2013 CIT 95
Ct. Intl. Trade2013Background
- Plaintiffs (Camau and other Vietnamese shrimp producers) challenged Commerce's final results of the 5th administrative review of the antidumping order on frozen warmwater shrimp from Vietnam, specifically Commerce’s valuation of labor.
- Commerce, applying its New Labor Methodology, valued labor solely using Bangladesh Bureau of Statistics (BBS) data rather than averaging across multiple surrogate countries.
- The court in Camau I remanded, directing Commerce to explain or reconsider using BBS data alone given Commerce's prior multi-country averaging rationale and the large disparity between Bangladeshi and Philippine labor/ GNI data on the record.
- On remand, Commerce defended using BBS data by invoking its policy to value all factors of production (FOPs) from a single surrogate country when possible to reflect relative input price trade-offs.
- Record includes alternative labor data (ILO datasets for the Philippines and other countries) showing much higher wage rates; Commerce asserted differences in aggregation between datasets made them incomparable.
- The court found Commerce’s remand explanation inadequate because Commerce did not address record evidence suggesting potential distortion from using the single (Bangladeshi) value nor sufficiently justify incomparability based only on aggregation level.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce reasonably valued labor solely using Bangladesh (BBS) data | BBS-only valuation is unreasonable given prior Commerce policy favoring multi-country averaging and the large disparity with Philippine data | Commerce’s single-surrogate-country policy is reasonable and should control; datasets are not comparable due to different aggregation levels | Remanded: Commerce must further explain or reconsider its choice; current explanation insufficient |
| Whether Bangladeshi labor data are aberrational | AHSTAC (intervenor) argued BBS rate is aberrational because it is the lowest on record | Commerce said differences in aggregation prevent reliable comparison with ILO data | Court: Bangladeshi data not shown aberrational on record; but Commerce failed to address conflicting evidence adequately |
| Whether differing aggregation levels render datasets incomparable | Plaintiffs/intervenors treat datasets as comparable for assessing distortion | Commerce contends aggregation differences preclude comparison | Remanded: Commerce must justify why aggregation differences make comparison invalid; mere assertion insufficient |
| Whether Commerce complied with remand and supported its decision with substantial evidence | Plaintiffs argued remand order not satisfied and record evidence not considered | Commerce argued remand satisfied by invoking single-surrogate policy and incomparability rationale | Held: Commerce did not adequately address conflicting record evidence; remand ordered for further explanation or reconsideration |
Key Cases Cited
- Dorbest Ltd. v. United States, 604 F.3d 1363 (Fed. Cir. 2010) (limits on which countries/data may be used in surrogate value calculations)
- Peer Bearing Co.-Changshan v. United States, 804 F. Supp. 2d 1337 (CIT 2011) (single-surrogate preference acceptable when other data are fairly equal)
- Mittal Steel Galati S.A. v. United States, 502 F. Supp. 2d 1295 (CIT 2007) (aberrational surrogate value concerns when based on tiny import volumes)
- Shandong Rongxin Import & Export Co. v. United States, 774 F. Supp. 2d 1307 (CIT 2011) (Commerce’s surrogate selections must reflect significant producers of comparable merchandise)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (U.S. 1951) (administrative findings must consider contrary record evidence)
- Consolo v. Fed. Maritime Comm'n, 383 U.S. 607 (U.S. 1966) (possibility of two reasonable inferences does not preclude substantial-evidence support)
- Nippon Steel Corp. v. United States, 458 F.3d 1345 (Fed. Cir. 2006) (agency must provide reasoned basis for determinations)
- Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333 (Fed. Cir. 2011) (Commerce’s explanations must support surrogate-value choices)
- Amanda Foods (Viet.) Ltd. v. United States, 647 F. Supp. 2d 1368 (CIT 2009) (agency must explain dataset comparability when choosing surrogate values)