Camau Frozen Seafood Processing Import Export Corp. v. United States , 968 F. Supp. 2d 1328 ( 2014 )

Slip Op. 14 - 28
UNITED STATES COURT OF INTERNATIONAL TRADE
CAMAU FROZEN SEAFOOD PROCESSING
IMPORT EXPORT CORPORATION, ET
AL.,
Before: Donald C. Pogue,
Plaintiffs, Chief Judge
v.
Consol. Court No. 11-003991
UNITED STATES,
Defendant.
OPINION AND ORDER
[remanding the Department of Commerce’s second redetermination]
Dated: March 10, 2014
Andrew W. Kentz, Jordan C. Kahn and Nathaniel Maandig
Rickard, Picard Kentz & Rowe LLP, of Washington, DC, for
Plaintiff Ad Hoc Shrimp Trade Action Committee.
Matthew R. Nicely and Alexandra B. Hess, Hughes
Hubbard & Reed LLP, of Washington, DC, for Plaintiff Minh Phu
Seafood Corporation.
Joshua E. Kurland, Trial Attorney, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice,
of Washington, DC, for Defendant. Also on the brief were Stuart
F. Delery, Assistant Attorney General, Jeanne E. Davidson,
Director, and Patricia M. McCarthy, Assistant Director. Of
counsel on the brief was Mykhaylo Gryzlov, Senior Attorney,
Office of the Chief Counsel for Trade Enforcement and
Compliance, U.S. Department of Commerce, of Washington, DC.
1
This action is consolidated with Ad Hoc Shrimp Trade Action
Committee v. United States, Court No. 11-00383. Order,
Dec. 20, 2011, ECF No. 30.
Consol. Court No. 11-00399 Page 2
Pogue, Chief Judge: This consolidated action returns
to court following remand for a second redetermination of the
final results of the fifth administrative review of an
antidumping duty order covering certain frozen warmwater shrimp
from the Socialist Republic of Vietnam (“Vietnam”).2 At issue is
the estimation by the United States Department of Commerce
(“Commerce”) of a surrogate fair market labor wage rate for the
shrimping industry in Vietnam, which Commerce treats as a non-
market economy (“NME”).
In its 2d Remand Results, Commerce claims that the
court’s second remand order compelled the agency to use data
from more than one country when calculating surrogate labor
values in this review, contrary to Commerce’s new labor rate
2
See Certain Frozen Warmwater Shrimp from the Socialist Republic
of Vietnam, 76 Fed. Reg. 56,158 (Dep’t Commerce Sept. 12, 2011)
(final results and final partial rescission of antidumping duty
administrative review) (“Final Results”) and accompanying Issues
& Decision Mem., A-552-802, ARP 09-10 (Aug. 31, 2011) (“I & D
Mem.”) cmt. 2I; Camau Frozen Seafood Processing Imp. Exp. Corp.
v. United States, __ CIT __, 880 F. Supp. 2d 1348 (2012) (“Camau
I”) (remanding Final Results); Final Results of Redetermination
Pursuant to [Camau I] (Nov. 15, 2012), ECF No. 90 (“1st Remand
Results”); Camau Frozen Seafood Processing Imp. Exp. Corp. v.
United States, __ CIT __, 929 F. Supp. 2d 1352 (2013) (“Camau
II”) (remanding 1st Remand Results); Final Results of
Redetermination Pursuant to [Camau II] (July 31, 2013),
ECF No. 107-1 (“2d Remand Results”). Familiarity with the facts
and procedural posture of this case is presumed. Facts most
relevant to the legal issues presented are briefly summarized in
the ‘Background’ section of this opinion.
Consol. Court No. 11-00399 Page 3
policy. But Commerce’s claim is incorrect. Rather, the court’s
prior decisions required that Commerce address, evaluate, and
weigh the conflicting record evidence regarding the
appropriateness of its surrogate data choices for valuing the
relevant factors in this review, including labor. Commerce has
yet to do so. Consequently, the 2d Remand Results must again be
remanded for additional consideration, consistent with Camau I,
Camau II, and this opinion.
