163 F. Supp. 3d 1255
Ct. Int'l Trade2016Background
- Commerce completed the 8th administrative review (Feb 1, 2012–Jan 31, 2013) of the antidumping duty order on frozen warmwater shrimp from Vietnam and issued Final and Amended Final Results selecting Bangladesh as the primary surrogate country and using Bangladeshi NACA data to value raw shrimp and Bangladeshi Bureau of Statistics (BBS) data to value labor.
- Commerce selected two mandatory respondents (Minh Phu Group (MPG) and Stapimex), denied Quoc Viet’s request to be a voluntary respondent, applied its differential-pricing analysis (including a Cohen’s d test) and in places applied the A-to-T comparison method to compute margins (resulting in margins for MPG and Stapimex and a separate-rate of 6.37%).
- Multiple parties (Tri Union, Quoc Viet, VASEP, Ad Hoc Shrimp) challenged Commerce’s decisions in consolidated USCIT §1516a actions, contesting surrogate-country selection, raw-shrimp species valuation, denial of voluntary respondent status, rejection of submissions as untimely new factual information, differential-pricing methodology, inflation/indexing practice, and the use of Bangladeshi labor wage data.
- The Court sustained Commerce’s Final Results in all respects except it granted the Government’s unopposed request for a voluntary remand so Commerce may reconsider its reliance on BBS labor data.
- The court reviewed (and rejected) challenges to: (1) selecting Bangladesh over other candidate countries (notably Indonesia); (2) using Bangladeshi NACA data to value vannamei (white) shrimp rather than supplementing with Indonesian species-specific data; (3) denying Quoc Viet voluntary-respondent treatment; (4) rejecting certain party submissions and MPG’s case brief as untimely new factual information; and (5) Commerce’s differential-pricing analysis (including the Cohen’s d test and the A-T application).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Surrogate-country selection (Bangladesh) | Tri Union/Quoc Viet: Indonesia (species-specific data) better for raw shrimp and thus Commerce’s choice unsupported | Commerce: Bangladesh is economically comparable, a significant producer, and its NACA data better covers the critical count-size ranges; record lacks substantiated Indonesia GNI | Court: Commerce’s selection of Bangladesh was reasonable and supported by substantial evidence |
| Use of Bangladeshi data for vannamei (white) shrimp | Tri Union/Quoc Viet: Commerce should have used Indonesian vannamei prices to value vannamei or supplement Bangladesh data | Commerce: count-size, not species, drives price; preference for single-surrogate-country data; Indonesian data lacked coverage of key large count sizes and would require distortive extrapolations | Court: Commerce reasonably used Bangladeshi NACA data for all raw shrimp; no requirement to combine sources |
| Denial of Quoc Viet as voluntary respondent | Quoc Viet: Commerce misapplied the standard and must grant voluntary review if only one request exists | Commerce: even one request can be denied when combined burdens (new mandatory respondent, complex FOPs, many separate-rate applicants, changed-circumstance reviews, resource limits) make individual review unduly burdensome | Court: Commerce made a separate §1677m(a) undue-burden determination and reasonably denied Quoc Viet’s request |
| Rejection of party submissions (Quoc Viet margins; MPG case brief) as untimely new factual information | Quoc Viet/ VASEP: outputs of calculations merely derive from record data and thus are not new factual information; MPG: cited academic/statistical sources are non-factual or previously relied on by Commerce | Commerce: program outputs, new SAS programs/logs/outputs, and academic materials not previously on the record constitute factual information subject to deadlines; parties had remedies (timely filing or extension) | Court: Commerce reasonably treated and rejected the filings as untimely new factual information under its rules |
| Differential-pricing analysis / Cohen’s d and A‑T application | VASEP: Commerce failed to explain shift from prior approach, Cohen’s d methodology (thresholds, pooled variance, weighted averages) is arbitrary and unprincipled; A‑T application thresholds (33%/66%) arbitrary | Commerce: statute does not prescribe exact test; differential-pricing practice and Cohen’s d are reasonable measures of effect size on full-population sales; thresholds and pooled-variance choices are reasonable and explained; A‑T application thresholds are a reasonable, experience-based tiered approach | Court: VASEP failed to exhaust some arguments; Commerce’s methodology (Cohen’s d, ratio test, thresholds, and application of A‑T) was reasonable and supported by substantial evidence |
| Inflation/indexing of UN Comtrade (Bangladesh inflator usage) | VASEP: Commerce misapplied its practice by not converting USD COMTRADE values to taka before inflating | Commerce: parties below (MPG/Stapimex) argued Commerce should use U.S. inflator; record did not present the specific conversion complaint so Commerce lacked opportunity to address | Court: VASEP failed to exhaust administrative remedies on this discrete conversion argument; claim precluded from review |
| Labor wage-rate data (BBS) | Ad Hoc Shrimp: BBS wage data aberrational (labor abuses) and distortive; Commerce must justify reliability | Commerce/Defendant: requested voluntary remand to reconsider the labor-rate determination | Court: Granted voluntary remand for Commerce to reconsider reliance on BBS labor data |
Key Cases Cited
- QVD Food Co. v. United States, 658 F.3d 1318 (Fed. Cir. 2011) (Commerce has broad discretion in choosing "best available information")
- Rhone Poulenc, Inc. v. United States, 899 F.2d 1185 (Fed. Cir. 1990) (AGENCY must ground surrogate selections in antidumping statute's purpose)
- Parkdale Int’l v. United States, 475 F.3d 1375 (Fed. Cir. 2007) (statute's objective is accurate margins)
- JBF RAK LLC v. United States, 790 F.3d 1358 (Fed. Cir. 2015) (Commerce may apply A‑T in reviews)
- Fujitsu General Ltd. v. United States, 88 F.3d 1034 (Fed. Cir. 1996) (deference to Commerce on complex economic/accounting methodology)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (U.S. 1983) (agency must cogently explain discretionary choices)
- SKF USA Inc. v. United States, 254 F.3d 1022 (Fed. Cir. 2001) (voluntary remand standard)