Tri Union Frozen Products, Inc. et al v. United States

Slip Op. 16-33
UNITED STATES COURT OF INTERNATIONAL TRADE
TRI UNION FROZEN PRODUCTS, INC. ET AL.,
Plaintiffs and Consolidated
Plaintiffs,
v.
UNITED STATES ,
Defendant,
and
AD HOC SHRIMP TRADE ACTION
COMMITTEE,
Defendant-Intervenor.
Before: Claire R. Kelly, Judge
Consol. Court No. 14-00249
Public Version
OPINION AND ORDER
[Granting 	Defendant’s 	request 	for 	voluntary 	remand 	for 	the 	U.S. 	Department 	of
Commerce to reconsider its reliance on certain data to value labor and sustaining all other
aspects of the final determination in the eighth administrative review of the antidumping
duty order covering certain frozen warmwater shrimp from Vietnam.]
Dated: April 6, 2016
Jonathan Michael Freed, Trade Pacific, PLLC, of Washington DC argued for Plaintiffs Tri
Union 	Frozen 	Products, 	Inc., 	Mazzetta 	Company 	LLC, 	Ore-Cal 	Corporation, 	and
Consolidated Plaintiff Quoc Viet Seaproducts Processing Trading and Import-Export Co.,
Ltd. With him on the brief was Robert George Gosselink.
William Henry Barringer and Matthew Paul McCullough, Curtis, Mallet-Prevost, Colt &
Mosle LLP, of Washington DC argued for Consolidated Plaintiffs Vietnam Association of
Seafood Exporters and Producers and certain of its individual member companies. With
them on the brief were, Claudia Denise Hartleben, Curtis, Mallet-Prevost, Colt & Mosle
LLP, of Washington DC, Alexandra Bradley Hess and Matthew Robert Nicely, Hughes
Hubbard & Reed LLP, of Washington DC.
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Nathaniel Jude Maandig Rickard, Picard, Kentz & Rowe, LLP, of Washington DC argued
for 	Consolidated 	Plaintiff 	and 	Defendant-Intervenor 	Ad 	Hoc 	Shrimp 	Trade 	Action
Committee.
Joshua Ethan Kurland, Trial Attorney, and Kara Marie Westercamp, Trial Attorney,
Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington
DC, argued for Defendant. 	With him on the brief were Benjamin C. Mizer, Principal
Deputy Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M.
McCarthy, Assistant Director. Of Counsel on the brief was Mykhaylo Alexander Gryzlov,
Senior Attorney, Office of the Chief Counsel for Trade and Compliance, U.S. Department
of Justice, of Washington DC.
Kelly, Judge: This consolidated action comes before the court on USCIT Rule 56.2
motions for judgment on the agency record, challenging the U.S. Department of
Commerce’s 	(“Department” 	or 	“Commerce”) 	final 	determination 	in 	the 	eighth
administrative review of the antidumping duty order covering certain frozen warmwater
shrimp 1 from the Socialist Republic of Vietnam (“Vietnam”) for the period of February 1,
2012 through January 31, 2013. 	See Certain Frozen Warmwater Shrimp From the
Socialist Republic of Vietnam, 79 Fed. Reg. 57,047 (Dep’t Commerce Sept. 24, 2014)
(final results of antidumping duty administrative review, 2012–2013) (“Final Results”), as
amended, 79 Fed. Reg. 65,377 (Dep’t Commerce Nov. 4, 2014) (amended final results
of antidumping duty administrative review, 2012–2013) (“Amended Final Results”), and
accompanying Issues and Decision Memorandum for the Final Results of Certain Frozen
1 The merchandise subject to the antidumping duty order include “certain warmwater shrimp and
prawns, whether frozen, wild-caught (ocean harvested) or farm-raised (produced by aquaculture,
head-on or head-off, shell-on or peeled, tail-on or tail-off, deveined or not deveined, cooked or
raw, or otherwise processed in frozen form. . . . The frozen warmwater shrimp and prawn products
included . . . are products which are processed from warmwater shrimp and prawns through
freezing and which are sold in any count size. 	The products . . . may be processed from any
species of warmwater shrimp and prawns.” 	See Certain Frozen Warmwater Shrimp From the
Socialist Republic of Vietnam, 70 Fed. Reg. 5,152, 5,155 (Dep’t Commerce Feb. 1, 2005) (notice
of amended final determination of sales at less than fair value and antidumping duty order).
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Warmwater Shrimp from the Socialist Republic of Vietnam, A-552-802, (Sept. 19, 2014),
available 	at 	http://enforcement.trade.gov/frn/summary/vietnam/2014-22732-1.pdf 	(last
visited Mar. 28, 2016) (“Final I&D Memo”); see also Certain Frozen Warmwater Shrimp
From the Socialist Republic of Vietnam, 70 Fed. Reg. 5,152 (Dep’t Commerce Feb. 1,
2005) (notice of amended final determination of sales at less than fair value and
antidumping duty order) (“ADD Order”).
Plaintiffs Tri Union Frozen Products, Inc., d/b/a Chicken of the Sea Frozen Foods,
a/k/a Empress International Ltd.; Mazzetta Company LLC; and Ore-Cal Corporation
(collectively “Tri Union”), importers of subject merchandise, commenced this action
pursuant to section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a
(2012). 2 	The court consolidated Tri Union’s action with actions filed by Consolidated
Plaintiffs Vietnamese Association of Seafood Exporters and Producers and certain of its
individual 	member 	companies, 	Vietnamese 	producers 	and 	exporters 	of 	subject
merchandise (collectively “VASEP”); Quoc Viet Seaproducts Processing Trading and
Import-Export Co., Ltd. (“Quoc Viet”), a Vietnamese producer and exporter of subject
merchandise; and Ad Hoc Shrimp Trade Action Committee (“Ad Hoc Shrimp”), an
association of domestic producers of warmwater shrimp. See Order, Dec. 15, 2014, ECF
No. 29. In addition to the Rule 56.2 motions for judgment on the agency record filed by
the above named parties, Ad Hoc Shrimp filed a response as a defendant-intervenor in
opposition to the motions filed by Quoc Viet and VASEP. For the reasons set forth below,
2 Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19
of the U.S. Code, 2012 edition, unless specified otherwise.
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Defendant’s request for voluntary remand for Commerce is granted and Commerce’s
Final Results and Amended Final Results are sustained in all other respects.
BACKGROUND
Commerce issued the antidumping duty order covering certain frozen warmwater
shrimp from Vietnam on February 1, 2005. 	See generally ADD Order, 70 Fed. Reg.
5,152. 	On March 29, 2013, pursuant to requests from several companies, including Ad
Hoc Shrimp and Quoc Viet, Commerce initiated the eighth administrative review of the
ADD Order for the period of February 1, 2012 through January 31, 2013. See Initiation
of 	Antidumping 	and 	Countervailing 	Duty 	Administrative 	Reviews 	and 	Request 	for
Revocation in Part, 78 Fed. Reg. 19,197, 19,198–204 (Dep’t Commerce Mar. 29, 2013);
see also Ad Hoc Shrimp Request for Administrative Reviews at 1–2, PD 2 at bar code
3120960-01 (Feb. 26, 2013); Quoc Viet Request for Administrative Review and Request
for Voluntary Treatment at 1, PD 1 at bar code 3117246-01 (Feb. 1, 2013) (“Quoc Viet
Request”).
Due to the large number of companies, Commerce found, pursuant to 19 U.S.C.
§ 1677f-1(c)(2), that it was not practicable to examine all foreign producers and exporters
of subject merchandise and instead selected two companies that, according to U.S.
Customs and Border Protection import data, accounted for the largest U.S. import entry
volume of subject merchandise during the period of review to serve as mandatory
respondents––(1) Minh Phu Group (“MPG”); and (2) Soc Trang Seafood Joint Stock
Company (“Stapimex”). See Selection of Respondents for Individual Examination Memo
at 1–2, 6–8, PD 40 at bar code 3137221-01 (May 24, 2013) (“Respondent Selection
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Mem.”); see also 19 U.S.C. § 1677f-1(c)(2)(B); Decision Memorandum for Preliminary
Results of Antidumping Duty Administrative Review: Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam at 1–3, A-552-802, (Mar. 18, 2014), available at
http://enforcement.trade.gov/frn/summary/vietnam/2014-06397-1.pdf 	(last 	visited 	Mar.
28, 2016) (“Prelim. I&D Memo”). Quoc Viet, as part of its request for Commerce to initiate
the administrative review, requested to be examined as a voluntary respondent if
Commerce decided to limit the review to individually examine particular exporters
pursuant to 19 U.S.C. § 1677f-1(c). 	See Quoc Viet Request at 2. 	Based on the
circumstances of the review, Commerce denied Quoc Viet’s request finding that it would
be unduly burdensome and inhibit the timely completion of the review to individually
examine any additional respondents. 	See Selection of Voluntary Respondent Memo at
1–4, PD 122 at bar code 3146779-01 (July 24, 2013) (“Voluntary Respondent Mem.”).
As 	Commerce 	does 	when 	dealing 	with 	a 	nonmarket 	economy 	(“NME”), 3
Commerce informed interested parties of potential surrogate countries from which it
would consider data to value the factors of production (“FOP”) used to produce the subject
imports. See Surrogate Country List at 3, PD 105 at barcode 3143158-01 (July 2, 2013).
Interested parties submitted comments regarding primary surrogate country selection on
August 30, 2013. See generally Comments on Surrogate Country Selection, PD 133–37
at bar codes 3152484-01–05 (Aug. 30, 2013); ASPA’s Surrogate Country Selection
3 A NME country is “any foreign country that . . . does not operate on market principles of cost or
pricing structures, so that sales of merchandise in such country do not reflect the fair value of the
merchandise.” 19 U.S.C. § 1677(18)(A). Thus, Commerce must “determine the normal value of
the subject merchandise on the basis of the value of the factors of production utilized in producing
the merchandise . . . [together with other costs and expenses].” 19 U.S.C. § 1677b(c)(1).
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Comments, PD 138 at bar code 3152512-01 (Aug. 30, 2013); Surrogate Country
Comments, PD 140 at bar code 3152598-01 (Aug. 30, 2013). 	On October 28, 2013,
interested parties also submitted comments on surrogate values for Commerce to use to
value mandatory respondents’ FOPs. 	See generally Surrogate Value Comments, PD
157–161 at bar codes 3160401-01–05 (Oct. 28, 2013); ASPA’s Comments re Surrogate
Values, PD 155 at bar code 3160197-01 (Oct. 28, 2013).
Commerce published its preliminary results on March 24, 2014. 	See Certain
Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 79 Fed. Reg. 15,941,
15,941 (Dep’t Commerce Mar. 24, 2014) (preliminary results of antidumping duty
administrative review; 2012-2013) (“Prelim. Results”). After considering comments from
interested parties on surrogate country and values, Commerce selected Bangladesh as
the primary surrogate country for purposes of valuing MPG’s and Stapimex’s FOPs for
the preliminary results. 	See Prelim. I&D Memo at 11–15; see also Prelim. Results, 79
Fed. Reg. at 15,941. 	Commerce likewise chose to use Bangladeshi data to value the
primary FOP, raw shrimp. See Prelim. I&D Memo at 14–15.
Additionally, Commerce, pursuant to its practice in administrative reviews, applied
its recently implemented differential pricing analysis to determine whether “compar[ing] . .
. the weighted average of the normal values to the export prices . . . of individual
transactions for comparable merchandise” (“A-T”), see 19 C.F.R. § 351.414(b)(3) (2013), 4
was appropriate to calculate dumping margins for both MPG and Stapimex in the
4 Further citations to Title 19 of the Code of Federal Regulations are to the 2013 edition, unless
otherwise noted.
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preliminary results. 	See Prelim. I&D Memo at 18–19. 	According to the results of its
differential pricing analysis, Commerce found that MPG’s and Stapimex’s U.S. sales
showed a pattern of significant export price differences among purchasers, regions, or
time periods that could not be accounted for by “a comparison of the weighted average
of the normal values with the weighted average of the export prices” (“A-A”). 	See 19
C.F.R. § 351.414(b)(1); Prelim. I&D Memo at 18–19. 	Thus, Commerce preliminarily
determined that application of A-T was appropriate to calculate dumping margins for both
MPG and Stapimex in the preliminary results. 	See Prelim. I&D Memo at 18–19. 	Using
Bangladesh as the primary surrogate country and applying A-T, Commerce preliminarily
determined that the mandatory respondents were selling the subject merchandise at less
than fair value during the period of review and calculated weighted-average dumping
margins of 9.75% for Stapimex, applying A-T to all of its U.S. sales, and 4.98% for MPG,
applying a combination of A-T and A-A, from which Commerce assigned a rate of 6.37%
to separate rate respondents. See Prelim. Results, 79 Fed. Reg. at 15,941–43; see also
Prelim. I&D Memo at 9–10. 	Commerce assigned a Vietnam-wide rate of 25.76% to
respondents who were not entitled to a separate rate. See Prelim. Results, 79 Fed. Reg.
at 15,943; see also Prelim. I&D Memo at 11.
Interested 	parties 	submitted 	case 	briefs 	following 	the 	preliminary 	results
commenting on Commerce’s determinations. 	See generally Quoc Viet and Tri Union
Case Brief, PD 233 at bar code 3204780-01 (May 28, 2014) (“Quoc Viet Case Br.”); Case
Brief on Behalf of the Ad Hoc Shrimp Trade Action Committee, PD 234 at bar code
3204785-01 (May 28, 2014); Minh Phu Group’s Case Brief, PD 236 at bar code 3204803-
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01 (May 28, 2014); Resubmission of Minh Phu Group’s Case Brief, PD 250 at bar code
3218837-01 (July 31, 2014). 5
On September 24, 2014, Commerce published its final results, making no changes
to surrogate values or dumping margin calculations from the preliminary results. 	See
Final Results, 79 Fed. Reg. at 57,048. 	Commerce continued to decline to individually
examine Quoc Viet as a voluntary respondent and reiterated its position that reviewing
Quoc Viet would be unduly burdensome and inhibit timely completion of the review. See
Final I&D Memo at 55–59. Commerce additionally reaffirmed its decision to reject Quoc
Viet’s self-calculated dumping margin submissions and MPG’s case brief for containing
untimely filed new factual information. 	See id. at 59–61. 	Commerce later amended its
final results to correct two ministerial errors pursuant to a request from VASEP. 6 	See
generally Amended Final Results, 79 Fed. Reg. 65,377. 	Thereafter, this consolidated
action ensued challenging Commerce’s determinations in the Final Results.
5 On May 28, 2014, Quoc Viet submitted a case brief joined by Tri Union commenting in part on
Commerce’s rejection of Quoc Viet’s self-calculated antidumping duty margin from prior
submissions as untimely filed new factual information. See generally Quoc Viet Case Brief. On
the same date, MPG submitted its case brief primarily challenging several aspects of Commerce’s
differential pricing analysis, which MPG later resubmitted on July 31, 2014 redacting certain
portions of the brief after Commerce determined that those portions of the case brief included
untimely filed new factual information. See generally Minh Phu Group’s Case Brief; Resubmission
of Minh Phu Group’s Case Brief.
6 Before Commerce was able to correct the ministerial errors and publish the Amended Final
Results, this action had already been filed, vesting the court with jurisdiction and preventing
Commerce from correcting the ministerial errors without leave from the court. See Far Eastern
New Century Corp. v. United States, 36 CIT __, __, 867 F. Supp. 2d 1309, 1311–12 (2012) (citing
Zenith Elecs. Corp. v. United States, 884 F.2d 556, 560–61 (Fed. Cir. 1989)). On October 24,
2014, the court granted Defendant’s motion for leave to permit Commerce to correct ministerial
errors and issue and publish amended final results. See Order, Oct. 24, 2014, ECF No. 13.
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Tri Union and Quoc Viet challenge Commerce’s decision to select Bangladesh as
the primary surrogate country. See Mem. Supp. Mot. Tri Union Frozen Products, Inc. J.
Agency R. 7–12, Mar. 30, 2015, ECF No. 48 (“Tri Union Br.”); Mem. Supp. Mot. Quoc Viet
Seaproducts Processing Trading and Import-Export Co., Ltd. J. Agency R. 25–31, Mar.
30, 2015, ECF No. 46 (“Quoc Viet Br.”). 	Tri Union and Quoc Viet also challenge that
Commerce’s decision to use Bangladeshi data to value all raw shrimp irrespective of
species because Indonesian data is the best available information on the record to value
mandatory respondents’ consumption of white vannamei shrimp. See Tri Union Br. 12–
15; Quoc Viet Br. 31–34.
Quoc Viet separately claims that Commerce’s refusal to individually examine it as
a voluntary respondent is not in accordance with law. 	See Quoc Viet Br. 13–19. 	Quoc
Viet also contends that Commerce unlawfully rejected its submissions following the
preliminary 	results, 	which 	included 	a 	self-calculated 	antidumping 	duty 	margin 	for
containing untimely filed new factual information. 	See id. at 19–25. 	Similarly, VASEP
argues that Commerce acted contrary to its own regulations and abused its discretion by
rejecting MPG’s case brief for containing untimely filed new factual information. 	See
Resp’t Pls. VASEP and Individual VASEP Members’ Br. Supp. Mot. J. Agency R. 10–16,
Mar. 30, 2015, ECF No. 50 (“VASEP Br.”).
VASEP challenges Commerce’s implementation and application of its differential
pricing analysis to evaluate whether application of A-T to calculate the mandatory
respondents’ dumping margins was warranted in the instant review. 	See id. at 16–44.
Quoc Viet has incorporated VASEP’s arguments relating to Commerce’s differential
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pricing analysis by reference. See Quoc Viet Br. 4. Moreover, VASEP claims Commerce
acted against its practice by failing to convert Bangladeshi surrogate values that were
denominated in U.S. dollars to Bangladeshi taka before accounting for inflation using a
Bangladeshi inflator rate. See VASEP Br. 44–45.
Lastly, Ad Hoc Shrimp asserts in its Rule 56.2 motion that Commerce’s use of
Bangladeshi data to value labor renders the final results of the review unsupported by
substantial evidence. See Mot. Ad Hoc Shrimp Trade Action Committee for J. Agency R.
Under USCIT Rule 56.2 15–30, Mar. 30, 2015, ECF No. 49-3 (“Ad Hoc Shrimp Br.”).
Defendant United States (“Defendant”) responds that the court should sustain
Commerce’s determinations in the final results except for Commerce’s decision to use
Bangladeshi labor data, for which Defendant requests a voluntary remand. 	See Def.’s
Resp. Opp’n Pls.’ Mots. J. Agency R. 15–89, Sept. 10, 2015, ECF No. 72 (“Def.’s Resp.”).
Ad Hoc Shrimp similarly responds that the court should sustain Commerce’s final results
except for Commerce’s decision to use Bangladeshi labor data. See Ad Hoc Shrimp Br.
15–30; Def.-Intervenor Ad Hoc Shrimp Trade Action Committee’s Resp. Consolidated
Pls.’ Mots. J. Agency R. Under USCIT Rule 56.2 6–20, Sept. 24, 2015, ECF No. 76.
The court finds that Commerce’s primary surrogate country selection and decision
to use Bangladeshi data to value all raw shrimp consumption are supported by substantial
evidence and in accordance with law. The court also finds that Commerce’s decision to
decline to review Quoc Viet as a voluntary respondent is in accordance with law.
Additionally, Commerce’s rejection of Quoc Viet’s margin calculation submissions and
rejection of MPG’s case brief for containing untimely filed new factual information are
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reasonable. Further, the court sustains Commerce’s application of its differential pricing
analysis and subsequent use of A-T to calculate the mandatory respondents’ antidumping
duty rates. Moreover, the court finds that VASEP has failed to exhaust its administrative
remedies with respect to (1) its challenge to the adequacy of Commerce’s explanation for
changing its practice of using the Nails test to its differential pricing analysis and (2) its
challenge to the manner in which Commerce has accounted for inflation for certain
surrogate values. In these respects, Commerce’s final results are sustained. Finally, the
court grants Defendant’s request for a voluntary remand for Commerce to reconsider its
reliance on Bangladeshi labor data to calculate respondents’ labor FOP. 	The court
reaches its conclusions on the foregoing issues for the reasons discussed below.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28 U.S.C.