BACKGROUND
Because Commerce treats Vietnam as an NME country,3
Commerce determines the normal value of merchandise from Vietnam
by using surrogate market economy data to calculate production
costs and profit. See 19 U.S.C. § 1677b(c)(1) (2006). In doing
so, Commerce’s valuation of the factors of production (“FOPs”)
must be “based on the best available information regarding the
values of such factors in a market economy country or countries
considered to be appropriate by the [agency].” Id. “[T]o the
extent possible,” Commerce is required to use data from
countries that are both economically comparable to the NME and
significant producers of comparable merchandise.
Id. at § 1677b(c)(4).
3
See Final Results, 76 Fed. Reg. at 56,160.
Consol. Court No. 11-00399 Page 4
In the past, Commerce generally valued the labor FOP
for NME countries by using “regression-based wage rates
reflective of the observed relationship between wages and
national income in market economy countries.” 19 C.F.R.
§ 351.408(c)(3) (2010).4 Regression-based NME wage rates
“estimate[d] the linear relationship between yearly per capita
gross national income (‘[GNI]’) and hourly wage rate (‘wage’)”
to arrive at the wage for an NME country by using the NME’s GNI.5
During the prior (fourth) administrative review of
this antidumping duty order, however, 19 C.F.R. § 351.408(c)(3)
was invalidated as contrary to the statute because it did not
4
See Antidumping Duties; Countervailing Duties, 61 Fed. Reg.
7308, 7345 (Dep’t Commerce Feb. 27, 1996) (“[W]hile per capita
[gross domestic product] and wages are positively correlated,
there is great variation in the wage rates of the market economy
countries that [Commerce] typically treats as being economically
comparable. As a practical matter, this means that the result of
an NME case can vary widely depending on which of the
economically comparable countries is selected as the surrogate.
. . . [U]se of [regression-based] wage rate[s] will contribute
to both the fairness and the predictability of NME proceedings.
By avoiding the variability in results depending on which
economically comparable country happens to be selected as the
surrogate, the results are much fairer to all parties.”).
5
Zhejiang DunAn Hetian Metal Co. v. United States, __ CIT __,
707 F. Supp. 2d 1355, 1366 (2010) (footnote omitted), vacated on
other grounds, 652 F.3d 1333 (Fed. Cir. 2011); see also Dorbest
Ltd. v. United States, 604 F.3d 1363, 1371 (Fed. Cir. 2010)
(“Commerce determines a linear trend that best fits the data,
providing a way to predict the labor rate for a country with any
given gross national income.”).
Consol. Court No. 11-00399 Page 5
rely exclusively on data from economically comparable countries
that are significant producers of comparable merchandise.6
Consequently, in that prior fourth review Commerce used a new
method for calculating the surrogate wage rate when determining
the normal value of subject merchandise from Vietnam.
Explaining its new method, Commerce specifically rejected
proposals to calculate the surrogate wage rate using data solely
from Bangladesh – the chosen primary surrogate country.
Commerce declared:
While information from a single surrogate country can
reliably be used to value other FOPs, wage data from a
single surrogate country does not constitute the best
available information for purposes of valuing the
labor input due to the variability that exists between
wages and GNI. While there is a strong world-wide
relationship between wage rates and GNI, too much
variation exists among the wage rates of comparable
[market economies]. As a result, we find reliance on
wage data from a single country to be unreliable and
arbitrary.7
6
See Dorbest, 604 F.3d at 1372 (invalidating 19 C.F.R.
§ 351.408(c)(3) as contrary to 19 U.S.C. § 1677b(c)(4) because
the regulation “improperly require[d] using data from both
economically comparable and economically dissimilar countries,
and it improperly use[d] data from both countries that produce
comparable merchandise and countries that do not”).
