied Pacific II , 32 CI T at __, 587 F . Supp. 2d at 1363. Second Remand Rede termination 13 & n.2, 16. Since the submission of the Second Remand Rede termination, the Court of Appe als for the Fe dera l Circuit has resolved the issue raised by the Depa rtment’s objec tion by

holding that 19 C.F.R. § 351.408(c) (3) violates 19 U .S.C. § 1677b(c) insofar as it “improper ly

require s using data f rom both economica lly

compar able a

nd economica lly

dissimi lar c ountries, and it improperly

uses data f

rom both countries that produc e compa rable merc handise a

nd countries that do not.” Dorbest Ltd. v. United States , 604 F.3d 1363, 1372 ( Fe d. Cir. 2010). III. C O N C L U S I O N The De partment’s r edete rmined surrog ate va lue for the rawshrimp input complies with the cour t’s rema nd order and is in acc ordanc e with law. The Depa rtment’s re deter

mined surrog ate va lue for la

bor is aff irmed bec ause no pa

rty objects to that deter

mination. The court will enter judg ment acc ording ly

. /s/ Timot hy C. St ance u Timothy C. St ance u J udg e Dated: J uly

29, 2010 New Y ork, Ne w York