§ 1581(c) (2012), 7 which grant the court authority to review actions contesting the final
determination in an administrative review of an antidumping duty order. 	The court will
uphold Commerce’s determination unless it is “unsupported by substantial evidence on
the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
I. 	Commerce’s 	Decision 	to 	Select 	Bangladesh 	as 	the 	Primary Surrogate
Country is Supported by Substantial Evidence and in Accordance With Law
Tri Union and Quoc Viet both challenge Commerce’s selection of Bangladesh as
the primary surrogate country. See Tri Union Br. 7–12; Quoc Viet Br. 25–31. Tri Union
7 Further citations to Title 28 of the U.S. Code are to the 2012 edition.
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and Quoc Viet argue that because the most important FOP of the subject merchandise is
raw shrimp, and Indonesian data provides superior data regarding that FOP relative to
Bangladeshi data, Commerce’s selection of Bangladesh as the primary surrogate country
is unsupported by substantial evidence and not in accordance with law. 	See Tri Union
Br. 7; Quoc Viet Br. 25–26. 	Defendant argues that Commerce reasonably chose
Bangladesh as the primary surrogate country because it offers the “best available
information” and is both at a level of economic development comparable to Vietnam and
a significant producer of comparable merchandise. See Def.’s Resp. 15–22; see also 19
U.S.C. § 1677b(c)(1), (c)(4). Commerce’s decision to select Bangladesh as the primary
surrogate country is supported by substantial evidence and in accordance with law.
In NME antidumping duty proceedings, Commerce generally calculates normal
value “on the basis of the value of the factors of production utilized in producing the
merchandise . . . [together with other costs and expenses].” 	19 U.S.C. § 1677b(c)(1).
Commerce is obligated to value the FOPs used to produce the subject merchandise on
the basis of “the best available information regarding the values of such factors . . . in one
or more market economy countries that are-- (A) at a level of economic development
comparable to that of the [NME] country, and (B) significant producers of comparable
merchandise.” 19 U.S.C. § 1677b(c)(1), (c)(4). While Commerce has broad discretion in
deciding what constitutes the best available information, see QVD Food Co. v. United
States, 658 F.3d 1318, 1323 (Fed. Cir. 2011) (noting the absence of a definition for “best
available information” in the antidumping duty statute), it must ground its selection of the
best available information in the overall purpose of the antidumping duty statute,
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calculating accurate dumping margins. 	See CS Wind Vietnam Co. v. United States, 38
CIT __, __, 971 F. Supp. 2d 1271, 1277 (2014) (citing Rhone Poulenc, Inc. v. United
States, 899 F.2d 1185, 1191 (Fed. Cir. 1990)); see also Parkdale Int’l v. United States,
475 F.3d 1375, 1380 (Fed. Cir. 2007).
Although Commerce may use multiple surrogate countries to calculate normal
value in NME cases, Commerce’s regulatory preference is to “value all factors in a single
surrogate country.” 19 C.F.R. § 351.408(c)(2). To implement this preference, Commerce
selects a primary surrogate country using a process tracking the requirements of 19
U.S.C. § 1677b(c)(1) and (4). See generally Import Admin., U.S. Dep’t Commerce, Non-
Market Economy Surrogate Country Selection Process, Policy Bulletin 04.1 (2004),
available at, http://ia.ita.doc.gov/policy/bull04-1.html (last visited Mar. 28, 2016) (“Policy
Bulletin”). 	Commerce’s Policy Bulletin outlines the following process: (1) the Office of
Policy (“OP”), in response to a written request, assembles “a list of potential surrogate
countries that are at a comparable level of economic development to the NME country”;
(2) 	Commerce 	identifies 	countries 	from 	the 	list 	“with 	producers 	of 	comparable
merchandise”; (3) Commerce “determines whether any of the countries which produce
comparable merchandise are ‘significant’ producers of that comparable merchandise”;
and (4) if more than one country satisfies steps (1)–(3), Commerce will select “the country
with the best factors data.” See generally id.
To 	identify 	potential 	surrogate 	countries 	that 	are 	at 	a 	level 	of 	economic
development 	comparable 	to 	the 	NME 	country 	in 	accordance 	with 	19 	U.S.C.
§ 1677b(c)(4)(A), Commerce requests its OP to create a list of potential surrogate
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countries whose per capita gross national income (“GNI”) 8 fall within a range that the OP
deems comparable to the GNI of the NME. See id. at 2; see also Surrogate Country List
at 1. 	Thereafter, Commerce evaluates which of the potential surrogate countries are
“significant 	producers 	of 	comparable 	merchandise,” 	as 	required 	by 	19 	U.S.C.
§ 1677b(c)(4)(B). 9 	See Policy Bulletin at 2–3. 	If more than one candidate country
remains, Commerce considers each country’s data and selects the country that provides
the best data for the FOPs. See id. at 4.
Commerce is given broad discretion in assessing what data sources it will rely on
in calculating normal value in a NME proceeding given that “best available information” is
not defined by statute. QVD Food Co., 658 F.3d at 1323. To determine what constitutes
the best available information, Commerce evaluates the quality and reliability of data
8 Although Commerce’s regulations provide that it uses per capita gross domestic product (“GDP”)
as the measure of economic comparability, see 19 C.F.R. § 351.408(b), it is Commerce’s practice
to rely on GNI as opposed to GDP because “while the two measures are very similar, per capita
GNI is reported across almost all countries by an authoritative source (the World Bank), and
because the Department believes that the per capita GNI represents the single best measure of
a country’s level of total income and thus level of economic development.” 	Antidumping
Methodologies in Proceedings Involving Non-Market Economy Countries: Surrogate Country
Selection and Separate Rates, 72 Fed. Reg. 13,246, 13,246 n.2 (Dep’t Commerce Mar. 21, 2007)
(request for comment). The court need not analyze the reasonableness of this practice since no
party has challenged the use of GNI to determine economic comparability as contrary to
Commerce’s regulation. 	Nonetheless, 	Commerce’s 	use of 	GNI 	to determine 	economic
comparability has been considered reasonable. See, e.g., Clearon Corp. v. United States, 38 CIT
__, __, Slip Op. 14-88, at *9–10 (July 24, 2014) (finding Commerce’s reliance on GNI reasonable
and in accordance with law).
9 Commerce finds that a country is a significant producer of comparable merchandise if it is a
significant net exporter, i.e., a country whose exports of comparable merchandise exceeds its
imports of the same. 	See Policy Bulletin at 1 n.1; H.R. Rep. No. 100-576, at 590 (1988), as
reprinted in 1988 U.S.C.C.A.N. 1547, 1623. Commerce is not guided by defined parameters in
determining which countries are significant producers of comparable merchandise because the
inquiry is “specific to the merchandise in question” and “the standard . . . will vary from case to
case.” See Policy Bulletin at 3; see also 19 U.S.C. § 1677b(c)(4)(B).
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Consol. Court No. 14-00249 	Page 15
sources from the remaining countries offered to value respondents’ FOPs favoring data
that is: (1) specific to the input in question; (2) representative of a broad market average
of prices; (3) net of taxes and import duties; (4) contemporaneous with the period of
review; and (5) publicly available. See Policy Bulletin at 4. Commerce prefers to select
surrogate value data that satisfy the breadth of these criteria. 	See Final I&D Memo at
48–49. 	Commerce has stated that “data quality is a critical consideration affecting
surrogate country selection” because “a country . . . is not of much use as a primary
surrogate if crucial factor price data from that country are inadequate or unavailable.”
Policy Bulletin at 4. In reviewing Commerce’s determination of what constitutes the best
available information with respect to a particular FOP, it is not for the court to reweigh the
evidence, see Trent Tube Div., Crucible Materials Corp. v. Avesta Sandvik Tube AB, 975
F.2d 807, 815 (Fed. Cir. 1992), but rather, to determine if the evidence relied upon by
Commerce was sufficient to support its determination while considering detracting
evidence. 	See Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938); see also
Suramerica de Aleaciones Laminadas, C.A. v. United States, 44 F.3d 978, 985 (Fed. Cir.
1994).
Here, because Commerce treats Vietnam as a NME, it initiated its surrogate
country selection process pursuant to 19 U.S.C. § 1677b(c) as outlined in its Policy
Bulletin. See Prelim. I&D Memo at 5, 11; see also Certain Frozen Fish Fillets From the
Socialist Republic of Vietnam, 68 Fed. Reg. 4,986, 4,990 (Dep’t Commerce Jan. 31,
2003) (notice of preliminary determination of sales at less than fair value) (stating that
Commerce designated Vietnam as a NME country on November 8, 2002 for purposes of
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Consol. Court No. 14-00249 	Page 16
antidumping and countervailing duty proceedings as of July 1, 2001). 	Commerce
requested that its OP issue a list of potential surrogate countries that are economically
comparable to Vietnam (“OP List”). See Prelim. I&D Memo at 11–12; see also Surrogate
Country List at 1. The OP List, which was placed on the record on July 2, 2013, provided
the following GNI values from 2011 derived from the World Bank’s World Indicators
database, published in 2013, for Vietnam and six countries that Commerce deemed
economically comparable to Vietnam: Vietnam $1,270, Bangladesh $780, Pakistan
$1,120, India $1,420, Nicaragua $1,510, Bolivia $2,020, Philippines $2,210. 	See
Surrogate Country List at 3; see also Prelim. I&D Memo at 12. Commerce stated that it
will rely on data from a country on the OP List unless it determines that “all of these
countries are not significant producers of comparable merchandise, do not provide a
reliable source of publicly available surrogate data or are unsuitable for use for other
reasons, or we find another equally comparable country as an appropriate surrogate.”
Prelim. I&D Memo at 12. 	After reviewing shrimp production information from the Food
and Agriculture Organization of the United Nations Fisheries Statistics, Commerce
concluded that Bangladesh, India, Nicaragua, Pakistan, and the Philippines are all
significant producers of shrimp and that only Bolivia is not a significant producer of shrimp.
See id. at 13; see also ASPA’s Surrogate Country Selection Comments at Attach. 1.
Although Commerce found that five of the six countries on the OP List were economically
comparable to Vietnam and significant producers of comparable merchandise, it only
evaluated data from Bangladesh and India in the preliminary results because no party
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Consol. Court No. 14-00249 	Page 17
had submitted surrogate value data from the other surrogate country candidates on the
OP List. See Prelim. I&D Memo at 13–15.
To determine whether Bangladesh or India offered the best available FOP data,
Commerce largely focused its inquiry on which country offered the best data for raw
shrimp because “the value of the main input, head-on, shell-on shrimp, is a critical FOP
in the dumping calculation as it accounts for a significant percentage of [normal value].”
Id. at 14. The competing sources of data were (1) a study conducted by the Network of
Aquaculture Centres in Asia-Pacific (“NACA”) offering Bangladeshi price data for raw
shrimp, compiled by the United Nation’s Food and Agricultural Organization, 10 and (2) an
article from AQUA Culture Asia Pacific Magazine (“AQUA”) offering raw shrimp price data
from India. 	See id. 	Commerce noted that it placed significant importance on a data
source’s ability to value raw shrimp by count size because “the subject merchandise and
the raw shrimp input are both sold on a count-size specific basis.” 	See id. 	Commerce
found that the Indian AQUA data did not meet Commerce’s data selection criteria
because the data did not cover particular count-size ranges and did not provide how its
pricing information was derived. 	See id. 	By contrast, Commerce found that the
Bangladeshi NACA data did not have these concerns. 	See id. at 14–15. 	Commerce
therefore selected Bangladesh as the primary surrogate country for valuing MPG’s and
Stapimex’s FOPs in the preliminary results because Bangladesh satisfied the surrogate
10 The NACA case study was based upon data collected from three countries––Vietnam,
Bangladesh, and Indonesia. 	See Surrogate Value Comments at Ex. SV-2 at ii. 	However, the
data source was originally submitted to the record by Vietnamese respondents and was offered
as support for Commerce to select Bangladesh as the primary surrogate country in the review.
See Surrogate Value Comments at 6–13.
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Consol. Court No. 14-00249 	Page 18
country criteria and provided the best available information for the most significant FOP,
raw shrimp. See id. at 15.
Commerce reaffirmed its selection of Bangladesh as the primary surrogate country
in the final results and continued to use the Bangladeshi NACA data to value raw shrimp.
See Final I&D Memo at 9–17; see also Final Results, 79 Fed. Reg. at 57,047–48. 	In
reaching its final determination, Commerce defended its selection against arguments that
Commerce was required to select Indonesia rather than Bangladesh as the primary
surrogate country. 11 	Commerce first explained that “there is no substantiated evidence
on this record that Indonesia is at a level of economic development comparable to that of
Vietnam.” 	Final I&D Memo at 10. 	Notwithstanding the inability to measure Indonesia’s
level of economic development, Commerce additionally determined that Bangladeshi
data for raw shrimp is superior to Indonesian data because “the fact that the Indonesian
NACA data contain prices for both species is counterbalanced by the fact that they lack
prices with respect to certain count sizes as compared to the Bangladeshi NACA data.”
Id. at 14. Commerce, moreover, pointed to deficiencies in Indonesian data with regard to
financial ratios and labor, whereas Bangladeshi data offered data for all FOPs except for
shrimp scrap, which it found to be an insignificant component of the normal value. See
11 Following the preliminary results, Quoc Viet filed its case brief, joined by Tri Union, arguing that
Commerce should have instead selected Indonesia as the primary surrogate country, a country
not on the OP List. See Quoc Viet Case Br. at 1–7; see also Final I&D Memo at 5–6, 8. The case
brief did not dispute Commerce’s determinations that Bangladesh is economically comparable to
Vietnam and is a significant producer of shrimp. Instead, Quoc Viet and Tri Union contended that
Commerce should have instead selected Indonesia as the primary surrogate country because
Indonesian NACA data offered values for the two species of shrimp produced and sold by MPG
and Stapimex and therefore is the best available information to value raw shrimp. See Quoc Viet
Case Br. at 1–7.
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Consol. Court No. 14-00249 	Page 19
id. at 16. Thus, “based on the overall consideration of the statutory criteria and the quality
of data,” Commerce continued to find Bangladesh to be the most appropriate choice. Id.
at 17.
Commerce’s surrogate country selection is supported by substantial evidence and
in 	accordance 	with 	law. 	In 	following 	its 	standard 	practice, 	Commerce 	identified
economically 	comparable 	countries 	that 	are 	significant 	producers 	of 	comparable
merchandise. 	Among 	the 	economically 	comparable 	countries 	that 	are 	significant
producers, Commerce selected Bangladesh as the primary surrogate country over the
other candidate countries based on its assessment of the data available on the record.
Given that Commerce’s surrogate country selection was significantly informed by data for
raw shrimp, the reasonableness of Commerce’s surrogate country selection is heavily
dependent upon the reasonableness of Commerce’s assessment of the Bangladeshi
NACA data and the Indonesian NACA data.
The NACA study, which is the source of both the Bangladeshi and Indonesian data
at issue here, was conducted in three countries––Vietnam, Bangladesh, and Indonesia–
–“with the aim of assessing the impact of the 2004 Indian Ocean tsunami and of the
introduction of anti-dumping duties on the shrimp farming sectors of countries in the Asian
region.” 	Surrogate Value Comments at Ex. SV-2 at ii. 	The mandatory respondents
reported sales of up to fifteen count sizes of shrimp. See Final I&D Memo at 14; see also
Analysis for the Final Results for Minh Phu Group at 3, CD 186 at bar code 3229573-01
(Sept. 19, 2014) (“MPG Final Analysis”); Analysis for the Final Results of Soc Trang
Seafood Joint Stock Company at 3, CD 194 at bar code 3229584-01 (Sept. 19, 2014)
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Consol. Court No. 14-00249 	Page 20
(“Stapimex Final Analysis”). 	Count size refers to the size of shrimp, which in this case
has been measured by the number of pieces per kilogram (“Pcs/Kg”). The NACA study
includes data for the following groupings of count sizes, beginning with the largest and
most expensive shrimp: (1) Under 20 Pcs/Kg, i.e., U20; (2) 21–30 Pcs/Kg; (3) 31–44
Pcs/Kg; (4) 45–66 Pcs/Kg; (5) 67–100 Pcs/Kg; (6) Over 100 Pcs/Kg. 	See MPG Final
Analysis at 3; Stapimex Final Analysis at 3. These groupings of count sizes encompass
all of the count sizes of shrimp reported by the mandatory respondents. See MPG Final
Analysis at 3; Stapimex Final Analysis at 3. 	The mandatory respondents also reported
sales of two species of shrimp––penaeus monodon, i.e., black tiger shrimp, and penaeus
vannamei, i.e., white vannamei shrimp. See Final I&D Memo at 14; see also Surrogate
Value Comments at Ex. SV-2 at 3. The NACA study provides data for these two species
of shrimp to the extent that they were commonly traded in the country during the time the
study was conducted.
Both 	the 	Bangladeshi 	NACA 	data 	and 	the 	Indonesian 	NACA 	data 	have
deficiencies in fully accounting for mandatory respondents’ reported count sizes and
species. 	The Indonesian NACA data “has data for four count sizes of black tiger and
three count sizes of vannamei.” Final I&D Memo at 14. Specifically, the Indonesian data
contain data for count sizes (2)–(5) of black tiger and (3)–(5) of white vannamei. 	See
MPG Final Analysis at 3; Stapimex Final Analysis at 3; see also Final I&D Memo at 15
n.47. “In contrast, Bangladesh data has five count sizes for black tiger but no count size
data for vannamei.” 	Final I&D Memo at 14. 	Specifically, the Bangladeshi data contain
data for count sizes (1)–(5) of black tiger shrimp. See MPG Final Analysis at 3; Stapimex
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Consol. Court No. 14-00249 	Page 21
Final Analysis at 3; see also Final I&D Memo at 15 n.47. 	“[T]he Indonesian black tiger
prices cover about 85 percent of respondents’ reported count sizes, while the vannamei
prices cover only between 49 percent and 57 percent of respondents’ reported count
sizes,” and the Bangladeshi NACA data “cover over 94 percent of count sizes of black
tiger shrimp reported by both respondents.” 	Final I&D Memo at 15. 	Neither the
Bangladeshi data nor the Indonesian data contain data for count size (6) regardless of
species, therefore, both data sources are equivalent in that regard. See id. Simply put,
while the Indonesian NACA data is more specific to species by providing independent
pricing information for black tiger shrimp and white vannamei shrimp, the Bangladeshi
NACA data is more specific to count size pricing information.
After considering both data sources, Commerce could not “conclude from the
record that accounting for prices on a species-specific basis is more accurate than
accounting for prices for almost all the count sizes.” Id. at 38. Because the NACA study
indicated that “shrimp price depends on the size and seasonal crop . . . especially for
bigger size [shrimp],” Surrogate Value Comments at Ex. SV-2 at 3, Commerce considered
data that offered prices for a broad range of count sizes, even for one species, to be more
accurate and superior to species-specific data that offered prices for a limited range of
count sizes. 	See Final I&D Memo at 14–15, 38. 	Commerce favored the Bangladeshi
NACA data and ultimately selected Bangladesh as the primary surrogate country because
it found that the Indonesian NACA data, though having data for both species, suffered
from a limited availability of prices for a broad range of count sizes. 	Thus, Commerce
chose to rely upon the Bangladeshi NACA data because “what the data for Bangladesh
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Consol. Court No. 14-00249 	Page 22
lacks in vannamei prices is outweighed by other factors, such as Bangladesh’s economic
comparability to Vietnam . . . and a larger range of pricing for count sizes of black tiger
shrimp, particularly the largest, most expensive shrimp count size.” Id. at 38. Based on
the record before Commerce and its assessment of the available data, Commerce’s
decision to select Bangladesh as the primary surrogate country is reasonable.
Tri Union and Quoc Viet disagree with Commerce’s assessment of the competing
data sources. 	Tri Union and Quoc Viet do not dispute Commerce’s determination that
the Bangladeshi NACA data satisfies Commerce’s criteria for data quality. 	In fact, they
accept that “the Indonesia NACA data and the Bangladeshi NACA data are equally
contemporaneous, publicly available, tax and duty exclusive, and representative of broad
market averages,” given that both sources are derived from the same NACA study. 	Tri
Union Br. 9–10; Quoc Viet Br. 28. 	Instead, they argue that Commerce improperly
prioritized count size over species of shrimp in considering data for purposes of surrogate
country selection. 	Tri Union and Quoc Viet contest Commerce’s determination that
Bangladeshi 	data 	is 	the 	best 	available 	information 	because 	“the 	NACA 	data 	for
Bangladesh reflect prices only for a single species of shrimp: monodon, or black tiger
shrimp” and yet “the respondents in this segment of the proceeding produced and sold
both white vannamei and black tiger shrimp species.” 12 Tri Union Br. 9; Quoc Viet Br. 28.