7
Certain Frozen Warmwater Shrimp from the Socialist Republic of
Vietnam, Issues & Decision Mem., A-552-802, ARP 08-09
(July 30, 2010) (adopted in 75 Fed. Reg. 47,771 (Dep’t Commerce
Aug. 9, 2010) (final results and partial rescission of
antidumping duty administrative review)) (“AR4 I & D Mem.”)
cmt. 9 at 27. See also supra note 4.
Consol. Court No. 11-00399 Page 6
That is, Commerce rejected proposals to base Vietnam’s surrogate
wage rate on data from Bangladesh because, although Bangladesh
is sufficiently economically comparable to Vietnam for the
purpose of valuing the other FOPs, the observed strong linear
relationship between wage rates and GNI suggests that data from
Bangladesh, which has a GNI roughly half that of Vietnam,8 are
unlikely to be representative of a fair market wage rate in
Vietnam. The surrogate wage rate ultimately calculated for
Vietnam in the fourth review was $0.89. AR4 I & D Mem. cmt. 9
at 31.
Before the results of this (fifth) review were
finalized, however, Commerce published its determination that,
in light of the recent judicial decisions constraining the
available dataset for calculating surrogate FOP values in NME
cases,9 Commerce was changing its policy from a preference for
8
See Camau I, __ CIT at __, 880 F. Supp. 2d at 1359-60 & n.12
(discussing the GNI data on record).
9
See Dorbest, 604 F.3d 1371-72 (holding that because the statute
requires Commerce to use data from economically comparable
countries “to the extent possible,” Commerce may not employ a
methodology that requires using data from both economically
comparable and economically dissimilar countries, in the absence
of a showing “that using the data Congress has directed Commerce
to use is impossible”); Shandong Rongxin Imp. & Exp. Co. v.
United States, __ CIT __, 774 F. Supp. 2d 1307, 1316 (2011)
(holding that because the statute requires Commerce to use, “to
the extent possible,” data from countries that are “significant”
(footnote continued)
Consol. Court No. 11-00399 Page 7
using data from multiple market economies when constructing
surrogate labor rates to a policy of relying on data from a
single market economy to calculate all surrogate FOPs, including
labor.10 For its final results of this review, therefore,
Commerce employed the New Labor Rate Policy to arrive at the
surrogate wage rate used to construct normal value. I & D Mem.
cmt. 2I. Using data solely from the primary surrogate country,
Bangladesh, Commerce calculated a surrogate wage rate for
Vietnam’s shrimping industry of $0.21.11
Responding to the Ad Hoc Shrimp Trade Action
Committee12 (“AHSTAC”)’s challenge to the application of
Commerce’s New Labor Rate Policy in this review, this Court held
that although the New Labor Rate Policy is reasonable on its
producers of comparable merchandise, Commerce may not employ a
methodology that requires using data from “countries which
almost certainly have no domestic production – at least not any
meaningful production, capable of having influence or effect”).
10
Antidumping Methodologies in Proceedings Involving Non-Market
Economies: Valuing the Factor of Production: Labor, 76 Fed. Reg.
36,092 (Dep’t Commerce, June 21, 2011) (“New Labor Rate
Policy”).
11
See Camau I, __ CIT at __, 880 F. Supp. 2d at 1359-60 & n.12
(explaining how the $0.21 rate was derived from the evidence in
this review).
12
AHSTAC is an association of manufacturers, producers, and
wholesalers of a domestic like product in the United States that
participated in this review. Compl., Court No. 11-00383,
ECF No. 8, at ¶ 9.
Consol. Court No. 11-00399 Page 8
face, Commerce’s conclusion that Bangladesh provided the best
available data from which to value all FOPs in this review,
including labor, could not be sustained without further
evaluation and explanation. Camau I, __ CIT at __, 880 F. Supp.
