2012 CIT 137
Ct. Intl. Trade2012Background
- Vietnam is designated a non-market economy; Commerce uses surrogate values from market economies to determine normal value in NME cases.
- Commerce designated Bangladesh as the primary surrogate country for labor values under the New Labor Methodology, rejecting AHSTAC's Philippines preference.
- Commerce shifted to valuing labor solely from the primary surrogate country (Bangladesh) in light of Dorbest IV and Shandong decisions, adopting a New Labor Methodology, and published Final Modification modifying zeroing rules.
- Commerce's Final Modification announced that zeroing would be curtailed in administrative reviews to align with WTO findings, while zeroing remained in investigations.
- AHSTAC contends Bangladesh is not the best surrogate due to economic comparability; AHSTAC argues for Philippine data or multi-country averaging; AHSTAC raised the challenge post-notice but the court found exhaustion lacking.
- Court remands Commerce’s labor valuation; it affirms zeroing rationale but remands labor data reliance on Bangladeshi data for reconsideration or further explanation.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Zeroing in administrative reviews vs. investigations | Respondents | Commerce policy supports zeroing in reviews | Affirmed; zeroing explanation reasonable |
| Surrogate country choice Bangladesh | AHSTAC favored Philippines for comparability | Bangladesh chosen as primary surrogate | Not reached due to exhaustion; issue not decided |
| Labor methodology data source Bangladesh-only | Bangladesh data not sufficient; multi-country averaging preferable | New Labor Methodology justifies Bangladesh data as best available | Remanded for reconsideration or further explanation |
| Exhaustion of administrative remedies | Exhaustion excused due to late notice of policy | Exhaustion required | AHSTAC exhausted failed; issue not decided on merits |
Key Cases Cited
- Dorbest Ltd. v. United States, 604 F.3d 1363 (Fed. Cir. 2010) (invalidated regression-based labor valuation; spurred interim methods)
- Dorbest Ltd. v. United States, 35 CIT __, 755 F. Supp. 2d 1291 (2011) (interim labor methodology (multi-country averaging) upheld then narrowed)
- Grobest & I-Mei Indus. (Vietnam) Co. v. United States, 36 CIT __, 853 F. Supp. 2d 1352 (2012) (affirmed policy change aligning reviews with WTO decisions on zeroing)
- JTEKT Corp. v. United States, 642 F.3d 1378 (Fed. Cir. 2011) (affirmed differing methodologies in investigations vs. reviews)
- Dongbu Steel Co. v. United States, 635 F.3d 1363 (Fed. Cir. 2011) (support for differing review/investigation methodologies)
- Far East New Century Corp. v. United States, 36 CIT __, Slip Op. 12-110 (2012) (cites related zeroing/ methodology discussions)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1981) (substantial evidence standard in administrative review)
- Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984) (agency policy changes must be reasonable to be upheld)
- Fox Television Stations, Inc. v. FCC, 556 U.S. 502 (2009) (reasonable basis for agency policy changes)
- Dorbest IV, 604 F.3d 1363 (Fed. Cir. 2010) (invalidated certain labor valuation methodologies)