12 Commerce found that the mandatory respondents each “sold roughly equal quantities of black
tiger and vannamei shrimp during the period of review.” 	Final I&D Memo at 14. 	For MPG,
Commerce found that the quantity of its sales during the period of review comprised of [[
]]. See MPG Final Analysis at 3. For Stapimex, Commerce
found that the quantity of its sales during the period of review comprised of [[
]]. See Stapimex Final Analysis at 3.
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Consol. Court No. 14-00249 	Page 23
“The same NACA study, however, includes Indonesian prices for both black tiger and
white vannamei shrimp raw material.” 	Tri Union Br. 9; Quoc Viet Br. 28; see also
Surrogate Value Comments at Ex. SV-2 at 133–34. Tri Union and Quoc Viet claim that
Commerce’s decision to use the Bangladeshi NACA data is unsupported by substantial
evidence because Commerce “failed to address the record evidence that demonstrated
the significant difference in prices based on shrimp species.” Tri Union Br. 12; Quoc Viet
Br. 29–30.
Commerce selected Bangladesh as the primary surrogate country primarily
because it offered data for raw shrimp on a wider range of count-specific prices. 	See
Final I&D Memo at 13–16. Commerce, in dismissing Indonesia as the primary surrogate
country, made much of the fact that Indonesian data “do not contain as many count-
specific prices in the black tiger shrimp category as that of the Bangladeshi data, which
have a fuller array of prices for black tiger shrimp that would cover more of the
respondents’ reported count sizes.” See id. at 16. Commerce prioritized a country’s data
source’s ability to value a broader range of count sizes of mandatory respondents’
reported raw shrimp consumption rather than its ability to value species specific raw
shrimp. See Prelim. I&D Memo at 14; Final I&D Memo at 13. The significance Commerce
ascribed to count size is supported by record evidence that showed “’shrimp price
depends on the size and seasonal crop . . . especially for bigger size for both [black tiger
shrimp] and [white vannamei shrimp].’” Final I&D Memo at 15 (quoting Surrogate Value
Comments at Ex. SV-2 at 3). Further, “the subject merchandise and the raw shrimp input
are both sold on a count-size specific basis.” Id. at 13. The greater significance given to
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Consol. Court No. 14-00249 	Page 24
count size as opposed to species is reinforced by the fact that out of a total of fourteen
total physical characteristics of the subject merchandise, count size is listed as the third
most important while species is listed as the thirteenth. See id. at 15 n.44; see also Def.’s
Resp. 24. 	Thus, the record supports Commerce’s decision to prefer a data source that
provides values for a broader range of count sizes rather than values for specific species.
Tri Union Br. 11–12; Quoc Viet Br. 30.
Tri Union and Quoc Viet further argue that “in favor of one additional count-size
range in one species, Commerce ignored completely the relevance of species-specificity.”
Tri Union Br. 11; Quoc Viet Br. 29–30. Tri Union and Quoc Viet claim that “none of the
points made by Commerce explain why the use of the Bangladeshi data, which might
require less extrapolation for unavailable count sizes, but are of a different species,
results in more accurate calculations than the Indonesian data, which might require more
extrapolation for unavailable count sizes, but are of an identical species.” 	Tri Union Br.
11–12; Quoc Viet Br. 30.
However, a significant portion of the mandatory respondents’ sales are attributable
to that one missing count size in the Indonesian data. Commerce found
a large portion of both respondents’ sales are for the larger count sizes
which the Indonesian data lacks for both species; . . . the Bangladeshi
NACA data covers the vast majority of both respondents’ count sizes; . . .
both respondents sold roughly equal quantities of black tiger shrimp and
vannamei shrimp during the POR; . . . and . . . a large percentage of both
respondents’ count sizes would not be covered by Indonesian NACA data.
Final I&D Memo at 14 (citing MPG Final Analysis at 3; Stapimex Final Analysis at 3).
Commerce specifically explained that “Indonesian data does not contain prices not only
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Consol. Court No. 14-00249 	Page 25
for the largest count-size of shrimp for both species [, i.e., U20], but also for the second
largest size of the vannamei species [, i.e., 21–30 Pcs/Kg].” Id. at 38. As a result of these
deficiencies, the Indonesian data fails to account for a significant portion of the mandatory
respondents’ sales observations and quantity because the larger count sizes, as
evidenced by the record, were the most expensive and contributed significantly to their
sales. 13 	See id. at 15; see also MPG Final Analysis at 2–3; Stapimex Final Analysis at
2–3. While Tri Union and Quoc Viet present evidence showing price differences among
species, they are unable to controvert record evidence indicating that count size, not
species, is the driving force for the price of raw shrimp.
Tri Union and Quoc Viet additionally argue that Commerce was “[d]istracted by the
non-issue of Indonesia’s economic comparability” in selecting the most appropriate
primary surrogate country. See Tri Union Br. 9; Quoc Viet Br. 27. Commerce defended
its selection in part due to the absence of Indonesia’s GNI on the record. 	The data on
the record appeared to substantiate the claim that Indonesia is a significant producer of
comparable merchandise and contain surrogate values for subject merchandise. 	See
Final I&D Memo at 12–14; see also Surrogate Value Comments at Ex. SV-2. However,
any information regarding Indonesia’s level of economic development was absent from
the record. 	See Final I&D Memo at 10. 	Commerce concluded that “Bangladesh fulfills
the surrogate country selection criteria” and “the record of this case does not contain
13 For MPG, the Indonesian NACA data fails to account for [[ 	]] of its total sales quantity
and [[ 	]] of its total sales observations when categorizing its sales by count size. See MPG
Final Analysis at 2–3. For Stapimex, the Indonesian NACA data fails to account for [[ 	]] of
its total sales quantity and [[ 	]] of its total sales observations when categorizing its sales by
count size. See Stapimex Final Analysis at 2–3.
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Consol. Court No. 14-00249 	Page 26
substantiated evidence regarding Indonesia’s GNI that would enable [Commerce] to
make a finding that Indonesia was at a level of economic development comparable to
Vietnam during this [period of review].” 	Id. at 12. 	Commerce informed parties that it
would “consider other countries on the case record if the record provides . . . adequate
information to evaluate them.” 	Surrogate Country List at 3. 	However, there was
inadequate information on the record to evaluate whether Indonesia is economically
comparable 	to 	Vietnam. 	The 	only 	reference 	to 	Indonesia’s 	level 	of 	economic
development on the record is found in MPG’s rebuttal brief, but that reference was
“unsubstantiated by any record evidence that [Commerce] could rely upon in evaluating
whether Indonesia is at a level of economic development comparable to Vietnam.” Final
I&D Memo at 10; see also Minh Phu Group Rebuttal Case Brief at 3, PD 239 at bar code
3206463-01 (June 2, 2014). If an interested party believed that a country not on the OP
List, in this case Indonesia, is a country that is economically comparable to Vietnam, it
was incumbent on that party to submit that evidence to Commerce so that it could be
placed on the record. See QVD Food Co., 658 F.3d at 1324 (providing that “the burden
of creating an adequate record lies with [interested parties] and not with Commerce”).
Commerce thus selected Bangladesh in part because it was unable to determine whether
Indonesia is economically comparable to Vietnam. Tri Union and Quoc Viet contend that
the absence of Indonesia’s GNI does not forestall Commerce from selecting Indonesia
because 	“Commerce 	already 	has 	acknowledged 	that 	Indonesia 	is 	economically
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Consol. Court No. 14-00249 	Page 27
comparable to Vietnam.” 14 	Reply by Quoc Viet Seaproducts Processing Trading and
Import-Export Co., Ltd.; Tri Union Frozen Products Inc.; Mazzetta Company LLC; and
14 To demonstrate that Commerce has already acknowledged that Indonesia is economically
comparable to Vietnam, Tri Union and Quoc Viet make much of the fact that Commerce selected
Indonesia as the primary surrogate country in the preceding administrative review of certain
frozen warmwater shrimp from Vietnam and in Certain Frozen Fish Fillets From the Socialist
Republic of Vietnam, 79 Fed. Reg. 19,053 (Dep’t Commerce Apr. 7 2014) (final results of
antidumping duty administrative review and new shipper review; 2011–2012). See Tri Union Br.
8; Quoc Viet Br. 26–27. Tri Union and Quoc Viet, however, ignore the fundamental administrative
law principle that the agency must make its determinations based upon the record before it. Each
of Commerce’s proceedings are treated “as independent proceedings with separate records and
which lead to independent determinations.” E.I. DuPont de Nemours & Co. v. United States, 22
CIT 19, 32 (1998). Likewise, judicial review of such determinations must be limited to the record
before the agency that was compiled during that segment of the proceeding, excluding previous
and subsequent proceedings. Cf. QVD Food Co., 658 F. 3d at 1324–25 (providing that “[j]udicial
review of antidumping duty administrative proceedings is normally limited to the record before the
agency in the particular review proceeding at issue and does not extend to subsequent
proceedings”). At oral argument, Tri Union and Quoc Viet argued that Commerce can carry over
its determination from other proceedings that Indonesia is economically comparable to Vietnam
in this review. 	See Oral Arg. 04:26–06:01, Feb. 10, 2016, ECF No. 101. 	However, it is
Commerce’s practice to make a case-by-case determination regarding which countries are
economically comparable to the NME country based upon the record of that proceeding. 	See
generally Policy Bulletin. Therefore, the fact that Commerce selected Indonesia as the primary
surrogate country in those proceedings does not detract from Commerce’s surrogate country
selection here.
Tri Union and Quoc Viet additionally claim that Commerce has confirmed that Indonesia
is economically comparable to Vietnam in the instant review because Commerce relied on
Indonesian data to value a FOP byproduct, shrimp scrap. Commerce claimed that there was a
“need to rely on the scrap value from another country,” Final I&D Memo at 16, but an interested
party timely submitted shrimp scrap data from India and Commerce did not explain why that data
was unusable. See ASPA’s Comments re Surrogate Values at Attach. 7 at Ex. 1. Commerce’s
reliance on Indonesian data to value shrimp scrap may present an arguable issue for that FOP
given Commerce’s inability to evaluate Indonesia’s economic comparability, but Quoc Viet and
Tri Union do not challenge Commerce’s choice in data to value shrimp scrap. Quoc Viet and Tri
Union argue instead that Commerce’s decision to use Indonesian data to value shrimp scrap
undermines its surrogate country selection. 	However, Commerce did not rely on shrimp scrap
data to inform its primary surrogate country selection because Commerce found shrimp scrap to
be a relatively minor FOP. 	See Final I&D Memo at 16; Def.’s Resp. 20; see also MPG Final
Analysis at Ex. 5. 	Commerce principally grounded its surrogate country selection in its
determination that the Bangladeshi NACA data for raw shrimp is superior to the Indonesian NACA
data. Thus, Commerce’s use of Indonesian data to value shrimp scrap does not undermine its
decision to select Bangladesh rather than Indonesia as the primary surrogate country.
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Consol. Court No. 14-00249 	Page 28
Ore-Cal Corporation to Def.’s and Def.-Intervenor’s Mem. Resp. Pls.’ Rule 56.2 Mot. J.
Agency R. 9, Dec. 3, 2015, ECF No. 87 (“Quoc Viet & Tri Union Reply”). 	Despite Tri
Union’s and Quoc Viet’s protests concerning Commerce’s implicit acknowledgment of
Indonesia’s economic comparability, Commerce’s reliance on Indonesian data to value
shrimp scrap does not serve to establish that Indonesia is at a level of economic
development comparable to Vietnam. 	Commerce reasonably weighed the record data
along with the other surrogate country criteria to support its selection of Bangladesh as
the primary surrogate country. Commerce found that Bangladeshi data was superior to
Indonesian data and despite both countries being significant producers of merchandise,
Commerce could only weigh evidence regarding the relative economic comparability of
Bangladesh and India. 	Therefore, the court cannot say that Commerce’s choice of
Bangladesh as the primary surrogate country was unreasonable.
Because Commerce reasonably determined that Bangladesh offered the best
available 	information, 	Commerce’s 	decision 	to 	select 	Bangladesh 	as 	the 	primary
surrogate country is supported by substantial evidence and in accordance with law.
II. 	Commerce’s Decision to Use Bangladeshi Data to Value All Raw Shrimp is
Supported by Substantial Evidence and in Accordance With Law
Tri Union and Quoc Viet also challenge Commerce’s decision to use Bangladeshi
data to value raw shrimp to the extent that Commerce relied upon that data to value
mandatory respondents’ consumption of white vannamei shrimp. See Tri Union Br. 12–
15; Quoc Viet Br. 31–34. Tri Union and Quoc Viet argue that Indonesian NACA data is
the best available information to value white vannamei shrimp, especially for the count
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Consol. Court No. 14-00249 	Page 29
sizes 	the 	data 	offered, 	and 	Commerce 	should 	use 	that 	data 	to 	supplement 	the
Bangladeshi NACA data for white vannamei shrimp consumption because “black tiger
shrimp is valued [[ 	]] than white vannamei shrimp of identical sizes.” Tri
Union Br. 14–15; Quoc Viet Br. 33. Tri Union and Quoc Viet assert that “[b]ecause there
are no available Bangladeshi white vannamei surrogate values on the record, substantial
evidence required that even if Commerce relied on Bangladesh as the primary surrogate
country, then Commerce nonetheless should have used the Indonesian white vannamei
surrogate values to value the respondents’ vannamei factors of production.” 	Tri Union
Br. 14; Quoc Viet Br. 33–34. Thus, they argue Commerce was required to cure whatever
deficiencies the Bangladeshi data has regarding white vannamei shrimp with the
Indonesian species-specific data and that Commerce on remand should either “use the
available Indonesian white vannamei shrimp pricing data to value the respondents’
consumption of white vannamei shrimp or demonstrate why using the Bangladeshi data
results in more accurate calculations.” 	Tri Union Br. 15; Quoc Viet Br. 34. 	Defendant
maintains that Commerce’s reliance on Bangladeshi NACA data for valuing all raw shrimp
is supported by substantial evidence because “count-size, not species specification, is a
crucial factor in determining surrogate values” and Tri Union and Quoc Viet fail to
demonstrate 	that 	using 	a 	species-specific 	data 	source 	leads 	to 	more 	accurate
calculations. 	See Def.’s Resp. 26–27. 	Commerce’s decision to use the Bangladeshi
NACA data to value all raw shrimp, including white vannamei shrimp, is supported by
substantial evidence and in accordance with law.
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As previously stated, Commerce shall, to the extent possible, value FOPs based
on the best available information from market economy countries that are economically
comparable to the NME country and significant producers of comparable merchandise.
See 19 U.S.C. § 1677b(c)(1), (c)(4). 	In selecting the best available information,
Commerce evaluates the quality and reliability of data sources from the remaining
countries offered to value respondents’ FOPs favoring data that is: (1) specific to the input
in question; (2) representative of a broad market average of prices; (3) net of taxes and
import duties; (4) contemporaneous with the period of review; and (5) publicly available.
See Policy Bulletin at 4.
While Commerce determined that the Bangladeshi NACA data is the best available
information, the Indonesian NACA data made available independent pricing information
for three count sizes of white vannamei shrimp that the Bangladeshi NACA data lacked.
Notwithstanding the availability of white vannamei shrimp data, Commerce chose not to
supplement the Bangladeshi NACA data with the Indonesian white vannamei shrimp
data. 	In making its decision, Commerce (1) relied upon the absence of any record
evidence regarding Indonesia’s level of economic development, (2) incorporated its
reasons for determining that the Bangladeshi NACA data is superior to the Indonesian
NACA data to value raw shrimp, (3) cited its practice and regulatory preference for valuing
all FOPs in a single surrogate country, see 19 C.F.R. § 351.408(c)(2), and (4) explained
that supplementing the Bangladeshi NACA data with the Indonesian NACA data for white
vannamei shrimp would not lead to more accurate calculations and would, in fact,
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Consol. Court No. 14-00249 	Page 31
increase the potential for distortive and inaccurate calculations. See Final I&D Memo at
37–38.
Commerce’s decision here is reasonable. Commerce relied upon its determination
that the Bangladeshi NACA data is the best available information to value mandatory
respondents’ consumption of raw shrimp. The Indonesian NACA data “has data for four
count sizes of black tiger and three count sizes of vannamei.” 	Id. at 14. 	“In contrast,
Bangladesh data has five count sizes for black tiger but no count size data for vannamei.”
Id. Because record evidence informed Commerce that count size, not species, outweighs
other considerations for valuing raw shrimp, Commerce chose to use the Bangladeshi
NACA data because the Bangladeshi NACA data offers a broad range of count-size
specific pricing information while the Indonesian NACA data is lacking in that regard. In
making its determination, Commerce explained that it did not make its “determination on
a single sub-factor relevant to the data at issue, but rather examined each set of data.”
Id. at 14. 	Thus, Commerce determined that the Indonesian NACA data may be more
specific with respect to species, but the Bangladeshi NACA data is more specific with
respect to the FOP as a whole. Once Commerce determined that the Bangladeshi NACA
data is the best available information, it was reasonable for Commerce to choose to rely
on the single data source that is more specific for the FOP in its entirety rather than
integrate another data source from another country that is relatively more specific with
regard to a component of the FOP.
In the absence of any authority requiring it to use data from multiple countries to
value shrimp, Commerce reasonably chose to value shrimp with data from a single
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Consol. Court No. 14-00249 	Page 32
country. 15 Commerce explained that “interested parties have not demonstrated that using
data with prices for only a limited range of count sizes, albeit for two species, would result
in a more accurate margin calculation than using the prices available for almost all count
sizes albeit for only one of the species produced and sold by the mandatory respondents.”
Id. at 38. Commerce expressed concerns regarding the several calculations necessary
to ascribe Indonesia’s pricing structure to Bangladesh to account for species. Commerce
explained that “[u]sing this data would . . . require even more adjustment than required
for the Bangladeshi data to match to the mandatory respondents’ numerous count size
ranges of shrimp input,” Id. at 15, and that “after remedying the relative lack of count size
value data in the data for Indonesia, any improvement in inaccuracy would likely be
outweighed, or at least counterbalanced by, the accuracy loss inherent in this multistep
estimation.” Id. at 38. Commerce was already forced to undergo additional calculations
to derive the surrogate values for count size (6), regardless of which data source it chose
to use. To use the Indonesian NACA data to value mandatory respondents’ sales of white
vannamei shrimp would also require additional calculations on the other end of the
15 Commerce also cited to its practice that it “normally will value all factors in a single surrogate
country.” Final I&D Memo at 37; 19 C.F.R. § 351.408(c)(2). Here, however, Commerce’s primary
surrogate country selection cannot lend support to Commerce’s choice of data for raw shrimp,
nor Commerce’s refusal to supplement Bangladeshi data with Indonesian data, because the data
for raw shrimp was a primary consideration in the surrogate country selection process. See Final
I&D Memo at 13–16. While the court ultimately affirms Commerce’s decision to use Bangladeshi
NACA data to value all raw shrimp, the court notes that it does not reach its decision based on
Commerce’s reliance on this regulatory preference. Commerce need not rely on its preference
to value all FOPs in the primary surrogate country here because its determination that the
Bangladeshi NACA data is the best available information to value raw shrimp is supported by
substantial evidence and in accordance with law. 	Further, its explanation for its refusal to
supplement the Bangladeshi data is reasonable.
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spectrum to extrapolate the prices for the largest and second largest count size for white
vannamei shrimp. See id. Commerce decided that it would be more accurate to only rely
upon the Bangladeshi NACA data to value raw shrimp because “extensive extrapolation
from smaller to larger count-sizes would have required assumptions and undermined any
potential benefits of species-specific data.” Def.’s Resp. 26; see also Final I&D Memo at
38. 	Thus, Commerce found that using the Indonesian NACA data to supplement the
Bangladeshi NACA data would not lead to more accurate margin calculations because
the Indonesian NACA data is lacking, even for white vannamei shrimp information.
Commerce’s reasons for refusing to incorporate the Indonesian NACA data in its
calculations suffice to demonstrate that its decision is supported by substantial evidence
and in accordance with law. 	While the Indonesian NACA data provides for species-
specific data where Bangladeshi NACA data does not, that fact alone does not render
Commerce’s exclusive use of the Bangladeshi NACA data unsupported by substantial
evidence. There is no authority that requires Commerce to further manipulate the data it
determines is the best available information. 	Commerce’s determination is further
supported by the concern that using two data sources from two countries would potentially
lead to distortive and inaccurate calculations. 	Taken together, Commerce’s decision to
use the Bangladeshi NACA data to value all raw shrimp, including white vannamei shrimp,
is reasonable.
