CS Wind Vietnam Co. v. United States
2017 CIT 26
| Ct. Intl. Trade | 2017Background
- CS Wind challenged Commerce’s methodology in an antidumping investigation of Vietnamese wind towers; the Federal Circuit (CS Wind IV) reversed and directed Commerce to use manufacturer-reported component weights rather than transoceanic packing-list weights.
- The CIT remanded to Commerce to implement the Federal Circuit’s mandate and to reconsider certain surrogate financial ratio (overhead) calculations tied to a Ganges surrogate financial statement line item labeled “Jobwork Charges (including Erection and Civil Expenses).”
- On remand (Third Remand Results), Commerce under protest used the manufacturer-reported weights per the Federal Circuit’s direction and revised its erection/civil income ratio methodology, increasing the portion of certain expenses (jobwork charges, in-house labor, store & spares) excluded from overhead.
- Commerce explained it has authority to request clarifying information from third-party surrogate companies (like Ganges) but maintains a longstanding practice of generally not doing so because it cannot compel responses, ensure timeliness/accuracy, or reliably verify them.
- WTTC (defendant-intervenor) argued Commerce (1) relied too literally on the Federal Circuit’s direction to use manufacturer weights; (2) should have sought clarification from Ganges about jobwork charges; and (3) should have reconsidered the surrogate value for steel plate based on later Steel India data. The court rejected these challenges and sustained the Third Remand Results.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce permissibly used manufacturer-reported weights on remand | WTTC: Federal Circuit could not lawfully dictate Commerce’s methodological choice; Commerce shouldn’t have relied solely on the mandate | Commerce/Gov: Federal Circuit’s direction bound Commerce under the mandate rule; remand implementation required | Court: Commerce properly followed the Federal Circuit mandate; reliance was adequate explanation |
| Whether Commerce reasonably revised the erection/civil income ratio | WTTC: (raised concerns earlier) implied errors in treatment; should have further explained | Commerce: revised ratio and methodology lowered margins and was unchallenged on remand | Court: No party directly challenged the methodology before the court; issue waived and court declines sua sponte review |
| Whether Commerce abused discretion by not requesting clarification from Ganges | WTTC: Commerce could and should have sought clarifying info about jobwork charges; low burden | Commerce/Gov: Commerce has authority but generally refrains because it cannot compel or assure timely/accurate responses and verification is burdensome | Court: Commerce has authority but did not abuse discretion in declining to seek third‑party clarification given inability to compel, verification burdens, and practice justification |
| Whether Commerce abused discretion by rejecting WTTC’s unsolicited steel-plate data | WTTC: New Steel India data from a later review shows original data is materially incorrect and warrants revisiting surrogate value | Commerce/Gov: WTTC waived challenge by not timely raising it; unsolicited factual information may be rejected; no evidence of material fraud | Court: Commerce did not abuse discretion in rejecting unsolicited comment; WTTC failed to show material misstatement or timely challenge |
Key Cases Cited
- CS Wind Vietnam Co. v. United States, 832 F.3d 1367 (Fed. Cir.) (reversed Commerce’s use of packing weights and directed use of manufacturer-reported weights)
- Banks v. United States, 741 F.3d 1268 (Fed. Cir.) (explaining mandate-rule exceptions)
- TecSec, Inc. v. Int’l Bus. Machs. Corp., 731 F.3d 1336 (Fed. Cir.) (interpretation of mandate: letter and spirit)
- Gilda Indus., Inc. v. United States, 446 F.3d 1271 (Fed. Cir.) (failure to raise issue results in waiver)
- Allegheny Ludlum Corp. v. United States, 287 F.3d 1365 (Fed. Cir.) (distinguishing Commerce from ITC subpoena authority)
- Qingdao Sea-Line Trading Co. v. United States, 766 F.3d 1378 (Fed. Cir.) (each administrative review is a separate proceeding allowing different conclusions)
- Home Prods. Int’l, Inc. v. United States, 633 F.3d 1369 (Fed. Cir.) (factors for reopening record or considering fraud)
- Timken Co. v. United States, 699 F. Supp. 300 (Ct. Int’l Trade) (permissible for Commerce to rely on unverified publicly available surrogate data)