2d at 1358-61. As the court explained, though Commerce may use
a single surrogate country for all FOPs (which it is statutorily
neither required to do nor prohibited from doing), the
reasonableness of using that country’s data must be explained
where the evidence and factual findings on record may fairly
detract from the weight of Commerce’s determination. Id.13
13
Established principles of administrative law, while permitting
the agency to change course and adopt a new policy within the
scope of its statutory authority (as this new policy is),
require the agency to explain how applying the new policy is
consistent with the evidence and prior factual findings on
record. See Motor Vehicle Mfrs. Ass’n of the U.S., Inc. v. State
Farm Mutual Auto. Ins. Co., 463 U.S. 29, 46-48 (1983) (holding
that an agency may not change course without addressing the
continued relevance of factual findings on which the agency’s
prior policy was based); FCC v. Fox Television Stations, Inc.,
556 U.S. 502, 537 (2009) (J. Kennedy, concurring in part and
concurring in judgment) (explaining that State Farm followed the
principle that an agency “cannot simply disregard contrary or
inconvenient factual determinations that it made in the past,
any more than it can ignore inconvenient facts when it writes on
a blank slate”). For agency action to be based on substantial
evidence, the agency must explain why evidence that fairly
detracts from the reasonableness of its determination does not
outweigh that which supports it. See Universal Camera Corp. v.
NLRB, 340 U.S. 474, 488 (1951).
Consol. Court No. 11-00399 Page 9
Specifically, the court remanded the Final Results
because the record evidence included Commerce’s prior findings
that 1) GNI is linearly correlated to wage rates14; 2) Commerce’s
economic comparability analysis allows for a fairly wide range
of GNI values to satisfy the economic comparability criterion
for surrogate market economy countries15; and 3) Bangladesh’s
GNI, equaling roughly half of Vietnam’s, is sufficiently
disparate from that of Vietnam that, given 1) above, using
solely the wage rate data from Bangladesh would likely
understate the estimate for a fair market wage rate in Vietnam.16
These are findings that fairly detract from the reasonableness
of Commerce’s conclusion that the $0.21 wage rate derived from
Bangladeshi data provides the best information available
regarding the market wage rate that would be Vietnam’s if
Vietnam were a market economy. Because Commerce did not address
these findings and explain the continued reasonableness of its
decision notwithstanding these factual circumstances, the court
remanded Commerce’s determination for additional consideration
14
See supra notes 4 and 7.
15
Id.
16
See AR4 I & D Mem. cmt. 9 at 27-29.
Consol. Court No. 11-00399 Page 10
and/or more explanation. Camau I, __ CIT at __, 880 F. Supp. 2d
at 1358-61.
Responding to the court’s first remand order, Commerce
continued to insist that, given the court’s recent decisions
directing the agency to keep within the bounds of its statutory
authority, and given the relevant statutory constraints, the
agency is now justified in using data, without further
evaluation, that it had previously rejected as arbitrary.
See 1st Remand Results.17 The court remanded again, again
17
Commerce emphasized recent court decisions that have reminded
the agency of the statutory constraints on its construction of
normal value for NME-originating merchandise, restraining the
agency from overstepping its statutory authority by using a
wider dataset than is statutorily permitted. See supra note 9
(discussing Dorbest and Shandong). What the courts held in
those cases is that the statute requires Commerce to use, to the
extent possible, data from countries that are economically
comparable and significant producers of comparable merchandise.
As demonstrated in the challenges underlying these judicial
decisions, rather than evaluating the extent to which it was
possible to base its calculations on such statutorily prescribed
data, Commerce was instead formulaically relying on data from
countries that did not satisfy one or both of these statutory
requirements. Accordingly, the agency’s approach to normal
value construction in NME cases required reconsideration.
In Camau I, the court suggested that one option for
Commerce, on this particular record, may be to use data from the
Philippines (for which Commerce also undertook a full potential
surrogate analysis, consistent with 19 U.S.C. § 1677b(c)) to
analyze (and perhaps correct for) the magnitude of potential
undervaluation involved in relying on the Bangladeshi data
alone. See Camau I, __ CIT __, 880 F. Supp. 2d at 1360-61. In
response, Commerce unreasonably claimed that the Bangladeshi and
Philippine data were wholly incomparable, despite the agency’s
(footnote continued)
Consol. Court No. 11-00399 Page 11
holding that Commerce must explain its conclusion to account for
the evidence that using Bangladeshi wage data would likely
significantly undervalue the surrogate wage rate due to the
roughly 50 percent GNI disparity between Bangladesh and Vietnam.