In response to Commerce’s preference to value all FOPs in a single surrogate
country, Tri Union and Quoc Viet argue that “where information from the primary
surrogate country is either unavailable or unreliable, Commerce will rely on information
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Consol. Court No. 14-00249 	Page 34
from a secondary surrogate country.” Tri Union Br. 14; Quoc Viet Br. 32. Without citing
to any authority, they assert that “[b]ecause there are no available Bangladeshi white
vannamei surrogate values on the record, substantial evidence required that . . .
Commerce . . . use[] the Indonesian white vannamei surrogate values to value the
respondents’ vannamei factors of production.” 	Tri Union Br. 14; Quoc Viet Br. 33. 	The
only support for their argument is a reference to when Commerce had chosen Indonesia
as the primary surrogate country in a previous review, but chose to rely on data from
another country to value a particular FOP. Tri Union Br. 14 n. 27; Quoc Viet Br. 32–33 n.
71. When a primary surrogate country does not have usable data for a particular FOP,
Commerce does look to other countries to find the best available information to value that
FOP. However, when Commerce has determined information from the primary surrogate
country to be the best available information for a FOP, it does not follow that, absent
extraordinary circumstances, Commerce is additionally required to use information from
a second country to manipulate and cure any and every deficiency in the primary
surrogate country data.
Lastly, Tri Union and Quoc Viet argue that “Commerce is simply wrong to have
claimed . . . that interested parties had not demonstrated that the use of Indonesian white
shrimp surrogate values would result in more accurate antidumping margin calculations.”
Tri Union Br. 14; Quoc Viet Br. 33. They argue “Commerce failed to address the record
evidence demonstrating that there were significant difference in prices based on shrimp
species.” Tri Union Br. 15; Quoc Viet Br. 33. However, Commerce specifically addressed
the argument that accounting for the price disparity among species using the Indonesian
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NACA data would lead to more accurate results. While Tri Union and Quoc Viet contend
that the price of shrimp differs depending on the species, “[t]here is no indication on the
record that shrimp prices in Bangladesh are species-driven.” Final I&D Memo at 38. In
fact, Commerce found that “record evidence shows that ‘shrimp price depends on the
size and seasonal crop . . . especially for bigger size {shrimp}.’” 	Id. (quoting Surrogate
Value Comments at Ex. SV-2). Commerce found “no record evidence to suggest that the
shrimp price structure between Indonesian black tiger prices and vannamei prices would
be the same or similar to that in Bangladesh.” Id. Commerce concluded that “ascrib[ing]
Indonesia’s pricing structure to Bangladesh would . . . require several successive
calculations . . . [and] any improvement in accuracy would likely be outweighed, or at least
counterbalanced by, the accuracy loss inherent in this multistep estimation.” 	Id.
Commerce was not concerned with the complexity of such calculations, but rather, it was
concerned with the extensive extrapolation necessary to derive pricing information for the
two largest count sizes of white vannamei shrimp. 16 See id.
Therefore, Tri Union and Quoc Viet are unable to demonstrate that Commerce’s
refusal to supplement the Bangladeshi NACA data with the Indonesian NACA white
vannamei shrimp data is unreasonable.
16 Tri Union and Quoc Viet additionally reiterate their objection that Commerce cannot rely on the
absence of GNI data because Commerce has already implicitly confirmed that Indonesia is
economically comparable to Vietnam through its use of Indonesian data to value shrimp scrap.
See Tri Union Br. 13–14; Quoc Viet Br. 32. 	Commerce’s determination here, however, is
supported on grounds other than the absence of Indonesia’s GNI data on the record.
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III. 	Commerce’s Decision Not to Select Quoc Viet as a Voluntary Respondent is
Reasonable
Quoc Viet argues Commerce’s refusal to individually examine it and calculate its
own antidumping duty rate as a voluntary respondent is contrary to law. See Quoc Viet
Br. 13–19. 	Quoc Viet contends that “Commerce failed to apply the appropriate legal
standard under 19 U.S.C. § 1677m in determining whether individual examination of Quoc
Viet as a voluntary respondent would have been unduly burdensome and would have
inhibited the timely completion of the review.” Id. at 14. Defendant dismisses Quoc Viet’s
argument as erroneous, insisting that Commerce correctly determined not to grant Quoc
Viet’s voluntary respondent requests. See Def.’s Resp. 28–38. Defendant maintains that
“examination of an additional company, beyond the mandatory respondents already
selected, would have been unduly burdensome and inhibited the timely completion of the
review.” Id. at 28. The court finds that Commerce’s decision not to individually examine
Quoc Viet is reasonable.
In an administrative review of an antidumping duty order, Commerce must
calculate individual antidumping duty rates for each known exporter or producer of subject
merchandise covered by the review, i.e., respondents. See 19 U.S.C. §§ 1675(a)(1)(B),
1677f-1(c)(1). The statute therefore requires that Commerce collect data with respect to
sales of subject merchandise from each respondent and calculate individual rates.
However, the statute provides for an exception to Commerce’s requirement to individually
examine and assign antidumping duty rates for all respondents:
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(2) Exception
If it is not practicable to make individual weighted average dumping margin
determinations under paragraph (1) because of the large number of
exporters or producers involved in the investigation or review, [Commerce]
may determine the weighted average dumping margins for a reasonable
number of exporters or producers by limiting its examination to--
(A) a sample of exporters, producers, or types of products that
is statistically valid based on the information available to
[Commerce] at the time of selection, or
(B) exporters and producers accounting for the largest volume
of the subject merchandise from the exporting country that
can be reasonably examined.
19 U.S.C. § 1677f-1(c)(2). 	Thus, if there is a large number of exporters or producers
covered in an administrative review, Commerce may limit the review to individually
examine and “determine the weighted average dumping margins for a reasonable number
of exporters or producers.” Id.
When Commerce invokes this exception, as it has done so here, it typically limits
the review to individually examine “exporters and producers accounting for the largest
volume of the subject merchandise from the exporting country” according to U.S.
Customs and Border Protection import data. See Proposed Methodology for Respondent
Selection in Antidumping Proceedings, 75 Fed. Reg. 78,678, 78,678 (Dep’t Commerce
Dec. 16, 2010) (request for comment) (stating that Commerce has used this option in
“virtually every one of its proceedings”); see also 19 U.S.C. § 1677f-1(c)(2)(B). 	Those
exporters 	and 	producers 	that 	account 	for 	the 	largest 	import 	volume 	of 	subject
merchandise are then selected as mandatory respondents. 	Commerce collects sales
data from these mandatory respondents by issuing questionnaires and individually
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Consol. Court No. 14-00249 	Page 38
examines each of the mandatory respondents to calculate their respective antidumping
duty rates.
If not initially selected as a mandatory respondent, a respondent may request to
be individually examined as a voluntary respondent pursuant to 19 U.S.C. § 1677m(a). 17
A voluntary respondent is individually examined like a mandatory respondent and is given
an antidumping duty rate based on its own sales of subject merchandise rather than
assigned an antidumping duty rate based on the weighted average rates calculated for
the 	mandatory 	respondents. 	However, 	Commerce 	may 	nevertheless 	refuse 	to
individually examine the respondent as a voluntary respondent even if the respondent
otherwise satisfies the statutory requirements for voluntary respondent treatment. 	The
relevant language of the governing statute provides:
17 In limited reviews, respondents other than mandatory respondents generally are not individually
examined but remain subject to the review. By application, Commerce assigns these respondents
a separate rate by calculating “the weighted average of the estimated weighted average dumping
margins 	established 	for 	exporters 	and 	producers 	individually 	investigated.” 	19 	U.S.C.
§ 1673d(c)(5)(A). However, in NME antidumping duty proceedings, Commerce, through practice,
has implemented a rebuttable presumption that all respondents within the NME country are
subject to government control. See Antidumping Methodologies in Proceedings Involving Non-
Market Economy Countries: Surrogate Country Selection and Separate Rates, 72 Fed. Reg.
13,246, 13,247–48 (Dep’t Commerce Mar. 21, 2007) (request for comment) (“Methodologies in
NME Proceedings”); Huaiyin Foreign Trade Corp. v. United States, 322 F.3d 1369, 1372 (Fed.
Cir. 2003). In this context, a respondent is entitled to a separate rate if it can establish the absence
of both de jure and de facto government control. 	See Methodologies in NME Proceedings, 72
Fed. Reg. at 13,247–48; Huaiyin Foreign Trade Corp., 322 F.3d at 1372; see also Sparklers from
the People’s Republic of China, 56 Fed. Reg. 20,588 (May 6, 1991) (final determination of sales
at less than fair value), as modified by Silicon Carbide from the People’s Republic of China, 59
Fed. Reg. 22,585 (May 2, 1994) (final determination of sales at less than fair value) (outlining the
test Commerce applies to assess a company’s independence from government control).
Respondents who are unable to rebut the presumption of government control receive the NME
country-wide rate. See Sigma Corp. v. United States, 117 F.3d 1401, 1405 (Fed. Cir. 1997); see
also 19 C.F.R. § 351.107(d).
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(a) Treatment of voluntary responses in countervailing or antidumping duty
investigations and reviews
In any . . . review under section 1675(a) of this title in which [Commerce]
has, under section 1677f-1(c)(2) of this title . . . , limited the number of
exporters or producers examined, . . . [Commerce] shall establish . . . an
individual 	weighted 	average 	dumping 	margin 	for 	any 	exporter 	or
producer not initially selected for individual examination under such
sections who submits to [Commerce] the information requested from
exporters or producers selected for examination, if--
(1) such information is so submitted by the date specified--
(A) 	for exporters and producers that were
initially selected for examination, or
(B) 	for 	the 	foreign 	government, 	in 	a
countervailing duty case where [Commerce] has
determined a single country-wide rate; and
(2) the number of exporters or producers who have submitted
such information is not so large that individual examination of
such exporters or producers would be unduly burdensome
and inhibit the timely completion of the investigation.
19 U.S.C. § 1677m(a). 	Thus, in limited reviews, Commerce must individually examine
and 	calculate 	an 	antidumping 	duty 	rate 	for 	any 	respondent 	that 	timely 	provides
Commerce with the information requested from the mandatory respondents, so long as
the number of potential voluntary respondents “is not so large that individual examination
of such exporters or producers would be unduly burdensome and inhibit the timely
completion of the investigation.” Id.
Here, Quoc Viet requested to be examined as a voluntary respondent as part of
its request for Commerce to initiate an administrative review of the ADD Order. See Quoc
Viet Request at 1. 	On May 24, 2013, Commerce limited the number of respondents to
be examined in this review, but deferred deciding whether to additionally review voluntary
respondents until Commerce received the necessary information from all companies
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wishing to be considered as a voluntary respondent. See Respondent Selection Mem. at
8. Quoc Viet timely furnished Commerce with its responses to the questionnaires issued
to the mandatory respondents. See generally Quoc Viet Voluntary Section A Response,
PD 84–86 at bar code 3140545-01 (June 14, 2013); Quoc Viet Voluntary Section C
Response, PD 113–14 at bar code 3145339-01 (Jul. 15, 2013); Quoc Viet Voluntary
Section D Response, PD 117–18 at bar code 3146254-01 (Jul. 22, 2013). Quoc Viet was
the only company that had submitted such information and requested to be individually
examined as a voluntary respondent. See Voluntary Respondent Mem. at 1. However,
Commerce 	ultimately 	declined 	to 	individually 	examine 	Quoc 	Viet 	as 	a 	voluntary
respondent. 	See Final I&D Memo at 56–59; Voluntary Respondent Mem. at 1–4.
Commerce’s 	decision 	that 	additional 	examination 	of 	Quoc 	Viet 	would 	be 	unduly
burdensome and inhibit timely completion of the review is reasonable.
While Congress seems to have keyed the need to examine a voluntary respondent
based on the number of voluntary respondents in a given instance, it is unclear from the
statutory language whether Commerce, in determining if it would be unduly burdened,
must consider the number of respondents seeking individual examination as voluntary
respondents in isolation or in the context of the review. The Statement of Administrative
Action, which was submitted contemporaneously with the implementation of the Uruguay
Round Agreements Act and is instructive in discerning Congress’s intent, suggests that
Commerce 	may, 	under 	certain 	circumstances, 	refuse 	to 	examine 	any 	voluntary
respondents regardless of the number of voluntary respondent requests alone. Congress
provided that
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[a]lthough Commerce . . . will not discourage voluntary responses and will
endeavor to investigate all firms that voluntarily provide timely responses in
the form required, in certain cases (including cases involving the same
product 	from 	multiple 	countries) 	where 	the 	number 	of 	exporters 	or
producers is particularly high, Commerce may decline to analyze voluntary
responses because it would be unduly burdensome and would preclude the
completion of timely investigations or reviews.
Statement of Administrative Action Accompanying the Uruguay Round Agreements Act,
H.R. Doc. No. 103-316, vol. 1, at 873 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4201
(“SAA”). 	By recognizing certain cases where Commerce may decline to examine
voluntary respondents based on considerations other than the number of requests, the
SAA supports the view that the additional burden may be assessed in light of the
complexity of the review.
Though Commerce only received a single voluntary respondent request from Quoc
Viet, 	the 	court 	cannot 	say 	that 	Commerce’s 	determination 	in 	this 	instance 	is
unreasonable. Congress has not expressed a baseline threshold of voluntary respondent
requests for Commerce to claim it would be unduly burdened. 	Treating the standard
under 19 U.S.C. § 1677m(a) as such would be inappropriate given that what constitutes
an undue burden varies from case to case based on Commerce’s assessment of its
resources. As stated above, Congress envisioned circumstances where Commerce can
refuse to examine any voluntary respondents regardless of the number of voluntary
respondent requests. 	See id. 	As a result, it may be that the burdens implicated with
reviewing a single potential voluntary respondent in combination with other significant
administrative 	burdens 	could 	render 	individual 	review 	of 	that 	respondent 	unduly
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Consol. Court No. 14-00249 	Page 42
burdensome. 	Commerce’s decision to decline to individually examine Quoc Viet is
reasonable in light of the significant burdens it faced in this review.
Commerce has adequately explained why the significant burdens that the agency
faced in this case made it such that even examining one additional respondent, Quoc
Viet, would be unduly burdensome and inhibit timely completion of the review. Commerce
recognized that 19 U.S.C. § 1677m(a)(2) is a separate standard requiring it to make a
separate determination from 19 U.S.C. § 1677f-1(c)(2). 	See Final I&D Memo at 57.
Commerce then identified numerous administrative burdens particular to this case that
led to its decision. Commerce first pointed to the burden of reviewing a new mandatory
respondent. See Voluntary Respondent Mem. at 2–3. Commerce explained that
in the seventh administrative review, the companies we selected for
individual examination . . . had both been previously examined by the
Department. 	However, in the instant newly initiated eighth administrative
review, the Department selected in addition to Minh Phu Group, a company
the Department has never individually examined: Soc Trang Seafood Joint
Stock 	Company 	(“Stapimex”), 	a 	company 	with 	multiple 	facilities 	for
production, sales, and/or shrimp farming examination, which we anticipate
will raise complex issues relating to vertical integration and corporate
structure. . . . [B]ecause we have never individually examined Stapimex’s
corporate structure, sales, and factors of production, the additional time and
resources that we will need to devote to becoming familiar with this
company render the review of a third company in this review unduly
burdensome and would inhibit the timely completion of the review.
Id. (internal footnote omitted). Commerce also added that “while the Minh Phu Group has
been reviewed in most administrative reviews, as one of the largest exporters from
Vietnam, its sales and factors of production processes are extremely complex and require
significant time to thoroughly review, analyze and generate supplemental questionnaires
and then to create the margin calculation programming for such an intricate company.”
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Id. at 3. Commerce also identified the added burden caused by the number of separate
rate applicants. 	See id. 	Because a respondent is entitled to a separate rate in a NME
antidumping proceeding only if it can rebut the presumption of government control,
Antidumping Methodologies in Proceedings Involving Non-Market Economy Countries:
Surrogate Country Selection and Separate Rates, 72 Fed. Reg. 13,246, 13,247–48 (Dep’t
Commerce Mar. 21, 2007) (request for comment), Commerce anticipated the need to
expend additional resources to address “the added burden of issuing supplemental
questionnaires to any number of the companies seeking a separate rate.” 	Voluntary
Respondent 	Mem. 	at 	3. 	Further, 	Commerce 	intended 	to 	conduct 	two 	changed
circumstances reviews concurrently with the instant review. 	See id. 	Commerce
explained that “[i]n this case, of the 31 separate rate applicants for which we received
certification or applications, the Department has notified two of the companies requesting
a separate rate that they are required to undergo a changed circumstances review
because both companies reported changes in corporate and legal structure in the instant
review period.” 18 	Id. 	Commerce also noted that reviewing a voluntary respondent
required Commerce to issue multiple rounds of questionnaires and extensive examination
to accurately calculate a dumping margin, which Commerce believed impossible given its
limited resources. 	See id. at 4. 	In sum, Commerce determined that “[b]ecause the
Department 	intends 	to 	conduct 	the 	changed 	circumstances 	reviews, 	along 	with
18 Although Commerce ultimately conducted a single changed circumstance review, see Certain
Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 79 Fed. Reg. 11,411 (Dep’t
Commerce, Feb. 28, 2014) (final results of changed circumstances review), Commerce
anticipated that it needed to conduct two changed circumstance reviews at the time it declined to
review Quoc Viet as a voluntary respondent.
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conducting the administrative review (which is expected to raise complex issues with
respect to the mandatory respondents), with the added burden of issuing supplemental
questionnaires to any number of the companies seeking a separate rate, an examination
of an additional voluntary respondent would be unduly burdensome and inhibit timely
completion of this administrative review.” Id. at 3.
In the final results, Commerce maintained that reviewing Quoc Viet in addition to
the mandatory respondents would be unduly burdensome and inhibit timely completion
of the review. 	See Final I&D Memo at 56–59. 	Commerce based its decision on the
following:
(1) [T]he complexity and details of the original and supplemental responses
by MPG and Stapimex, (2) the large number of FOPs and other line items
that required SVs, (3) the large number of separate-rate requests we
received and analyzed, (4) conducting a changed circumstance review, and
(5) the continuing level of workloads for other cases throughout this review
as we described in the Respondent Selection Memo.
Id. at 58. Commerce also noted that it had already fully extended the deadline for issuing
its preliminary results. See id. Specifically addressing examining Quoc Viet, Commerce
explained that its
past experience 	with this 	case 	demonstrates 	that examining another
company such as Quoc Viet would have required that the Department allot
additional time and assign additional staff to analyze its responses (in
addition to the staff completing its other casework within the statutory
deadlines) at a level beyond the capacity of the Department’s resources.
Id. at 59. 	Thus, Commerce based its determination on the burdens implicated in
examining Quoc Viet in particular combined with the significant burdens Commerce faced
in this review. Commerce explained why the sum of its administrative burdens created a
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situation where the burden of reviewing a single voluntary respondent was one too many.
Given the circumstances, Commerce reasonably concluded that “[a]ccepting Quoc Viet
as a voluntary respondent, therefore, would have been unduly burdensome and inhibited
. . . timely completion of the final results in this administrative review.” Id.
Quoc Viet, however, contends that “Commerce’s normal workload – even if
significant – is not a sufficient basis for denying the statutorily mandatory voluntary
respondent 	treatment 	for 	companies 	that 	otherwise 	satisfy 	the 	standards 	of 	the
antidumping statute, and that Commerce, either must review a voluntary respondent or
demonstrate that the burden . . . exceeds that presented in the typical antidumping review
case.” Quoc Viet Br. 13–14. For support, Quoc Viet relies upon Grobest & I-Mei Industrial
(Vietnam) Co. v. United States, 36 CIT __, 815 F. Supp. 2d 1342 (2012) (“Grobest I”);
Grobest & I-Mei Indus. (Vietnam) Co. v. United States, 36 CIT __, 853 F. Supp. 2d 1352
(2012) (“Grobest II”); and Ad Hoc Shrimp Trade Action Comm. v. United States, 37 CIT
__, 925 F. Supp. 2d 1367 (2013) (“Ad Hoc”). 	However, the court’s decision that
Commerce reasonably declined to individually examine Quoc Viet stands even in the face
of these decisions.
The 	court 	in 	Grobest 	I 	made 	clear 	that 	Commerce 	cannot 	rely 	upon 	its
determination 	to 	limit 	its 	examination 	of 	respondents 	pursuant 	to 	19 	U.S.C.
