Slip Op. 02 -140 UNITED STATES COURT OF INTERNATIONAL TRADE BEFORE: GREGO RY W. CARMAN, CH IEF JUDGE
PACIFIC GIANT, INC., et al. , Plaintiffs,

v. UNITED STATES OF AMERICA, Defendant, and CRAWFISH PROCESSORS ALLIANCE, et al. , DefendantInterve nors. Court No. 01-00340

[The Department of Commerce’s Final Results of Determination Pursuant to Court Remand are affirmed.] Dated: December 2, 2002 Garvey , Schube rt &Barer (

John C. Kali tka, W

illiam E. Pe

rry ), Washington, D.C., for Plaintiff s. Robert D. McCallum, Jr ., Assista nt Attorne

y G eneral ; David M. Cohen , Director, Commerci al Lit

igation Branch, Civil Divi sion, Unite d States De partmen t of Justice ; Mark L. Josephs , Senior Trial Counsel, Commercial Litigation Br anch, Civil Division, United States Department of Justic e; Arthur D. Sidney , Attorney, Off ice of the Chief Counsel for Import Administra

tion, of Cou

nsel, for Defend ant. Adduci, Mastriani & Schaum berg, L.L.P. ( Will E. Leonard, Mark Leventhal , John C. Steinberger), Washing

ton, D.C., for Def

endant- Inte

rvenors .Court No. 01-00340 Page 2

O PINI ON C ARMAN , C HIEF J UDGE : This Court reviews the United States Department of Commerce’s (“Commerce”) Final Results of De termination Pursuant to Court Remand (October 15, 2002) (“

Remand R esults ”). The Remand R esults were issued in response to the Court’s Order o f Augus t 6, 2002. T he rema nd direc ted Commer

ce to fur ther expla in its deci sion to app ly adverse facts available to the labor produc tion factors of Huaiy

in Foreign Trade Corporation No. 30 (“HFTC30”) for direct sales cha nnel, as determined in Freshwater Crawfish Tail Meat From the People’s Republic of China: Notice of Final Results of Antidumping Duty Administrative Review a nd New Shipp er Revie ws , and Final P

artial Res cission of A ntidumping Duty Administrative Review , 66 Fed. Reg. 20,634 (Apr. 24, 2001), amended by Fresh water Crawfi

sh Tail Meat From the People’s Republic of China: Amended Final Results of Administrative Review a nd New Shipp er Revie ws , 66 Fed. Reg. 30,409 (June 6, 2001). Pacific Giant, Inc. v. United States , No. 01-0 0340, slip o p. 02-83 ( Ct. In

t’l Trad e Aug. 6 , 2002). Sp ecifica lly, this Court ordered Commerce to: 1. Reconsid

er Commer

ce’s conclusion t

hat HFTC 30 faile d to act to the best o f its ability to comply

with Commerce’s requests for information for the direct sale s channe l. Id . at 14. 2. Further

explain its c onclusion

by showing t

hat (a) HFTC30 c ould compl y with the requ est for in formation; and (b) either H FTC30’s w

illful dec ision not to comply or HFTC3 0’s insuf

ficient a ttention to

its statuto ry

duties und

er the un fair trade laws. Id . (quo ting Nippon Steel Corp. v. United States , 118 F. Supp. 2d 1366, 1378 (2000)). 3. Explain why

the missing

informat ion reg arding

labor pr oduction f

actors is significant to the administrative review. Id . at 15 (quot ing Nippon Steel , 118 F. Supp. 2d at 1378-79).Court No. 01-00340 Page 3

1 The appe

ndix to Commer

ce’s Remand R esults contains the comments that Plaintiffs submitted to the Department of Commerce in response to Commerce’s “Dra ft Results of Determi nation Pur suant to Cou

rt Remand

” (Septe mber 20, 2 002). Plai

ntiffs’ f ailure to submit comments to this Court on the Remand R esultsconstitute s a waive r of Plain tiffs’ r ight to su bmit comments to the Remand R esults

. 4. Provide to the Court the appropriate labor factor to apply if Commerce reached the same conclusi on in its Remand R esults

. Id

. Plaintiff s have no t submitted

any comments t

o Commerc e’s Remand R esultsto the Court. 1 Upon consideration of the Remand R esults , the Cour t holds tha

t Commerc e duly complied with the Court’s August 6, 2002 Order. In re consider

ing whe ther HF TC30 acte d to the be st of its ab ility to comply

with Commerce’s requests for information for the direct sales channel, Commerce found that HFTC30 could hav e complie d with Comme rce’s r equests f or accu rate, ve rifiable labor fa ctors fo r its suppliers in the direct sales channel. ( Remand R esults at 8.) Commerce explained th at: “Huaiyin30’s [refe

rred to by the Court a s HFTC30] main business is selling crawfish tail meat, and during the period of r eview it dealt with a limited number of crawfish tail meat processors, including Hua iyin Free zing. As such, Huaiyin30 was in a p osition to pr

ovide the Department with a

ccurat e informa tion on its supplier s’ factors of pro duction, i ncluding labor. During ve

rificat ion, Huai yin Freezin g state d that it ma

intains at tendanc e recor

ds on a da

ily b asis, and

that it tallies these sheets to calculate total monthly labor hours. As the data requested by the Depa

rtment was routinely maintained by Huaiyin Fre ezing in the normal course of business, it was readily available and, as a consequence, would not have been burdensome to report accurate ly to the Department.” ( Id . at 8-9.) (citation omitted) Further, Commerce found that HFTC30 paid insufficient a ttention to its statutory duties under the unfair trade laws. ( Id . at 9.) Co mmerce e

xplained th at HFTC3 0 failed to reply accurately

to requests for factual information relevant to the administrative re view. ( Id . at 9.) Commerce supported its finding that HFTC30 paid insufficient attention to its statutory duties byCourt No. 01-00340 Page 4

noting that: (1) HFTC30 failed to demonstrate how it calculated its direc t, indirect, or packing labor factors of production even though HF TC30 was provided with sufficient notice that Commerce

intended to revie w these la bor produ ction fa ctors; (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 reg ard 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 R esults , Commerce stated that “such basic information as that which is us ed to cal culate la bor fac tors is an i

ntegra l part of t he antidu mping dut

y ma rgin calculation process” and the information “is solely within the control of [HFTC30].” ( Id . at 12.) Commerce concluded that a partial adverse inf erence was properly

applied in selecting from among facts otherwise available for the labor factor of production for HF TC30's direct sales channel suppliers. (

Id . at 17-18.) Commerce stated that the highest labor fa ctor on the record of this review should continue to apply to direc t sales channel labor factors of HFTC30. ( Id . at 18.) C ONCLUSI ON This Court f

inds that Co mmerce’ s Remand R esults are supported by substantial evidence on the record or otherwise in accorda nce with law. See 19 U.S.C. § 1516a(b)(1)(B)(i) (2000). Theref ore, Comme

rce’s Remand R esults are affirmed in the entirety

.

______________________________ Gregory W. Carman Dated: December , 2002 Chief Judge New York, New York