See Camau II, __ CIT at __, 929 F. Supp. 2d at 1354-58.
Now, in its second redetermination, Commerce has
thrown up its proverbial hands, maintaining “under respectful
protest” that the court’s decisions have dictated to the agency
to average data from multiple countries when determining
surrogate labor FOP values, contrary to the New Labor Rate
Policy. See 2d Remand Results at 7-8.
STANDARD OF REVIEW
This Court will uphold Commerce’s determinations on
remand if they are in accordance with law, consistent with the
court’s remand order, and supported by substantial evidence.
See 19 U.S.C. § 1516a(b)(1)(B)(i); Trust Chem Co. v. United
States, __ CIT __, 819 F. Supp. 2d 1373, 1378 (2012).
Substantial evidence is “such relevant evidence as a reasonable
mind might accept as adequate to support a conclusion,”
routine use of data from both of the sources at issue to value
surrogate labor rates (suggesting sufficient comparability in
Commerce’s view for these datasets to be at least theoretically
interchangeable for the purpose of valuing labor). See Camau II,
__ CIT __, 929 F. Supp. 2d at 1357.
Consol. Court No. 11-00399 Page 12
Universal Camera, 340 U.S. at 477 (internal quotation marks and
citation omitted), and the “substantiality of evidence must take
into account whatever in the record fairly detracts from its
weight.” Id. at 488.
Although “a court is not to substitute its judgment
for that of the agency,” the court must ensure that the agency
“examine[d] the relevant data and articulate[d] a satisfactory
explanation for its action including a ‘rational connection
between the facts found and the choice made.’” State Farm,
463 U.S. at 43 (quoting Burlington Truck Lines, Inc. v. United
States, 371 U.S. 156, 168 (1962)). In providing the required
explanation for its action, the agency “must cogently explain
why it has exercised its discretion in a given manner,” id.
at 48 (citations omitted), and “supply a reasoned analysis” that
comports with its factual findings and the evidentiary record.
Id. at 57 (internal quotation marks and citation omitted).
“The grounds upon which an [agency action] must be
judged are those upon which the record discloses that [the]
action was based.” Changzhou Wujin Fine Chem. Factory Co. v.
United States, 701 F.3d 1367, 1377 (Fed. Cir. 2012) (quoting SEC
v. Chenery Corp., 318 U.S. 80, 87 (1943)). “Review of an
administrative decision must be made on the grounds relied on by
the agency. If those grounds are inadequate or improper, the
court is powerless to affirm the administrative action by
Consol. Court No. 11-00399 Page 13
substituting what it considers to be a more adequate or proper
basis.” Id. at 1379 (internal quotation marks and citations
omitted).
DISCUSSION
Here, Commerce’s second remand redetermination was the
result of a methodology applied “under respectful protest.”
2d Remand Results at 7-8. That is, the agency acted not from
its own analysis and conclusions, but rather based upon a belief
that it was compelled to act as it did by this Court’s decisions
in Camau I and Camau II. See id.18 But Commerce is incorrect
that either of those decisions compelled the agency to act as it
did in the 2d Remand Results.
As discussed above,19 the court did not order Commerce
to do anything more than what is required of it pursuant to
established principles of administrative law – namely, to
provide a reasoned and reasonable explanation connecting its
conclusion to the record evidence, including the evidence
18
See also GPX Int’l Tire Corp. v. United States, __ CIT __,
942 F. Supp. 2d 1343, 1348 n.2 (2013) (“The only legitimate
purpose of registering a protest in a remand determination is to
preserve a particular issue for appeal where the agency has been
compelled to take a particular step that results in an outcome
not of its choosing.”) (emphasis added).
19
See the ‘Background’ section of this opinion.