§ 	1677f-1(c)(2) 	in 	deciding 	whether 	to 	decline 	to 	individually 	examine 	voluntary
respondents pursuant to 19 U.S.C. § 1677m(a). 	In other words, the court in Grobest I
explained that 19 U.S.C. § 1677f-1(c)(2) and 19 U.S.C. § 1677m(a) required Commerce
to make two separate determinations because the two statutory standards differ in that
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19 U.S.C. § 1677m(a) “sets a higher threshold of agency burden before the requirement
of individual review can be avoided.” 	See Grobest I, 36 CIT at __, 815 F. Supp. 2d at
1363. 	Commerce did not err in this regard and, as explained above, made an
independent determination addressing the separate and distinct standard in 19 U.S.C.
§ 1677m(a). See Voluntary Respondent Mem. at 2–4; Final I&D Memo at 56–59.
Upon review of Commerce’s remand redetermination following Grobest I, the court
in Grobest II found Commerce did not satisfy the standard under 19 U.S.C. § 1677m(a)
when it relied upon “the same burdens that occur in every review . . . , [which in effect]
sets the bar for undue burden too low because it would make individual review of
voluntary respondents in any typical antidumping or countervailing duty review unduly
burdensome, and such a determination renders § 1677m(a) meaningless.” 	Grobest II,
36 CIT at __, 853 F. Supp. 2d at 1364–65. Ad Hoc involved a separate proceeding where
the court reaffirmed Grobest II’s analysis of Commerce’s obligation under the statutory
standard, finding that Commerce’s reason for declining to review a respondent seeking
individual review was “merely the usual burden of conducting a thorough review, which is
insufficient to satisfy § 1677m(a)’s standard of rejecting a voluntary respondent request.”
Ad Hoc, 37 CIT at __, 925 F. Supp. 2d at 1371–72. However, Commerce’s determination
here has given effect to 19 U.S.C. § 1677m(a) and has not rendered the statutory
provision meaningless. 	The court in Grobest II feared that accepting Commerce’s
explanation in that case would have eviscerated Commerce’s statutory obligation to
individually examine voluntary respondents. 	Such concerns are not present here
because Commerce fully assessed its available resources and determined that it was
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impossible to allocate additional resources to examine Quoc Viet in light of Commerce’s
significant workload in the review. Commerce spelled out each and every burden specific
to this case that caused it to believe that it would be unduly burdensome to additionally
review Quoc Viet in this case.
Quoc Viet relatedly claims that each of the grounds stated by Commerce is
insufficient to amount to an undue burden. See Quoc Viet Br. 15–18. It may be that the
grounds stated by Commerce in declining to review Quoc Viet are insufficient if viewed in
isolation, however, it is reasonable for Commerce to conclude that these burdens taken
together amount to an undue burden impeding its ability to timely complete the review.
Quoc Viet additionally asserts that “these facts might be relevant to determine whether to
limit the number of mandatory respondents under 19 U.S.C. § 1677f-1(c)(2), but the
standard for denying review to voluntary respondents is different.” Id. at 18. As explained
above, the inquiry posed by 19 U.S.C. § 1677m(a) invites Commerce to assess whether
the burden resulting from individually examining voluntary respondents would be undue
or prevent timely completion of the review by considering the number of voluntary
respondent requests combined with the administrative burdens already present in the
proceeding. Thus, Quoc Viet is correct in that the standard under 19 U.S.C. § 1677m(a)
is distinct from 19 U.S.C. § 1677f-1(c)(2), however, Commerce’s explanation sufficiently
explains why additionally examining Quoc Viet amounted to an undue burden in this case.
Therefore, Commerce’s decision to decline to review Quoc Viet as a voluntary
respondent is reasonable.
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IV. 	Commerce’s Rejection of Quoc Viet’s Margin Calculation Submissions and
MPG’s Case Brief is Reasonable and in Accordance With Law
Both Quoc Viet and VASEP make separate claims that Commerce unlawfully
rejected certain submissions for containing what it determined to be untimely filed new
factual information. See Quoc Viet Br. 19–25; VASEP Br. 10–16.
A. 	Quoc Viet’s Margin Calculation Submissions
Quoc Viet argues that Commerce erred in rejecting Quoc Viet’s self-calculated
antidumping duty margin from its March 28, April 7, and April 17, 2014 submissions as
untimely filed new factual information because the underlying data for the calculations
was already a part of the administrative record. See Quoc Viet Br. 20. Defendant argues
that Commerce’s determination was appropriate because Quoc Viet’s margin calculation
produced new data that was not previously on the record and was submitted well after
the deadline for new factual information. See Def.’s Resp. 38–45. Commerce’s rejection
of Quoc Viet’s submissions for containing untimely filed new factual information is
reasonable and in accordance with law.
Commerce’s regulations specify deadlines for when parties must submit factual
information. For reviews, any submission of factual information is due no later than “140
days after the last day of the anniversary month” of the antidumping duty order. 19 C.F.R.
§ 351.301(b)(2). 19 Commerce’s regulations also provide that “factual information” means
19 The regulation in effect at the time of the proceeding provided the following time limit regarding
the submission of factual information in an administrative review:
(footnote continued)
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“(i) [i]nitial and supplemental questionnaire responses; (ii) [d]ata or statements of fact in
support of allegations; (iii) [o]ther data or statements of facts; and (iv) [d]ocumentary
evidence.” 20 19 C.F.R. § 351.102(b)(21). Commerce’s interpretation of what constitutes
(b) Time limits in general. Except as provided in paragraphs (c) and (d) of this
section and § 351.302, a submission of factual information is due no later than:
. . .
(2) For the final results of an administrative review, 140 days after
the 	last 	day 	of 	the 	anniversary 	month, 	except 	that 	factual
information requested by the verifying officials from a person
normally will be due no later than seven days after the date on which
the verification of that person is completed;
19 C.F.R. § 351.301(b)(2).
20 Commerce subsequently modified the definition of factual information in its regulations:
(21) Factual information. “Factual information” means:
(i) Evidence, including statements of fact, documents, and data submitted either in
response to initial and supplemental questionnaires, or, to rebut, clarify, or correct
such evidence submitted by any other interested party;
(ii) Evidence, including statements of fact, documents, and data submitted either
in support of allegations, or, to rebut, clarify, or correct such evidence submitted
by any other interested party;
(iii) Publicly available information submitted to value factors under § 351.408(c) or
to measure the adequacy of remuneration under § 351.511(a)(2), or, to rebut,
clarify, or correct such publicly available information submitted by any other
interested party;
(iv) Evidence, including statements of fact, documents and data placed on the
record by the Department, or, evidence submitted by any interested party to rebut,
clarify, or correct such evidence placed on the record by the Department; and
(v) Evidence, including statements of fact, documents, and data, other than factual
information described in paragraphs (b)(21)(i)–(iv) of this section, in addition to
evidence submitted by any other interested party to rebut, clarify, or correct such
evidence.
(footnote continued)
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factual information in a given case is upheld unless an “‘alternative reading is compelled
by the regulation’s plain language or by other indications of . . . .intent at the time of the
regulation’s promulgation.’” Thomas Jefferson Univ. v. Shalala, 512 U.S. 504, 512 (1994)
(quoting Gardebring v. Jenkins, 485 U.S. 415, 430 (1988)); Torrington Co. v. United
States, 156 F.3d 1361, 1363–64 (Fed. Cir. 1998).
Notwithstanding 19 C.F.R. § 351.301(b)(2), interested parties are permitted to
submit factual information to rebut factual information submitted by another interested
party “at any time prior to the deadline,” or, “[i]f factual information is submitted less than
10 days before, on, or after (normally only with the Department’s permission) the
application deadline for submission of such factual information, . . . no later than 10 days
after the date such factual information is served on the interested party.” See 19 C.F.R.
§ 351.301(c)(1). When Commerce rejects factual information as untimely, it will not use
such factual information in making any determination, nor will the official record include
the filed document containing such factual information except for the sole purpose of
“documenting the basis for rejecting the document.” 19 C.F.R. § 351.104(a)(2).
Following the preliminary results, Quoc Viet submitted additional requests to be
examined as a voluntary respondent on March 28, 2014 and April 7, 2014, both of which
included a self-calculated antidumping duty margin based on its own sales of subject
merchandise. See generally Quoc Viet Second Request for Individual Antidumping Duty
19 C.F.R. § 351.102(b)(21) (2015). However, this definition for factual information only applies to
proceedings initiated on or after May 10, 2013. See Definition of Factual Information and Time
Limits for Submission of Factual Information, 78 Fed. Reg. 21,246, 21,246 (Dep’t Commerce Apr.
10, 2013). Because the instant review was commenced on March 29, 2013, the former version
of the definition for factual information governs this case.
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Rate and Margin Calculation Submission, CD 177 at bar code 3191334-01 (Mar. 28,
2014); Reiteration of Request for an Individual Antidumping Duty Rate for Quoc Viet, PD
212 at bar code 3194291-01 (Apr. 7, 2014). Commerce rejected Quoc Viet’s submissions
because the self-calculated antidumping duty margin included untimely filed new factual
information that was not on the administrative record and gave Quoc Viet an opportunity
to redact the new factual information and resubmit the submission. 	See Rejection of
March 28, 2014 and April 7, 2014 Submissions, PD 215 at bar code 3196019-01 (Apr.
16, 2014). 	In its resubmission, Quoc Viet noted that Commerce did not indicate what
information was considered new factual information and redacted certain outputs in its
margin calculation that it perceived might be considered new factual information. 	See
Quoc Viet Resubmission of Filings Deemed to Contain New Factual Information, PD 217
at bar code 3196261-01 (Apr. 17, 2014). However, Commerce continued to find that the
resubmission contained untimely new factual information even with the redactions and
rejected the resubmitted margin calculations. See Rejection of April 17, 2014 Submission
at 1, PD 224 at bar code 3199060-01 (Apr. 30, 2014). 21
Commerce reasonably rejected Quoc Viet’s submissions for containing untimely
filed new factual information. With respect to the March 28 and April 7, 2014 submissions,
21 Because Commerce inadvertently did not retain copies of the March 28, 2014 and April 7, 2014
submissions as required by 19 C.F.R. § 351.104(a)(2)(ii)(A), Quoc Viet resubmitted the
documents on May 5, 2014 pursuant to Commerce’s request and Commerce rejected that
submission for containing untimely filed new factual information, retaining the rejected documents
to demonstrate the basis for the rejection. 	See Rejection of New Information from Quoc Viet
Seaproducts Processing Trading and Import-Export Co., Ltd. at 1, PD 227 at bar code 3199892-
01 (May 6, 2014); see also Quoc Viet Resubmission of Filings Deemed to Contain New Factual
Information at 1–2, CD 180 at bar code 3199718-01 (May 5, 2014).
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Commerce explained that “the submissions contained the new factual information
consisting of margin calculations that [Quoc Viet] generated, which [Quoc Viet] submitted
after the deadline for new factual information.” Rejection of March 28, 2014 and April 7,
2014 Submissions. In its subsequent rejection of Quoc Viet’s April 17, 2014 submission,
Commerce further explained that the submission contained new factual information
“which is both untimely and irrelevant.” Rejection of April 17, 2014 Submission at 1. Quoc
Viet’s submissions were untimely for purposes of submitting new factual information
because it made its submissions after the deadline for such information, July 18, 2013.
See Final I&D Memo at 60; see also 19 C.F.R. § 351.301(b)(2). 	Commerce therefore
reasonably determined Quoc Viet’s margin calculation submissions constituted data
under 19 C.F.R. § 351.102(b)(21)(ii) that was not previously on the record and rejected
the untimely submissions.
Quoc Viet disagrees that its margin calculation is new factual information because
“all of the data incorporated into the SAS antidumping calculation (i.e., Quoc Viet’s
Section C sales data, Quoc Viet’s Section D factors of production data, and Commerce’s
surrogate value data) . . . were already part of the administrative record.” Quoc Viet Br.
20. 	Quoc Viet argues that Commerce’s position is absurd because it would mean that
“while the numbers ‘2’ and ‘3’ might be on the record, the result of adding those two
numbers (i.e., 5) or of multiplying them (i.e., 6) constitutes ‘new’ factual information.” Id.
However, Commerce found that Quoc Viet’s submissions contained more than merely
data already on the record but also “the outcome of running a SAS program is data . . .
which had not previously existed on the record.” Final I&D Memo at 60. Other than the
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information from Quoc Viet’s questionnaire responses, which were timely submitted and
on the record, Quoc Viet’s submissions included “1) a SAS program which contained
company-specific 	adjustments rendering it different than the other SAS programs
currently on the record; 2) a SAS log, and; 3) SAS output different than the SAS logs and
outputs currently on the record.” Rejection of April 17, 2014 Submission at 1. Quoc Viet’s
submissions manipulated the data and calculation program. 	Thus, the output of Quoc
Viet’s margin calculations no longer remained the sum or product of information that was
already on the record as Quoc Viet contends.
Quoc 	Viet 	relatedly 	claims 	Commerce’s 	interpretation 	of 	19 	C.F.R.
§ 351.102(b)(21) is irreconcilable with 19 U.S.C. § 1677m(g) because “[i]f the results of
an antidumping margin calculation comprise new factual information, then every single
final results of review where Commerce releases a SAS antidumping margin calculation
disclosure would constitute factual information.” Quoc Viet Br. 21. Quoc Viet argues that
if “the outcome of running a SAS program is data within the meaning of 19 C.F.R.
§ 351.102(b)(21), and constitutes factual information, then Commerce should have
allowed parties to comment on its own Final Results margin output calculations and
programs under 19 U.S.C. § 1677m(g).” Id. at 22.
However, 	Commerce’s 	interpretation 	of 	its 	regulatory 	definition 	for 	factual
information does not conflict with the statutory provision that requires Commerce to afford
interested parties an opportunity to comment on information obtained by Commerce.
Section 1677m(g) provides that
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[i]nformation that is submitted on a timely basis to [Commerce] . . . during
the course of a proceeding . . . shall be subject to comment by other parties
. . . . [Commerce] . . . , before making a final determination . . . shall cease
collecting information and shall provide the parties with a final opportunity
to comment on the information obtained by [Commerce] . . . upon which the
parties have not previously had an opportunity to comment. 	Comments
containing new factual information shall be disregarded.
19 U.S.C. § 1677m(g). 	The statute requires that Commerce, “before making a final
determination . . . shall cease collecting information and shall provide the parties with a
final opportunity to comment on the information obtained by [Commerce] . . . upon which
the parties have not previously had an opportunity to comment.” 19 U.S.C. § 1677m(g).
When Commerce calculates margins “it generates information; it does not collect
information.” 	Def.’s Resp. 41. 	Quoc Viet argues that such a position creates the
conundrum that “when conducting the same SAS operations, Commerce does not
generate new facts, but Quoc Viet does.” 	Quoc Viet & Tri Union Reply 7. 	Quoc Viet’s
argument fails to recognize that the statute requires Commerce to provide an opportunity
to comment only on information it collects or obtains externally, not findings that it makes
or generates internally. Quoc Viet’s margin calculation submitted to Commerce triggers
this 	requirement, 	but 	Commerce’s 	margin 	calculation 	does 	not. 	Commerce’s
interpretation of factual information does not lead to the conclusion that its final
determination is subject to comment pursuant to 19 U.S.C. § 1677m(g).
Quoc Viet alternatively argues that its margin calculation submissions were
intended to rebut Commerce’s findings in its preliminary results. See Quoc Viet Br. 22–
25. 	However, Commerce’s preliminary determination does not contain new factual
information, but rather, contains its findings based on information that has been timely
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submitted and placed on the record. 	Additionally, Commerce’s regulation permits the
submission 	of 	new 	factual 	information 	to 	rebut 	information 	submitted 	by 	another
interested party, not Commerce. 	See 19 C.F.R. § 351.301(c)(1) (providing that “[a]ny
interested party may submit factual information to rebut, clarify, or correct factual
information submitted by any other interested party”); see also Final I&D Memo at 61.
“Interested party” does not include Commerce. 	See 19 C.F.R. § 351.102(b)(29).
Commerce is separately listed as “Administering authority” under 19 U.S.C. § 1677(1)
and “Department” under 19 C.F.R. § 351.102(b)(15). 	Moreover, Quoc Viet’s margin
calculations do not rebut the margins calculated for the mandatory respondents, but
instead advance an alternative margin which Quoc Viet asserts accurately represents its
pricing behavior. Commerce stated that it “does not provide producers or exporters with
authority to calculate or determine their own dumping margins based on information that
is not being examined by the Department” and, as a result, Quoc Viet’s margin calculation
submission is not relevant for determining its dumping margin. Rejection of April 17, 2014
Submission at 1. 	Quoc Viet’s submissions could not be characterized as rebutting
Commerce’s 	findings 	in 	the 	preliminary 	results 	because 	Commerce 	preliminarily
determined the mandatory respondents’ antidumping duty rates, not Quoc Viet’s.
Thus, Quoc Viet is unable to persuade the court that Commerce unlawfully rejected
its submissions as untimely filed new factual information.
B. 	MPG’s Case Brief
VASEP argues that Commerce acted contrary to its regulations by rejecting MPG’s
case brief because “the citations and quotations that Commerce forced MPG to redact in
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its case brief were not ‘factual information’ as defined by regulation, and therefore
Commerce had no basis to force their redaction.” VASEP Br. 11. Defendant argues that
Commerce properly determined that MPG’s case brief contained untimely filed new
factual information because it included statements of fact and documentary evidence
challenging Commerce’s differential pricing analysis and was submitted after the deadline
for new factual information. 	See Def.’s Resp. 45–51. 	Commerce reasonably rejected
MPG’s case brief for containing untimely filed new factual information in accordance with
its regulations.
As stated above, Commerce’s regulations specify that factual information during
an administrative review must be submitted “140 days after the last day of the anniversary
month” of the antidumping duty order. 	19 C.F.R. § 351.301(b)(2). 	Commerce’s
regulations 	define 	“factual 	information” 	to 	include 	“(i) 	[i]nitial 	and 	supplemental
questionnaire responses; (ii) [d]ata or statements of fact in support of allegations; (iii)
[o]ther data or statements of facts; and (iv) [d]ocumentary evidence.” 	19 C.F.R.
§ 351.102(b)(21). Commerce’s interpretation of what constitutes factual information in a
given case is upheld unless an “‘alternative reading is compelled by the regulation’s plain
language or by other indications of . . . .intent at the time of the regulation’s promulgation.’”
Thomas Jefferson Univ., 512 U.S. at 512 (quoting Gardebring, 485 U.S. at 430);
Torrington Co., 156 F.3d at 1363–64.
On May 28, 2014, MPG submitted its case brief challenging several aspects of
Commerce’s differential pricing analysis. 	See generally Minh Phu Group’s Case Brief.
Commerce subsequently rejected MPG’s case brief because it included citations to and
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quotations from sources that were not on the administrative record, which Commerce
considered untimely filed new factual information. 	See Rejection of New Information in
Case Brief at 1, PD 248 at bar code 3218413-01 (July 29, 2014). 	MPG resubmitted its
case brief making the demanded redactions under protest and requested that Commerce
reconsider its overly broad stance on what constitutes factual information since the
rejected information relates to mathematical logic rather than to the particular facts
concerning the respondents. 	See generally Resubmission of Minh Phu Group’s Case
Brief.
Commerce’s rejection of MPG’s case brief for containing untimely filed new factual
information is reasonable and in accordance with law. Commerce rejected MPG’s case
brief for containing “references [to] academic studies, textbooks, and website information
referencing statistical analysis.” 	See Rejection of New Information in Case Brief at 1.
Specifically, the case brief included “cites to an academic paper presented at the Annual
Conference of British Educational Research Association, cites to a textbook from a
professor at Rice University, and a ‘Wiki’ website, which are not on the record of this
administrative review.” Rejection of New Information in Case Brief at 1. The information
was not previously submitted to the record and was provided to further support MPG’s
challenge to Commerce’s differential pricing analysis. 	The materials contain expert
analysis that “clearly assumes the weight of evidence and, as such, amounts to [d]ata or
statements of fact in support of allegations, i.e., factual information.” See PSC VSMPO-
Avisma Corp. v. United States, 688 F.3d 751, 760–61 (Fed. Cir. 2012) (internal quotations
omitted). Categorizing these academic materials as factual information is not inconsistent
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with the regulatory definition for such information. Thus, Commerce’s determination that
the information constituted untimely filed new factual information is reasonable.
VASEP appears to concede that the rejected information includes facts, but
nonetheless contends that the information does not fall within the meaning of “factual
information” under 19 C.F.R. § 351.102(b)(21) because the context of the regulatory
deadlines to submit such information “indicates that ‘factual information’ is intended to
reference those facts that touch upon or involve the facts of the respondents themselves.”
VASEP Br. 12. To support its contention, VASEP relies upon Commerce’s revision to its
definition for factual information, arguing that the purpose of a regulatory deadline to
submit factual information is “to avoid circumstances where ‘it is too late to adequately
examine, analyze, conduct follow-up inquiries regarding and, if necessary, verify the
information.’” See id. at 12–13 (quoting Definition of Factual Information and Time Limits
for Submission of Factual Information, 78 Fed. Reg. 21,246, 21,247 (Dep’t Commerce
Apr. 10, 2013) (“Definition Revision”)). VASEP claims that because “‘[t]he administrative
record of a given segment is intended to reflect the specific facts for the period under
review,”’ the information from MPG’s case brief is not factual information as it does “not
have any specific bearing on the respondents’ own facts, whether in or outside the period
of review.” Id. at 13 (quoting Definition Revision, 78 Fed. Reg. at 21,247). Therefore, it
is VASEP’s position that the information Commerce demanded MPG to redact is not
factual information because the information does “not have any specific bearing on the
respondents’ own facts” and therefore has “nothing to do with the specific facts for the
period of review.” Id.
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VASEP’s argument is without merit. As an initial matter, VASEP erroneously relies
on information relating to revisions to the definition for factual information in Commerce’s
regulations. 	Although Commerce’s intent in promulgating a regulation is a relevant
consideration in reviewing Commerce’s actions pursuant to that regulation, see Thomas
Jefferson Univ., 512 U.S. at 512, Commerce’s intent in revising its definition for factual
information is irrelevant in reviewing Commerce’s determination that MPG’s case brief
included untimely filed new factual information according to the definition that governed
this review. 	The revised definition for factual information only applies to proceedings
initiated on or after May 10, 2013. 	See Definition Revision, 78 Fed. Reg. at 21,246.
Because the instant review was commenced on March 29, 2013, the former definition for
factual information governs this case and the court’s review. 	Therefore, VASEP’s
argument that Commerce intended to limit factual information to information relating to
the respondents is unpersuasive.
VASEP relatedly argues that the rejected information does not present the type of
concern for which Commerce has established these deadlines because the information
“at issue concerned facts of mathematical logic of a generally known character, the
substance of which is not in serious dispute.” VASEP Br. 13. Again, VASEP appears to
concede that the information at issue is factual information. 	More importantly, whether
the information is generally known or not in serious dispute is irrelevant in determining
whether the information is factual information for purposes of 19 C.F.R. § 351.102(b)(21)
and 19 C.F.R. § 351.301. Case briefs are limited to written arguments and a party cannot
rely upon new factual information in making its arguments, even if it claims that the
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information is generally known or not in serious dispute. 	See 19 C.F.R. 351.309(c). 	If
MPG wished to rely on academic studies, textbooks, and website information referencing
statistical analysis in making its arguments before Commerce, MPG was required to
adhere to the specified regulatory deadlines for submitting factual information. 	MPG is
not excused from complying with Commerce’s procedural requirements even if the
rejected information concerns facts of mathematical logic that are not in dispute.
VASEP next argues that the academic materials that MPG referenced and cited in
its case brief were indirectly relied upon by Commerce in its references to its previous
determination in an administrative review of certain activated carbon from the People’s
Republic of China. See VASEP Br. 13–14; see also Final I&D Memo at 30 n.111 (citing
and quoting Certain Activated Carbon from the People’s Republic of China: Issues and
Decision Memorandum for the Final Results of the Fifth Antidumping Duty Administrative
Review 	at 	25, 	A-570-904 	(Nov. 	20, 	2013), 	available 	at
http://enforcement.trade.gov/frn/summary/prc/2013-28359-1.pdf 	(last 	visited 	Mar. 	28,
2016) (“Activated Carbon”)). 	However, Commerce relied upon Activated Carbon to the
extent that it informed Commerce’s most current practice of using its differential pricing
analysis. Commerce’s practice was informed in Activated Carbon by the very information
at issue here, but that information was timely submitted in that proceeding. Commerce’s
reliance upon previous determinations that have helped develop its practice of using its
differential pricing analysis does not, as a result, incorporate the sources or information
from the record of that proceeding to the instant review. The fact remains that the sources
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that MPG cited and referenced were not timely submitted here, which is precisely why
Commerce rejected certain portions of MPG’s case brief.
VASEP asserts that Commerce previously accepted the information at issue as
part of MPG’s pre-preliminary comments, which “suggests Commerce did not consider
them in the same light as ‘factual information’ defined by 19 C.F.R. § 351.102(b)(21).”
See VASEP Br. 14; see also Vietnam Respondents’ Comments for the Preliminary
Results at 16–18 n.14–22, PD 180 at bar code 3173719-01 (Jan. 14, 2014) (“VASEP Pre-
Prelim. Comments”). VASEP’s assertion is incorrect. Though Commerce did not formally
reject MPG’s pre-preliminary comments, Commerce expressly refused to consider the
citations and references to the academic materials contained in MPG’s pre-preliminary
comments “[b]ecause these sources are not on the record.” 	Prelim. I&D Memo at 17.
Therefore, Commerce’s decision that the information from MPG’s case brief constituted
factual 	information 	is 	not 	contradicted 	by 	its 	treatment 	of 	MPG’s 	pre-preliminary
comments.
VASEP additionally claims that Commerce abused its discretion by rejecting
MPG’s case brief because “[i]t cannot rely upon factual information in support of its
position as articulated in the Activated Carbon Memo and then cause that factual
information to be redacted when relied upon by MPG.” 	VASEP Br. 15. 	VASEP argues
that Commerce abused its discretion by not extending the deadline to submit new factual
information for good cause. 	See id. 	Commerce may, for good cause, extend the time
limit for submitting factual information unless expressly prohibited by statute. 	See 19
C.F.R. § 351.302(b). 	Commerce may extend the deadline “based upon its own
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determination that there is good cause to do so or where an interested party shows good
cause for such extension.” 	Antidumping Duties; Countervailing Duties, 62 Fed. Reg.
27,296, 	27,337 	(Dep’t 	Commerce 	May 	19, 	1997) 	(final 	rule). 	In 	its 	request for
reconsideration, MPG requested that Commerce “reconsider its decision and accept as
filed the Minh Phu Group’s original case brief.” Resubmission of Minh Phu Group’s Case
Brief at 3. MPG did not request an extension. See generally id. Without a request for an
extension, VASEP’s argument must be taken as asserting that Commerce’s failure to
extend the deadline for interested parties to submit factual information on its own
amounted to an abuse of discretion.
Commerce cannot be expected to extend its deadline in this case without a request
from MPG. 	Regarding its differential pricing analysis, Commerce stated that “[f]urther
developments and changes, along with further refinements are expected in the context of
its proceedings based upon an examination of the facts and the parties’ comments in
each case.” 	Prelim. I&D Memo at 16. 	Commerce has announced to the public that it
plans to further refine its approach as it gains more and more experience. See Differential
Pricing Analysis: Request for Comments, 79 Fed. Reg. 26,720, 26,722 (Dep’t Commerce
May 9, 2014) (“DPA Comment Request”). 	However, Commerce’s willingness to further
develop its differential pricing analysis is not an invitation to submit factual information at
any time in the proceeding and does not mean that the deadlines to submit factual
information to the record no longer apply. Interested parties were afforded an opportunity
to submit factual information to the record and comment on Commerce’s practice during
the proceeding. While Commerce has made clear that it is open to comments during the
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proceeding to inform its practice, it is not an abuse of discretion for Commerce to require
that those comments be made in accordance with Commerce’s regulatory procedures.
Again, MPG could have requested an extension of the time limits, but failed to do so. It
is hard to think of a reason why Commerce should be expected to sua sponte grant an
extension of its deadlines given this context when MPG itself did not ask for one.
VASEP also claims that Commerce abused its discretion because “[i]f the object
of submitted information is to inform a practice, the substance of which is not known until
after the preliminary results are issued, and where Commerce has stated that it is in a
constant state of development based on comments received not only in the instant
proceeding but also external proceedings, the parties must have the ability to defend their
interests.” VASEP Br. 15–16. MPG was entitled to “‘notice and a meaningful opportunity
to be heard.’” 	PSC VSMPO-Avisma Corp., 688 F.3d at 761–62 (quoting LaChance v.
Erickson, 522 U.S. 262, 266 (1998)). 	However, VASEP’s assertion that MPG had no
notice of Commerce’s practice prior to the preliminary results and therefore had no
opportunity to comment cannot withstand scrutiny. VASEP itself admits that MPG relied
upon the academic paper presented at the Annual Conference of British Educational
Research Association as well as an excerpt from textbook authored by a professor at
Rice University in its pre-preliminary comments. 	See VASEP Br. 14; see also VASEP
Pre-Prelim. Comments at 16–18 n.14–22. Commerce did not preclude MPG from relying
upon academic support to present its arguments. Commerce merely required that MPG
follow the regulatory requirements for submitting factual information to the administrative
record. 	If MPG was unable to timely submit the information it wished to rely upon, it
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should have demonstrated to Commerce that there was good cause to extend the
deadline to submit such information. 	Therefore, Commerce’s decision to reject MPG’s
case brief for containing untimely filed new factual information is reasonable and not an
abuse of discretion. 22
V. 	Differential Pricing Analysis
VASEP 	raises 	several 	issues 	regarding 	Commerce’s 	recently 	implemented
differential pricing analysis and its subsequent decision to apply A-T in this review. See
VASEP Br. 26–44. VASEP challenges Commerce’s use of its differential pricing analysis
in the final results claiming that Commerce failed to adequately explain (1) its change in
practice from the Nails test to the differential pricing analysis that was applied here, see
id. at 26–29; (2) specific aspects of its differential pricing analysis relating to its use of the
Cohen’s d test, see id. at 29–44; and (3) why A-T is applied to all sales if a respondent’s
differentially priced sales account for 66% or more of the total value of its domestic sales
and to the differentially priced sales if those sales account for between 33% and 66% of
the total value of the respondent’s domestic sales. See id. at 33–37. Defendant argues
22 On December 3, 2015, VASEP moved the court to take judicial notice of information from three
sources in further support of its Rule 56.2 motion for judgment on the agency record, including
two of the sources that MPG made references to in its case brief that Commerce had rejected as
untimely filed new factual information. See generally Consolidated Pls.’ Mot. for Judicial Notice,
Dec. 3, 2015, ECF No. 90. 	The court denied VASEP’s motion for judicial notice based on the
standard under Rule 201 of the Federal Rules of Evidence and foundational principles of judicial
review of an agency’s determination. See Tri Union Frozen Prods. Inc. v. United States, 40 CIT
__, __, Slip Op. 16–20, at *4–12 (Mar. 7, 2016). Because the court denied VASEP’s motion for
judicial notice and sustains Commerce’s decision to reject MPG’s case brief, the court has not
considered the information from these sources that VASEP at times relies upon in making its
arguments relating to Commerce’s differential pricing analysis. See Camp v. Pitts, 411 U.S. 138,
142 (1973) (“[T]he focal point for judicial review should be the administrative record already in
existence, not some new record made initially in the reviewing court.”).
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in response that (1) VASEP has failed to exhaust its administrative remedies regarding
Commerce’s change in practice from the Nails test to the differential pricing analysis, see
Def.’s Resp. 58–62, (2) Commerce’s differential pricing analysis is permissible under the
statute and is otherwise reasonable, see id. at 51–58, 62–73, 77–85, and (3) Commerce
reasonably applied A-T after determining that the mandatory respondents’ sales revealed
a pattern of export prices that differ significantly among purchasers, regions, and periods
of time. 	See id. at 73–77. 	Each of VASEP’s arguments with respect to Commerce’s
differential pricing analysis are unavailing. 	Commerce’s determination is supported by
substantial evidence and in accordance with law.
A. 	VASEP is Precluded From Arguing That Commerce Inadequately
Explained its Change in Practice From the Nails Test to the Differential
Pricing Analysis
VASEP claims that Commerce has inadequately explained its shift from its
previous 	targeted 	dumping 	analysis 	to 	the 	current 	differential 	pricing 	analysis. 23
23 Commerce’s methods for determining whether application of A-T is appropriate to uncover
dumping has evolved over time. See generally Certain Pasta From Italy, 61 Fed. Reg. 30,326
(Dep’t Commerce June 14, 1996) (notice of final determination of sales at less than fair value),
as amended, 61 Fed. Reg. 38,547 (Dep’t Commerce June 14, 1996), as amended 61 Fed. Reg.
42,231 (Dep’t Commerce Aug. 14, 1996); Borden, Inc. v. United States, 23 CIT 372 (1999), rev’d
on other grounds, 7 Fed. Appx. 938 (Fed. Cir. 2001); Coated Free Sheet Paper from the Republic
of Korea, 72 Fed. Reg. 60,630 (Dep’t Commerce Oct. 25, 2007) (notice of final determination of
sales at less than fair value). In 2008, Commerce began using what is now known as the Nails
test in investigations to determine if a foreign exporter or producer is engaging in targeted
dumping. See generally Certain Steel Nails From the People’s Republic of China, 73 Fed. Reg.
33,977 (Dep’t Commerce June 16, 2008) (final determination of sales at less than fair value);
Certain Steel Nails From the United Arab Emirates, 73 Fed. Reg. 33,985 (Dep’t Commerce June
16, 2008) (notice of final determination of sales at not less than fair value); see also Mid Continent
Nail Corp. v. United States, 34 CIT 512, 513–15, 712 F. Supp. 2d 1370, 1372–74 (2010). 	On
(footnote continued)
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Specifically, it argues that “Commerce failed to provide any substantive explanation of
why it abandoned” the Nails test. VASEP Br. 28. Defendant argues “VASEP did not raise
this argument before the agency and, thus, has failed to exhaust its administrative
remedies.” 	Def.’s Resp. 58. 	Defendant additionally argues that “[i]n any event,
Commerce provided appropriate explanations in the earlier cases in which it modified its
practice, such as Xanthan Gum, as well as in its more recent request for additional
comments in its Differential Pricing Analysis; Request for Comments, 79 Fed. Reg.
26,720 (Dep’t of Commerce May 9, 2014) (Differential Pricing Comment Request).” 	Id.
at 61. 	Because VASEP did not object to Commerce’s change in practice before the
agency, VASEP has failed to exhaust its administrative remedies.
The Court “shall, where appropriate, require the exhaustion of administrative
remedies.” 19 U.S.C. § 2637(d). The exhaustion requirement is based on the principle
“that no one is entitled to judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted.” Consol. Bearings Co. v. United
States, 348 F.3d 997, 1003 (Fed. Cir. 2003). 	The court “takes a ‘strict view’ of the
requirement that parties exhaust their administrative remedies before [Commerce] in
trade cases.” 	Corus Staal BV v. United States, 502 F.3d 1370, 1379 (Fed. Cir. 2007).
“Absent a strong contrary reason, the court should insist that parties exhaust their
remedies before the pertinent administrative agencies.” 	Id. 	Therefore, a litigant is
March 4, 2013, Commerce shifted its methodological approach and first used what it refers to as
the “differential pricing analysis” in the antidumping duty investigation of xanthan gum from the
People’s Republic of China. See Xanthan Gum From the People’s Republic of China, 78 Fed.
Reg. 33,351, 33,351–52 (Dep’t Commerce June 4, 2013) (final determination of sales at less than
fair value).
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required to avail itself of all available remedies at the administrative level as a precondition
to judicial review.
Before Commerce, interested parties are afforded an opportunity to submit a case
brief following the preliminary results to “present all arguments that continue . . . to be
relevant to [Commerce’s] final determination or final results, including any arguments
presented before the date of publication of the preliminary determination or preliminary
results.” 	19 C.F.R. § 351.309(c). 	Failure to do so is a procedural defect that in effect
abandons the argument and precludes raising the issue before the court. 	Thus,
interested parties generally must make all relevant arguments in their case brief for
Commerce to consider and address in its final determination before it is appropriate for
the court to review the contested determination, which is consistent with the overall
purpose of the exhaustion doctrine of “allow[ing] the agency to apply its expertise, rectify
administrative mistakes, and compile a record adequate for judicial review–advancing the
twin purposes of protecting administrative agency authority and promoting judicial
efficiency.” Carpenter Tech. Corp. v. United States, 30 CIT 1373, 1374–75, 452 F. Supp.
2d 1344, 1346 (2006) (citing Woodford v. Ngo, 548 U.S. 81, 88–90 (2006)).
Stapimex and MPG, both of which are individual member companies of VASEP,
filed case briefs with Commerce after the preliminary results. 	See generally Case Brief
on behalf of Soc Trang Seafood Joint Stock Company (“Stapimex”) and Separate Rate
Respondents, PD 237 at bar code 3205034-01 (May 29, 2014) (“Stapimex Case Br.”);
Resubmission of Minh Phu Group’s Case Brief. 	Stapimex incorporated by reference
MPG’s arguments regarding Commerce’s differential pricing analysis. 	See Stapimex
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Case Br. at 19. 	MPG made numerous arguments in its case brief challenging the
mechanics of Commerce’s differential pricing analysis. 24 All of the arguments in MPG’s
case brief relate to Commerce’s withdrawal of its targeted dumping regulations and to the
intricacies of the differential pricing analysis itself. 	Nowhere in its case brief does MPG
argue that Commerce has failed to adequately explain why it abandoned its previous
targeted dumping analysis in favor of its differential pricing analysis.
VASEP failed to exhaust its remedies below. VASEP raises the issue for the first
time before the court that “Commerce provided no explanation when it shifted its
methodology to the differential pricing analysis in this specific administrative review when
it had previously applied the Nails test in the 7th administrative review of the same
proceeding.” VASEP Br. 28. Commerce did not first announce its change in practice in
this review. 	Commerce has been using its differential pricing analysis in investigations
and reviews for some time now, including proceedings that were completed before
Commerce had issued the preliminary results in this case. See Prelim. I&D Memo at 16
n.72 (citing to recent antidumping duty investigations and reviews where Commerce has
applied its new practice). 	It was incumbent upon VASEP to object to Commerce’s
explanation for its change in practice or lack thereof at the administrative level after the
24 Specifically, MPG argued in its case brief that Commerce (1) inadequately explained its
withdrawal of the targeted dumping regulations (2) incorrectly ignored the t-test and the
importance of statistical significance; (3) should make separate and distinct determinations for
customer, region, and time period; (4) incorrectly considers absolute value in applying the
Cohen’s d test; (5) should use a higher threshold for sales to pass the Cohen’s d test; (6) should
not compare subgroups of a CONNUM; (7) incorrectly determines the pooled standard deviation
based on a simple average; and (8) should limit application of A-T only to those transactions that
are found to be differentially priced. See Resubmission of Minh Phu Group’s Case Brief at 1–36.
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preliminary results. 	MPG’s case brief made clear that it objected to the mechanics of
Commerce’s differential pricing analysis, but did not put Commerce on notice of an
objection to the change in practice itself.
VASEP contends that “[o]ne would expect Commerce, in addressing the multiple
arguments concerning differential pricing raised by MPG . . . to explain its change to that
practice from prior practice.” VASEP Br. 28–29 (internal citation omitted). However, the
adequacy of Commerce’s explanation for its change in practice was not raised, either
explicitly or implicitly, in MPG’s case brief as VASEP contends. 	“‘Simple fairness . . .
requires as a general rule that courts should not topple over administrative decisions
unless the administrative body not only has erred but has erred against objection made
at the time appropriate under its practice.’” Mittal Steel Point Lisas Ltd. v. United States,
548 F.3d 1375, 1384 (Fed. Cir. 2008) (quoting United States v. L.A. Tucker Truck Lines,
Inc., 344 U.S. 33, 37 (1952)). Commerce was not given an opportunity here to address
whether it has adequately explained its methodological shift to its differential pricing
analysis. 	Moreover, none of the exceptions to the exhaustion requirement apply here,
nor does VASEP claim that any of the exceptions apply. See Corus Staal BV, 502 F.3d
at 1378–81 (providing exceptional situations where the court may choose not to enforce
the exhaustion requirement, including when raising the argument before Commerce
would be futile or when Commerce changes its position from the preliminary to the final
determination). 	Therefore, VASEP has not exhausted its administrative remedies by
failing to raise the argument before Commerce.
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B. 	VASEP 	is 	Unable 	to 	Demonstrate 	That 	Commerce’s 	Use 	of 	the
Cohen’s 	d 	Test 	to 	Identify 	Significant 	Price 	Differences 	in 	its
Differential Pricing Analysis is Unreasonable
VASEP next makes several specific challenges concerning the mechanics of
Commerce’s differential pricing analysis and in particular Commerce’s Cohen’s d test.