Consol. Court No. 11-00399 Page 14
suggesting that Bangladesh’s wage data is likely to
significantly understate the estimated fair market wage rate in
Vietnam.20 The requirement to rethink and/or further explain the
agency’s approach in order to reach results that are supported
by a reasonable reading of the entire record is not synonymous
(as Commerce implies) with a compulsion to employ any particular
approach.
Because Commerce’s 2d Remand Results were reached
based on an erroneous belief that the specific determinations
contained therein were compelled by the decisions of this Court,
these results cannot be affirmed on the basis provided.21 While
the court has ordered the agency to support its determination
with sufficient explanation of the entire evidentiary record, it
is for Commerce to weigh and analyze the conflicting evidence
and provide a reasoned explanation for the outcome of such
20
Contrary to Commerce’s stance in the 2d Remand Results, the
court’s insistence on the provision of this required reasoning
does not force the agency to abandon its new policy in favor of
multi-country averaging because, as discussed below, averaging
multiple countries’ wage data is not the only method by which
Commerce can reach a result that is consistent with a reasoned
and reasonable reading of the evidentiary record.
21
See Changzhou, 701 F.3d at 1379 (“Review of an administrative
decision must be made on the grounds relied on by the agency.”)
(internal quotation marks and citation omitted).
Consol. Court No. 11-00399 Page 15
weighing.22 Thus the 2d Remand Results – which abdicate the
agency’s responsibility by announcing that the determinations
contained therein are not the result of the agency’s own
analysis but rather the apparent implementation of an erroneous
reading of this Court’s decisions23 – cannot be affirmed. This
issue must therefore again be remanded for reconsideration,
consistent with Camau I, Camau II, and this opinion.
Importantly, it is simply not the case that the only
alternative to Commerce’s Final Results and 1st Remand Results
is to deviate from the New Labor Rate Policy and average the
Bangladeshi wage data with other data. As the court held in
Camau I, Commerce reasonably determined that, in general, the
administrative costs of engaging in a complex and lengthy
analysis of additional surrogate data for the labor FOP may
outweigh the accuracy-enhancing benefits of doing so.
See Camau I, __ CIT __, 880 F. Supp. 2d at 1358. But as the
court also held in Camau I, the particular evidentiary record of
this review includes Commerce’s prior finding that Bangladeshi
wage data are likely to significantly understate the estimate
22
See, e.g., Legacy Classic Furniture, Inc. v. United States, __
CIT __, 867 F. Supp. 2d 1321, 1328-29 (2012) (requiring Commerce
to provide a reasoned analysis or explanation for how it weighed
conflicting record evidence).
23
See 2d Remand Results at 7-8. See also supra note 19.
Consol. Court No. 11-00399 Page 16
for a fair market labor rate in Vietnam. See id. at 1360-61.
All of the factual premises on which Commerce based its
determination not to use the Bangladeshi wage data in the
previous review remain in effect – Bangladesh’s GNI remains
roughly half that of Vietnam’s and Commerce’s findings regarding
the positive linear correlation between GNI and wage rates
remain uncontroverted.24 But in the Final Results and 1st Remand
Results, Commerce did not address the relative weight of this
prior finding when determining that data from Bangladesh provide
the best available information from which to value all of the
surrogate FOPs in this review.25
One option that continues to be available to Commerce
on remand, therefore, is to explicitly weigh the evidence that
Bangladeshi wage data are likely to understate the surrogate
fair market labor rate for the shrimping industry in Vietnam
against the remaining evidence (if any) that Bangladeshi
surrogate FOP data as a whole are nevertheless the best
24
As noted above, Commerce has found that, as a matter of
economic fact, labor wage rates in market economies tend to be
linearly correlated with GNI. One logical implication of this
finding is that surrogate market economy countries with a GNI
that, though treated as “economically comparable,” is fairly
divergent from that of the NME at issue, will provide labor wage
data that similarly under- or over-states the estimation of fair
market labor rates in the NME.
25
See I & D Mem. cmt. 2I at 24; 1st Remand Results at 7-8.
Consol. Court No. 11-00399 Page 17
available data on record from which to value all of the
surrogate FOPs in this review.26 The agency may want to
consider:
- Is the data from Bangladesh with regard to the other
FOPs so superior in quality to that from any other
potential surrogate that the accuracy-enhancing
benefits of using such data outweigh the accuracy-
loss resulting from the wage rate undervaluation?
- Is accuracy/data quality with regard to the other
FOPs more important than accuracy with regard to
labor?
- How great is the effect of an undervalued wage rate
on the accuracy of the resulting dumping margin?
- How great is the administrative effort involved in
analyzing data for the purpose of adjusting the
Bangladeshi wage data to increase accuracy?
- Does this effort outweigh its accuracy-enhancing
benefits?
- Is there anything about the interrelationship between
the Bangladeshi data for the respective FOPs that
26
Nor is the agency prohibited from opening the record to obtain
additional evidence to adjust or otherwise reconsider the
Bangladeshi data.
Consol. Court No. 11-00399 Page 18
makes the use of such data relatively more accuracy-
enhancing than using FOP data from another surrogate
country with a GNI closer to Vietnam’s?
- Conversely, does Commerce’s inability to explain and
account for the labor undervaluation suggest that
perhaps another surrogate country choice may be more
reasonable?
- Are there additional data from Bangladesh that
Commerce could use to adjust the wage data to
correct, or at least diminish or ameliorate, the
likely undervaluation?
It may be that, upon weighing the evidence, Commerce
decides that the reasons supporting the use of Bangladesh as the
primary surrogate country outweigh the trade-off of losing some
accuracy with regard to the labor FOP value. As the court has
held, Commerce is not required to deviate from its New Labor
Rate Policy and use data from more than one country when
calculating the labor FOP in this case. But Commerce must
address its prior finding that Bangladeshi wage data are likely
to understate the fair market rate in Vietnam and weigh the
impact of this finding on the accuracy of the resulting dumping
analysis against the explicit benefit(s) – if any – that
nevertheless support the continued use of Bangladeshi data to
construct a normal value in this case.
Consol. Court No. 11-00399 Page 19
Should Commerce choose to engage in such evidence-
weighing, however, the agency must explicitly lay out the value-
choices and data preferences it is making, so that the path of
its analysis may reasonably be discerned as based on some set of
predictable standards, as well as to provide a basis for
judicial review. For while it is Commerce’s job to weigh the
evidence, the court’s role on review is to ensure that such
weighing is done explicitly and reasonably.27 The court cannot
do so if Commerce, rather than laying out the reasonable value
choices it makes in giving more or less weight to some aspects
of the evidentiary record than to others, fails to acknowledge
that the evidence is conflicting.28
In sum, Commerce’s valuation of the labor FOP used to
construct a normal value for the subject merchandise in this
review remains without an adequate reasoned explanation linking
it to the record evidence. In the original determination and in
the 1st Remand Results, the decision to use solely the
identified data from Bangladesh to value the market labor rate
for Vietnam’s shrimping industry was not reasonably explained in
light of Commerce’s outstanding and unaccounted-for prior
27
See supra note 23.
28
See supra notes 7, 25-26.
Consol. Court No. 11-00399 Page 20
finding that these data are likely to understate the estimate
due to the GNI disparity between Vietnam and Bangladesh. And
the 2d Remand Results do not provide the requisite support for
affirmance because they are not grounded in an analysis of the
factual record but are the apparent result of a mistaken belief
in a compulsion to reach such results. Accordingly, this matter
is again remanded for further consideration.
CONCLUSION
For all of the foregoing reasons, Commerce’s 2d Remand
Results are remanded for further consideration, consistent with
this opinion and the decisions in Camau I and Camau II.
Commerce shall have until May 6, 2014, to complete and file its
remand results. Plaintiffs shall have until May 20, 2014, to
file comments. The parties shall have until June 3, 2014, to
file any reply.
It is SO ORDERED.
__/s/ Donald C. Pogue_______
Donald C. Pogue, Chief Judge
Dated: March 10, 2014
New York, NY