See VASEP Br. 29–44. 	VASEP prefaces its arguments by acknowledging that the
statute, as implicated by Commerce’s practice in reviews, is unclear regarding what
constitutes a pattern of export prices that differ significantly and thus “Commerce has the
discretion to fill the gap.” Id. at 29. VASEP, however, argues that Commerce “does not
have unbridled discretion to fill such gaps,” id. at 39, and disagrees that Commerce’s
differential pricing analysis is entitled to deference because Commerce “fail[ed] to explain
its actions.” Id. at 29. Defendant argues that Commerce provided a more than adequate
explanation for why its differential pricing analysis is reasonable. 	See Def.’s Resp. 63
(citing Final I&D Memo at 17–35).
To determine whether merchandise is being sold in the United States at less than
fair value and, if so, to calculate the antidumping duty rate for individually examined
exporters and producers, Commerce compares normal value to the export price of each
entry 	of 	subject 	merchandise. 	See 	19 	U.S.C. 	§§ 	1675(a)(1)(B), 	1675(a)(2)(A),
1677(35)(A), 1677b(a). Commerce shall ordinarily use A-A to calculate dumping margins
in an investigation, but Commerce may use A-T as an alternative to the default A-A
method if certain conditions are met. See 19 U.S.C. § 1677f-1(d)(1)(A)–(B). The statute
permits application of A-T in an investigation to determine whether merchandise is being
sold at less than fair value if:
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(i) 	there is a pattern of export prices (or constructed export prices) for
comparable merchandise that differ significantly among purchasers,
regions, or periods of time, and
(ii) 	[Commerce] explains why such differences cannot be taken into
account using a method described in paragraph (1)(A)(i) [(A-A)] or
(ii) [(T-T)].
19 U.S.C. § 1677f-1(d)(1)(B).
Congress, however, has not dictated which comparison methodology Commerce
must use in administrative reviews, nor has Congress provided for when Commerce may
use A-T in reviews. 25 The Court of Appeals for the Federal Circuit nevertheless has held
that Commerce has authority to apply A-T in a review. 	See JBF RAK LLC v. United
States, 790 F.3d 1358, 1362–65 (Fed. Cir. 2015) (affirming Commerce’s decision to apply
A-T in the context of an administrative review).
Although Commerce has authority to apply A-T in the context of an administrative
review, see id., no statute or regulation directs Commerce when and how it may apply
A-T. Commerce’s regulations provide that Commerce will apply A-A to calculate dumping
margins in investigations and reviews unless another method is appropriate in a particular
case, but do not provide further guidance regarding what those circumstances may be. 26
See 19 C.F.R. § 351.414(c)(1). Commerce has found the approach it has developed in
25 The only guidance the statute provides with respect to Commerce’s use of A-T in a review is
that when applying A-T, Commerce “shall limit its averaging of prices to a period not exceeding
the calendar month that corresponds most closely to the calendar month of the individual export
sale.” 19 U.S.C. § 1677f-1(d)(2).
26 While a comparison of “the normal values of individual transactions to the export prices of
individual transactions,” (“T-T”) is listed as a preferred method under 19 U.S.C. § 1677f-1(d)(1)(A),
Commerce’s regulations provide that the T-T methodology will rarely be employed by Commerce
“such as when there are very few sales of subject merchandise and the merchandise sold in each
market is identical or very similar or is custom-made.” 19 C.F.R. § 351.414(c)(2).
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investigations, namely the differential pricing analysis, to be instructive for determining
whether application of A-T is appropriate in a review. 	See Antidumping Proceedings:
Calculation of the Weighted-Average Dumping Margin and Assessment Rate in Certain
Antidumping Duty Proceedings; Final Modification, 77 Fed. Reg. 8,101, 8,102 (Dep’t
Commerce Feb. 14, 2012) (announcing that Commerce intends to apply a comparison
methodology in reviews in a manner that parallels investigations). 	In the preliminary
results, Commerce explained that
[a]lthough [19 U.S.C. § 1677f-1(d)(1)(B)] does not strictly govern the
Department’s examination of this question in the context of administrative
reviews, 	the 	Department 	finds 	that 	the 	issue 	arising 	under 	19 	CFR
[§] 351.414(c)(1) in administrative reviews is, in fact, analogous to the issue
in antidumping duty investigations. 	In recent investigations and reviews,
the Department applied “differential pricing” analysis to determine whether
application of A-T comparisons is appropriate in a particular situation
pursuant to 19 CFR [§] 351.414(c)(1) and consistent with [19 U.S.C.
§ 1677f-1(d)(1)(B)]. 	The Department finds that the differential pricing
analysis may be instructive for purposes of examining whether to apply an
alternative comparison method in this administrative review.
Prelim. I&D Memo at 15–16 (internal footnotes omitted). 	Therefore, as a matter of
practice, Commerce engages in the differential pricing analysis in administrative reviews
to determine whether application of A-T is appropriate. 	According to that practice,
Commerce may use A-T rather than A-A in a review when (1) there is a pattern of export
prices that differ significantly among purchasers, regions, or periods of time and (2)
Commerce explains why the pattern of significant price differences cannot be taken into
account using A-A. See id. at 16–17. Commerce’s practice first “requires a finding of a
pattern of [export prices] for comparable merchandise that differs significantly among
purchasers, regions or time periods.” Id. at 16. The first stage of the differential pricing
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analysis answers this question by bifurcating the inquiry using the Cohen’s d test and a
ratio test, i.e., separately addressing whether there are significant price differences and
whether the extent of those significant price differences constitute a pattern. 	See id. at
16–17.
Commerce uses the Cohen’s d test to evaluate whether “the net prices to a
particular purchaser, region, or time period differ significantly from the net prices of all
other sales of comparable merchandise.” 27 Id. at 16. Commerce interprets the results of
the 	Cohen’s 	d 	test 	and 	determines 	whether 	a 	respondent’s 	export 	prices 	differ
significantly as follows:
The extent of these differences can be quantified by one of three fixed
thresholds defined by the Cohen’s d test: small, medium or large. Of these
thresholds, the large threshold provides the strongest indication that there
is a significant difference between the means of the test and comparison
groups, while the small threshold provides the weakest indication that such
a difference exists. 	For this analysis, the difference was considered
significant, and the sales are considered to have passed the Cohen’s d test,
if the calculated Cohen’s d coefficient is equal to or exceeds the large (i.e.,
0.8) threshold.
27 Commerce only conducts the Cohen’s d test if: (1) the test group and its corresponding
comparison group each have at least two transactions, and (2) the quantity of sales that make up
the comparison group account for at least five percent of the total quantity of sales of comparable
merchandise. 	See Prelim. I&D Memo at 16. 	Commerce performs the Cohen’s d test by first
calculating the difference between the weighted-average sales prices of a test group and its
corresponding comparison group, and the extent of the difference between the sales prices of the
two groups is then calculated by comparing the difference in relation to the price variances of the
two groups. 	See Final I&D Memo at 28. 	The resulting value is referred to as the Cohen’s d
coefficient. 	See id. 	All of a respondent’s sales for each CONNUM undergo several rounds of
analysis to assess whether the export prices to a particular purchaser, region, or time period differ
significantly from the export prices to all other purchasers, regions, or time periods. 	See, e.g.,
Analysis for the Preliminary Results for Minh Phu Group at 11–12, CD 161 at bar code 3188763-
01 (Mar. 18, 2014); Analysis for the Preliminary Results of Soc Trang Seafood Joint Stock
Company at 7–8, PD 204 at bar code 3189196-01 (Mar. 18, 2014); see also Final I&D Memo at
28–29 (explaining Commerce analyzes all sales in the Cohen’s d test).
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Id. 	Thus, Commerce determines test group sales to pass the Cohen’s d test if the
resulting Cohen’s d coefficient falls within the large threshold, i.e., equal to or greater than
0.8, which Commerce has found to be a strong indication of significant price differences.
See id. Conversely, Commerce views a Cohen’s d coefficient value that falls within the
small or medium thresholds, i.e., less than 0.8, as an indication that the price differences
are not significant. See id. If the weighted-average sales price of a test group pass any
of the rounds of the Cohen’s d test, then all the sales within that test group are considered
to have passed the Cohen’s d test as a whole. 	See, e.g., Analysis for the Preliminary
Results for Minh Phu Group at 11–12, CD 161 at bar code 3188763-01 (Mar. 18, 2014)
(“MPG Prelim. Analysis”); Analysis for the Preliminary Results of Soc Trang Seafood Joint
Stock Company at 7–8, PD 204 at bar code 3189196-01 (Mar. 18, 2014) (“Stapimex
Prelim. Analysis”). 	After Commerce uses the Cohen’s d test, Commerce uses its ratio
test to “assess[] the extent of the significant price differences for all sales as measured
by the Cohen’s d test.” Prelim. I&D Memo at 17.
In the ratio test, the individual results from the Cohen’s d test are “aggregated for
the producer or exporter as a whole to determine whether there exists a pattern of prices
that differ significantly for that producer or exporter.” Final I&D Memo at 30. Commerce
described its assessment of the significant price differences as follows:
If the value of sales to purchasers, regions, and time periods that pass the
Cohen’s d test account for 66 percent or more of the value of total sales,
then the identified pattern of prices that differ significantly supports the
consideration of the application of the A-T method to all sales as an
alternative to the A-A method. If the value of sales to purchasers, regions,
and time periods that pass the Cohen’s d test accounts for more than 33
percent and less than 66 percent of the value of total sales, then the results
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support consideration of the application of an A-T method to those sales
identified as passing the Cohen’s d test as an alternative to the A-A method,
and application of the A-A method to those sales identified as not passing
the Cohen’s d test. If 33 percent or less of the value of total sales passes
the Cohen’s d test, then the results of the Cohen’s d test do not support
consideration of an alternative to the A-A method.
Prelim. I&D Memo at 17. Thus, the ratio test supports consideration of the application of
A-T if more than 33% of the value of total sales pass the Cohen’s d test. See id.
If the results of both the Cohen’s d test and the ratio test support consideration of
the application of A-T, then Commerce proceeds to the second stage of the differential
pricing analysis. 	See id. 	In the second stage of the analysis, Commerce “examine[s]
whether using only the A-A method can appropriately account for such differences.” Id.
To that end, Commerce
tests whether using an alternative method, based on the results of the
Cohen’s d and ratio test described above, yields a meaningful difference in
the weighted average dumping margin as compared to that resulting from
the use of the A-A method only. 	If the difference between the two
calculations is meaningful, this demonstrates that the A-A method cannot
account for differences such as those observed in this analysis, and,
therefore, an alternative method would be appropriate. A difference in the
weighted-average dumping margins is considered meaningful if (1) there is
a 25 percent relative change in the weighted average dumping margin
between the A-A method and the appropriate alternative method where both
rates are above the de minimis threshold, or (2) the resulting weighted-
average dumping margin moves across the de minimis threshold.
Id. If these preconditions are met, Commerce finds that application of A-T is appropriate.
The court affords Commerce significant deference in determinations “involv[ing]
complex economic and accounting decisions of a technical nature.” Fujitsu Gen. Ltd. v.
United States, 88 F.3d 1034, 1039 (Fed. Cir. 1996). Commerce’s methodological choice
for determining whether a respondent has engaged in a particular pricing behavior
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warranting application of an alternative comparison methodology is precisely the type of
determination where Commerce is afforded such discretion. Despite this wide discretion,
Commerce “must cogently explain why it has exercised its discretion in a given manner,”
Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 48–49
(1983), and the methodological approach must nevertheless be a “reasonable means of
effectuating the statutory purpose” and its conclusions must be supported by substantial
evidence to be afforded deference. 	Ceramica Regiomontana, S.A. v. United States, 10
CIT 399, 404–05, 636 F. Supp. 961, 966 (1986), aff’d, 810 F.2d 1137, 1139 (Fed. Cir.
1987). 	Under 	this 	rubric, 	the 	court 	must 	only 	address 	whether 	Commerce’s
methodological choice in carrying out its directive is reasonable.
Here, Commerce found that that the mandatory respondents’ sales exhibited a
pattern of export prices that differ significantly among purchasers, regions, and periods
of time. 	See Prelim. I&D Memo at 18–19. 	After conducting the Cohen’s d test and the
ratio test, Commerce found that 63.4 percent of MPG’s export sales and 69.4 percent of
Stapimex’s 	export 	sales 	confirmed the existence of 	a pattern of 	significant 	price
differences among export prices for purchasers, regions, or time periods. 	See MPG
Prelim. Analysis at 11–12; Stapimex Prelim. Analysis at 7–8. 	Commerce additionally
determined that the A-A method cannot account for the pattern of significant price
differences exhibited by the mandatory respondents’ sales because there is a meaningful
difference “[w]hen comparing the weighted-average dumping margins calculated using
the standard average-to-average method for all U.S. sales and the appropriate alternative
comparison method.” 	Prelim. I&D Memo at 18–19. 	Thus, Commerce determined that
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application of A-T was appropriate to calculate respondents’ dumping margins in this
review. See id. at 19. For MPG, the differential pricing analysis led Commerce to apply
A-T only to the portion of MPG’s domestic sales that exhibited a pattern of significant price
differences and A-A to all of its other domestic sales. See MPG Prelim. Analysis at 11–
12; see also Prelim. I&D Memo at 19. 	By contrast, the results of the differential pricing
analysis led Commerce to apply A-T to all of Stapimex’s U.S. sales. See Stapimex Prelim.
Analysis at 7–8; see also Prelim. I&D Memo at 19. 	Commerce calculated weighted-
average dumping margins of 9.75% for Stapimex applying A-T to all of its U.S. sales and
4.98% for MPG applying a combination of A-T and A-A, from which Commerce assigned
a rate of 6.37% to separate rate respondents covered by the review. 	See Stapimex
Prelim. Analysis at 7–8; MPG Prelim. Analysis 11–12; Final Results, 79 Fed. Reg. at
57,049.
Commerce 	has 	sufficiently 	explained 	why 	its 	differential 	pricing 	analysis,
specifically its use of the Cohen’s d test to identify significant price differences, is
reasonable. See Prelim. I&D Memo at 15–17; Final I&D Memo at 27–33. In explaining
its decision to use the Cohen’s d test, Commerce preliminarily noted that “there is nothing
in the statute that mandates how the Department measures whether there is a pattern of
prices that differs significantly.” 	Final I&D Memo at 27. 	Commerce thus chose the
Cohen’s d test to measure price differences “to make use of a generally recognized
measure of effect size in a practical analysis of an exporter’s pricing data to make a
determination the statute calls upon the Department to make.” 	Id. at 29. 	Commerce
explained that it uses the Cohen’s d test for this purpose because “[t]he Cohen’s d test is
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a generally recognized statistical measure of the extent of the difference between the
mean of a test group and the mean of a comparison group.” 	Prelim. I&D Memo at 16.
Commerce further explained that “the Cohen’s d test is a ‘commonly used measure’ to
‘consider the difference between means in standardized units’” and is thus a “reasonable
tool for use as part of an analysis to determine whether a pattern of prices differ
significantly.” 	Final I&D Memo at 30. 	For these reasons, Commerce stated that its
“differential pricing analysis is reasonable, and the use of Cohen’s d test as a component
in this analysis is in no way contrary to the law.” 	Id. at 27. 	Commerce’s reasons for
choosing the Cohen’s d test suffice to explain why the test is able to identify and discern
significant price differences. 	Commerce’s use of the Cohen’s d test here is reasonable
because its use identifies significant price differences.
VASEP’s challenges to Commerce’s use of the Cohen’s d test in its differential
pricing analysis fail. In particular, VASEP argues Commerce’s use of the Cohen’s d test
is unlawful because it (1) lacks an additional test of statistical significance, see VASEP
Br. 30, (2) uses arbitrary thresholds for determining whether sales pass the Cohen’s d
test, see id. at 30–34, (3) uses weighted-average export prices over prices of individual
transactions to identify significant price differences, see id. at 33–35, (4) compares two
subgroups of sales of a CONNUM 28 rather than a subgroup of sales to all sales of a
CONNUM to identify significant price differences, see id. at 37–38, (5) includes both
28 CONNUM is short for “control number” and is a numerical representation of a product consisting
of a series of numbers reflecting characteristics of a product in the order of their importance used
by Commerce to refer to particular merchandise. See Prelim. I&D Memo at 16; Final I&D Memo
at 6, 14.
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higher-priced and lower-priced sales to identify significant price differences, see id. at 41–
42, and (6) uses a pooled standard deviation derived from a simple average to identify
significant price differences. 	See id. at 43–44. 	VASEP’s specific challenges fail to
demonstrate that Commerce’s methodology runs afoul of the statute or is otherwise
unreasonable. 	Moreover, VASEP fails to put forth record evidence that demonstrates
that in this case Commerce’s use of the Cohen’s d test is unable to reveal significant price
differences or is otherwise unreasonable.
First, VASEP argues that Commerce was required to employ the use of a so-called
t-test in conjunction with the Cohen’s d test to ensure that the results are statistically
significant. 	See id. at 30. 	However, there is no statutory provision that requires
Commerce to make use of such an additional test, and Commerce adequately explained
why it was not required to do so. Commerce explained that “[t]he statute does not require
that the difference be ‘statistically’ significant, only that it be significant.” Final I&D Memo
at 29. 	Had Congress intended to impose upon Commerce a requirement to ensure
statistical significance, “Congress presumably would have used language more precise
than ‘differ significantly.’” Id. Commerce explained that “[s]tatistical significance is used
to evaluate whether the results of an analysis rises above sampling error (i.e., noise)
present in the analysis and is dependent on the sampling technique and sample size.”
Id. at 28. 	However, Commerce further explained that its “use of the Cohen’s d test is
based on the entire population of U.S. sales by each of the respondents, and, therefore,
there are no estimates involved in the results and ‘statistical significance’ is not a relevant
consideration.” Id. In support, Commerce points to the fact that “the Cohen’s d coefficient
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is calculated based on the means and variances of the test group and the comparison
group,” both of which “include all of the U.S. sales of comparable merchandise reported
by the respondent.” Id. Because Commerce’s analyzes all sales in identifying significant
price differences, “sampling technique, sample size, and statistical significance are not a
relevant consideration in this context.” 	Id. 	VASEP is unable to show why Commerce’s
refusal to employ an additional test of statistical significance is unreasonable here.
Second, VASEP argues that the thresholds Commerce uses for determining
whether test group sales pass the Cohen’s d test are arbitrary. 29 See VASEP Br. 30–34.
VASEP asserts that the use of a 0.8 threshold to determine whether test group sales pass
the Cohen’s d test makes “it more likely than not that differential pricing will be found
based on the application of Cohen’s d” because, based on a normal distribution, “44% of
observations . . . would . . . constitute sales with significant price differences.” Id. at 31.
In the final results, Commerce maintained that the thresholds it uses in the Cohen’s d test
are appropriate for purposes of identifying significant price differences. 	Commerce
explained that these thresholds of “what constitutes a small effect size, medium effect
size, and large effect size ‘have been widely adopted.’” 	Final I&D Memo at 30.
Commerce further explained that “[o]f these thresholds, the large threshold provides the
strongest indication that there is a significant difference between the means of the test
29 VASEP particularly relies upon information from documents that were not on the record before
Commerce and that the court declined to take judicial notice of in arguing that Commerce’s
thresholds in the Cohen’s d test are arbitrary. See, e.g., VASEP Br. 25–26, 30–31, 40–41. The
court has not considered the information from these documents in its review of these thresholds.
Camp v. Pitts, 411 U.S. 138, 142 (1973) (“[T]he focal point for judicial review should be the
administrative record already in existence, not some new record made initially in the reviewing
court.”).
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and comparison groups, while the small threshold provides the weakest indication that
such a difference exists.” 	Prelim. I&D Memo at 16. 	Among these widely accepted
thresholds, Commerce has chosen to use the largest and most demanding of the three
to inform Commerce whether price differences are significant. 	See id. 	Commerce also
emphasized that the statutory language does not indicate that some different or higher
threshold must be used. 	See Final I&D Memo at 29. 	VASEP’s argument assumes the
mandatory respondents’ sales data reflects a normal distribution and are not differentially
priced, but “Commerce has never claimed that the United States sales prices in this
review exhibit a normal distribution” and “has made no finding that United States prices
tend to exhibit a normal distribution.” Def.’s Resp. 68–69. VASEP has not pointed to any
record evidence that suggests that the sales data analyzed here reflects such a price
distribution.
VASEP relatedly claims that by using the 0.8 threshold Commerce’s analysis
reveals significant price differences where the difference is insignificant. See VASEP Br.
31. 	However, Commerce makes clear that the “the Cohen’s d coefficient is calculated
based on the means and variances of the test group and the comparison group.” 	Final
I&D Memo at 28. 	In other words, the 0.8 threshold combined with the variance, i.e.,
pooled standard deviation, 30 among the sales prices from the test group and the
comparison group together determine whether the sales prices differ significantly. 	See
30 A pooled standard deviation is a composite value representing the variance between data sets,
which in this case are the sales prices of the test group sales and the comparison group sales.
See Final I&D Memo at 32–33.
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Def.’s Resp. 69. Commerce determines whether price differences are significant based
upon the average price variation between the weighted-average sales prices of a
CONNUM. 	Thus, it is reasonably discernable from Commerce’s explanation that the
relative significance of the price differences is what matters, not the absolute differences.
See Ceramica Regiomontana, S.A. v. United States, 810 F.2d 1137, 1139 (Fed. Cir.
1987) (an agency’s decision “of less than ideal clarity” may be upheld if the agency’s path
is reasonably discernible).
Third, VASEP takes issue with Commerce’s use of weighted-average export prices
as opposed to export prices of individual transactions in the Cohen’s d test. See VASEP
Br. 33–35. 	VASEP argues that “Commerce has not adequately explained why this
methodology is consistent with either the statutory requirement that ‘export prices,’ not
the mean of export prices, must differ significantly.” Id. at 35. The language of the statute,
as implicated by Commerce’s practice, requires Commerce to determine if “there is a
pattern of export prices . . . that differ significantly among purchasers regions, or periods
of 	time.” 	19 U.S.C. § 1677f-1(d)(1)(B)(i). 	Commerce has chosen to make this
determination by using weighted-average export prices. 	See Final I&D Memo at 28.
Commerce’s decision to use weighted-average export prices as opposed to prices of
individual transactions is reasonable. 	Neither the statute nor Commerce’s practice of
using its differential pricing analysis requires it to identify significant price differences
through the use of individual export prices. 	The test group is comprised of sales to a
particular purchaser, region, or time period, and the corresponding comparison group is
comprised of sales to all other purchasers, regions, or time periods. 	See id. at 28, 32.
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By basing its calculation “on the means and variances of the test group and the
comparison group,” id. at 28, Commerce reasonably determines whether the price
differences between these two subgroups of sales are significant by evaluating the
relative price differences between the two subgroups of sales. 	It is discernable from
Commerce’s explanation that significant price differences between weighted-average of
export prices reasonably indicate that individual export prices differ significantly. VASEP
claims that the use of weighted-average export prices “reflect[s] the overstatement of the
incidence of differential pricing based on the inclusion in the mean for the subgroup of
both sales at prices that differ significantly and those that do not.” 	VASEP Br. 35.
However, 	to 	show 	that 	Commerce’s 	use 	of 	weighted-average 	export 	prices 	was
unreasonable here, VASEP must demonstrate that the use of weighted-averages finds
significant price differences where such price differences would not be found as
significant through the use of individual export prices. 	Beyond conclusory statements,
VASEP does not put forth any record evidence to suggest that the case here presents
such a situation.
Fourth, VASEP argues that “Commerce has not explained how its decision to
compare two subgroups of a CONNUM rather than a subgroup to the total sales of a
particular CONNUM is consistent with the statutory purpose of the exercise.” 	Id. at 38.
Commerce’s explanation was clear and reasonable. 	Before conducting the Cohen’s d
test, 	Commerce 	disaggregates 	the 	data 	collected 	from 	the 	individually 	examined
respondents and sorts the sales of each CONNUM into sales to particular purchasers,
regions, and periods of time. See Prelim. I&D Memo at 16. Each grouping of CONNUM
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sales specific to a purchaser (or region or time period) forms a test group and the
remaining sales of that CONNUM to all other purchasers (or regions or time periods) form
a corresponding comparison group. See Final I&D Memo at 28, 32. Commerce explained
it disagreed
that the sales in each test group should also be included in the comparison
group rather than have the test and comparison groups be independent
(i.e., mutually-exclusive) of each other. 	This would result in purchasers’,
regions or time period’s sale prices being compared to themselves. 	[19
U.S.C. § 1677f-1(d)(1)(B)(i)] states that there must exist a pattern of prices
for comparable merchandise that differ significantly “among purchasers,
regions, or periods of time.” It does not state between a purchaser, region
and time period and all sales of the comparable merchandise.
Id. at 32. 	For these reasons, Commerce “structured the Cohen’s d test to compare the
mean price to a given purchaser, region or time period within the mean price to all other
purchasers, regions or time periods, respectively.” Id.
The court finds this explanation to be adequate and reasonable because it is
arguably counterintuitive to include the potentially differentially priced sales in the base
group for purposes of evaluating whether the target group sales prices differ significantly.
VASEP might be able to make a different argument, but being able to do so does not
make Commerce’s decision and explanation unreasonable. VASEP, however, contends
that comparing two subgroups of a CONNUM “could yield the anomalous result that all
prices within a given CONNUM differ significantly in that all could pass the Cohen’s d test
at above or below the 0.8 threshold.” VASEP Br. 38. Commerce did not deny that such
result may occur, but explained that such a result is logical and not anomalous as VASEP
contends. Thus, the possibility that all sales within a given CONNUM differ significantly
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is not an unacceptable result. 	VASEP again has not pointed to record evidence to
suggest that comparing two subgroups of sales of a particular CONNUM is unreasonable
here.
Fifth, VASEP asserts that Commerce has erroneously included higher-priced sales
in determining whether the mandatory respondents’ sales prices differ significantly. See
id. at 41–42. VASEP grounds its argument in the belief that the objective of the statute
“is limited to uncovering masked dumping resulting from prices that differ significantly.”
Id. at 42. 	Commerce has adequately explained why it is reasonable to consider both
higher-priced and lower-priced sales in its analysis.
To 	discern 	whether 	a 	respondent’s 	export 	prices 	differ 	significantly 	among
purchasers, regions, or time periods, Commerce has chosen to consider all sales.
Commerce explained that “the statute does not require that the Department consider only
lower priced sales” and “higher priced sales are equally capable as lower priced sales to
create a pattern of prices that differ significantly.” 	Final I&D Memo at 31. 	Commerce
further explained that all sales are relevant to its analysis because “higher priced sales
and lower priced sales do not operate independently; all sales are relevant to the analysis.
Lower and higher priced sales could be dumped or could be masking other dumped
sales.” Id. Specifically, “higher priced sales will offset lower priced sales, either implicitly
through the calculation of a weighted-average price or explicitly through the granting of
offsets, that can mask dumping,” and “[b]y considering all sales, higher priced and lower
priced sales, the Department is able to analyze an exporter’s pricing practice and to
identify whether there is a pattern of prices that differ significantly.” 	Id. 	Considering all
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sales is not distortive. 	Commerce’s methodology is reasonable in this regard because
considering all sales allows Commerce to fully assess the breadth of a respondent’s price
differences. VASEP argues that Commerce’s analysis should be limited to dumped sales
that are hidden by significant price differences. 	However, VASEP’s argument is
inapposite because the function of the Cohen’s d test is to determine if a respondent’s
export sales prices differ significantly, not to identify dumped sales. As Commerce stated,
“[l]ower and higher priced sales could be dumped or could be masking other dumped
sales––this is immaterial in the Cohen’s d test and in answering the question of whether
there is a pattern of [export prices] that differ significantly because this analysis includes
no comparisons with [normal values] and [19 U.S.C. § 1677f-1(d)(1)(B)(i)] contemplates
no such comparisons.” 	Id. 	Thus, VASEP misconstrues Commerce’s analysis and is
unable to demonstrate that Commerce has acted unreasonably by considering all sales
to determine whether the mandatory respondents’ sales were differentially priced.
Lastly, VASEP challenges Commerce’s decision to base the variance between the
means of the test group and the comparison group on a simple average rather than a
weighted 	average 	given 	that 	the 	comparison 	group 	virtually 	always 	has 	more
observations than the test group. 	See VASEP Br. 43–44. 	VASEP argues that “[b]y
weighting the variances of the test and control groups equally, the likelihood of the test
group 	passing 	Cohen’s 	d 	is 	substantially 	increased 	because 	the 	test 	group 	is
overweighed.” Id. Commerce’s decision to base the combined variance between the test
group and the comparison group on a simple average is reasonable in this case.
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Commerce makes its Cohen’s d test calculation by first calculating the difference
between the weighted-average sales prices of a test group and its corresponding
comparison group. See Final I&D Memo at 28. Commerce determines the extent of the
price difference between the sales prices of the test group and comparison group based
upon the pooled standard deviation, which “quantifies the variations in . . . prices in each
of the test and comparison groups.” Def.’s Resp. 69. While the variance for each group
is weight-averaged, Commerce uses a simple average to calculate the combined
variance, also referred to as the pooled standard deviation. See Final I&D Memo at 32–
33.
[T]here is no statutory directive with respect to how the Department should
determine whether a pattern of prices that differ significantly exists, let alone
how to calculate the pooled standard deviation of the Cohen’s d coefficient.
The Department’s intent is to rely on a reasonable approach that affords
predictability. 	The Department finds here that the best way to accomplish
this goal is to use a simple average (i.e., giving equal weight to the test and
comparison groups) when determining the pooled standard deviation. 	By
using a simple average, the respondent’s pricing practices to each group
will be weighted equally, and the magnitude of the sales to one group does
not skew the outcome (although we note that within both the test group and
comparison group, the Department uses weight averaging when calculating
the variance for each group). . . . [W]e disagree . . . that the proper approach
is to account for differences in the size of each group.
Id. 	Commerce’s decision to calculate the pooled standard deviation by using a simple
average does not run afoul of any statutory provision and is reasonable on its face.
VASEP, however, argues that “when Commerce uses a straight average rather
than a weighted average to determine the variance between the groups when applying
Cohen’s d, the analysis is biased in favor of finding that the test group passes Cohen’s
d.” 	VASEP Br. 43. 	As support, VASEP provides a hypothetical example that it argues
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illustrates how using a simple average skews the results in favor of finding differential
pricing. See id. at 43–44. This argument is predicated on the assumption that a variance
based on a simple average results in a smaller pooled standard deviation and a smaller
denominator in the Cohen’s d calculation, which would ultimately make it more likely that
the test group sales would pass the Cohen’s d test. However, as Commerce explained,
that result is not necessarily the case. 	Commerce explained that the hypothetical
“actually provides further support for the Department’s use of a simple average” because
“[i]f . . . the standard deviations are reversed between the test and comparison groups,
the exact opposite result is derived.” Final I&D Memo at 33. It is possible that there is a
large price variance among the sales prices in the test group and thus a simple average
would actually yield a larger pooled standard deviation, making it less likely that the test
group sales would pass the Cohen’s d test. 	Moreover, VASEP also does not present
record evidence to demonstrate that a pooled standard deviation based on a simple
average is unreasonable here.
Before Commerce may apply A-T in a review, Commerce must first determine
whether a respondent’s sales reveal a pattern of export prices that differ significantly
among purchasers, regions, or periods of time. Commerce stated that “there is nothing
in the statute that mandates how the Department measures whether there is a pattern of
prices that differs significantly.” 	Final I&D Memo at 27. 	Thus, according to its practice,
Commerce uses the Cohen’s d test to identify significant price differences. As discussed
above, the court finds Commerce’s use of the Cohen’s d test for this purpose to be
reasonable here. See State Farm, 463 U.S. at 48–49 (“[A]n agency must cogently explain
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why it has exercised its discretion in a given manner.”); Fujitsu Gen. Ltd., 88 F.3d at 1039
(granting 	Commerce 	significant 	deference 	in 	determinations 	“involv[ing] 	complex
economic and accounting decisions of a technical nature”); Ceramica Regiomontana,
S.A., 636 F. Supp. at 966, aff’d, 810 F.2d at 1139 (affording deference to Commerce’s
methodology so long as it reasonably effectuates the statutory purpose and is supported
by substantial evidence). 	Commerce has made clear that “[f]urther developments and
changes, along with further refinements are expected in the context of its proceeding
based upon an examination of the facts and the parties’ comments in each case.” Final
I&D Memo at 28. 	However, VASEP’s arguments are unable to demonstrate that
Commerce’s reliance on the Cohen’s d test is unreasonable in this case.
C. 	VASEP is Unable to Demonstrate That Commerce’s Application of A-T
is Unreasonable
VASEP challenges how Commerce chose to apply A-T once it determined that the
application of A-T was appropriate here. 	VASEP argues that Commerce has not
explained why it is reasonable for it to apply A-T to some of a respondent’s sales, where
between 33% and 66% of the value of its sales pass the Cohen’s d test, and A-T to all of
a respondent’s sales, where more than 66% of the value of its sales pass the Cohen’s d
test. 	See VASEP Br. 33–37. 	Defendant responds that Commerce’s “measured, tiered
approach” for applying A-T is reasonable because there is no statutory provision that
specifies how Commerce is to apply A-T once the criteria for application of an alternative
methodology are satisfied. See Def.’s Resp. 73. 	Further, Commerce explained it relied
upon its experience and expertise concerning the extent of patterns of prices that differ
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significantly in developing the thresholds. See Prelim. I&D Memo at 17. 	VASEP has
offered no evidence to show that Commerce acted unreasonably in this case.
According to Commerce’s practice, if a respondent’s export sales exhibit a pattern
of export prices that differ significantly among purchasers, regions, or time periods and
that application of A-A cannot account for such differences, Commerce may choose to
apply A-T to uncover dumping that may be masked by the pattern of significant price
differences. 	See id. at 16–17. 	The results of the ratio test, which Commerce uses to
“assess the extent of the significant price differences for all sales as measured by the
Cohen’s d test,” dictate how Commerce will proceed to apply A-T to a particular
respondent. See id. at 17. Commerce applies A-T to all of a respondent’s export sales
if the value of the sales passing the Cohen’s d test accounts for at least 66% of the value
of all sales and, conversely, Commerce applies A-T only to those sales passing the
Cohen’s d test and A-A to all other sales if the sales passing the Cohen’s d test account
for more than 33% but less than 66% of the value of all sales. See id.
In situations involving complex and technical methodological choices, such as
here, Commerce is given a wide level of discretion and the court need only address
whether Commerce’s methodological choice is reasonable. See State Farm, 463 U.S. at
48–49 (“[A]n agency must cogently explain why it has exercised its discretion in a given
manner.”); Fujitsu Gen. Ltd., 88 F.3d at 1039 (granting Commerce significant deference
in determinations “involv[ing] complex economic and accounting decisions of a technical
nature”); Ceramica Regiomontana, S.A., 636 F. Supp. at 966, aff’d, 810 F.2d at 1139
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(affording deference to Commerce’s methodology so long as it reasonably effectuates the
statutory purpose and is supported by substantial evidence).
Here, Commerce found that 63.4 percent of MPG’s export sales and 69.4 percent
of Stapimex’s export sales confirmed the existence of a pattern of significant price
differences among export prices for purchasers, regions, or time periods. 	See MPG
Prelim. Analysis at 11–12; Stapimex Prelim. Analysis at 7–8. As a result, the differential
pricing analysis led Commerce to apply A-T to all of Stapimex’s U.S. sales. See Stapimex
Prelim. Analysis at 7–8; see also Prelim. I&D Memo at 19. 	By contrast, the differential
pricing analysis as applied to MPG led Commerce to apply A-T only to the portion of U.S.
sales that exhibited a pattern of significant price differences and A-A to all of its other U.S.
sales. 31 See MPG Prelim. Analysis at 11–12; see also Prelim. I&D Memo at 19.
Commerce’s use of the stated thresholds of 33% and 66% in determining whether
to apply A-T and thereafter apply A-T to MPG’s differentially priced sales and all of
Stapimex’s sales is reasonable. 	Commerce explained its rationale behind its approach
in the final results:
When the criteria for application of the A-to-T method are satisfied, [19
U.S.C. § 1677f-1(d)(1)(B)] does not specify how to apply of the A-to-T
method. . . . The Department finds that this approach is reasonable because
whether, as an alternative methodology, the A-to-T comparison method is
applied to all U.S. sales, a subset of U.S. sales, or no U.S. sales, depends
on what proportion of U.S. sales pass the Cohen’s d test. Thus, there is a
direct correlation between the U.S. sales that establish a pattern of prices
31 VASEP and Defendant inadvertently state that Commerce applied A-T to all of MPG’s sales.
See, e.g., Def.’s Resp. 73; VASEP Reply 17. The court notes, however, that Commerce applied
A-T to all of Stapimex’s sales, not MPG’s sales. 	See Stapimex Prelim. Analysis at 7-8.
Commerce applied A-T to MPG’s sales that Commerce found to be differentially priced and A-A
to all of its other sales. See Final I&D Memo at 33-35; MPG Prelim. Analysis at 11-12.
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that differ significantly and to what portion of the U.S. sales the A-to-T
comparison method is applied.
Final I&D Memo at 33–34. 	Commerce’s path is reasonably discernable. 	Because
Commerce is not directed how to apply A-T if it determines that application of A-T is
appropriate, 	Commerce 	has 	fashioned 	a 	tiered 	approach 	to 	decide 	what 	degree
application of A-T is appropriate dependent upon which threshold a respondent’s pricing
behavior falls under. See id. at 33.
VASEP argues that “Commerce has not explained why it is using thresholds of
33% and 66% in its ratio test” for determining whether application of A-T is appropriate.
See VASEP Br. 34. However, Commerce has adequately explained that it is using these
thresholds based upon its experience with analyzing pricing behaviors and identifying
patterns of significant price differences. 	See Prelim. I&D Memo at 17; Final I&D Memo
at 33–34. 	Based upon its experience and expertise in discerning pricing behaviors,
Commerce has found that there is a correlation to the degree of differential pricing and
the amount of masked dumping and has developed thresholds to reflect its understanding
of that correlation. If 33% or less of the value of all of a respondent’s sales are found to
have been differentially priced, Commerce views the pricing behavior within this threshold
to fall short of constituting a pattern of significant price differences. In a situation where
a respondent’s differentially priced sales account for between 33% and 66% of the value
of all of its sales, Commerce finds that application of A-T is appropriate to uncover
dumping masked by these sales but only to the differentially priced sales. 	However,
where a respondent’s differentially priced sales account for more than 66% of the value
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of all of its sales, Commerce views the extent of the pattern of significant price differences
to be so pervasive as to warrant applying A-T to all of its export sales. Thus, Commerce’s
approach applies A-T proportionate to the degree that a respondent has engaged in
impermissible pricing behavior. 	This discretionary application of A-T is reasonable and
consistent with the underlying remedial purpose of the antidumping duty regime. 	See
Agro Dutch Indus. Ltd. v. United States, 508 F.3d 1024, 1027 (Fed. Cir. 2007) (“The
purpose of the antidumping statute is to prevent foreign goods from being sold at unfairly
low prices in the United States to the injury of existing or potential United States
producers.”). VASEP does not present any evidence that suggests Commerce’s use of
these thresholds is unreasonable here.
VASEP next argues that Commerce’s thresholds are arbitrary. 	Respondent Pls.
VASEP and Individual VASEP Members’ Reply Br. 18, Dec. 3, 2015, ECF No. 89
(“VASEP Reply”). VASEP specifically argues that “Commerce has never explained why
when 65 percent of the allegedly targeted sales transactions meet the conditions for the
exceptional method, the method should only be applied to the transactions that meet the
exception, but when 67 percent meet the conditions the exceptional method must apply
to all sales transactions.” 	Id. 	However, such an argument is essentially an attack on
thresholds in general. The nature of a threshold is to treat two situations differently if they
each fall on either side of the threshold, even if one is at the very edge of the threshold.
That result is inherent in opting to employ the use of thresholds, but such a result is not
automatically arbitrary or unreasonable. 	Commerce’s use of the thresholds here is
reasonable so long as it offered a basis for the particular thresholds used, which it has.
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VASEP makes much of the fact that Commerce has applied A-T to sales that it
affirmatively determined were not differentially priced. Id. Commerce did find that a little
over 30% of Stapimex’s sales were not differentially priced. 	See Stapimex Prelim.
Analysis at 7–8; see also Prelim. I&D Memo at 19. 	However, as explained above,
Commerce determined that it is necessary to apply A-T to all sales to uncover dumping
masked by the differentially priced sales in such situations despite the fact that all sales
may not be differentially priced because of the extent of the respondent’s impermissible
pricing behavior. 	VASEP’s argument does not show that the thresholds used by
Commerce result in applying A-T where there is no pattern of export prices that differ
significantly among purchasers, regions, or time periods.
VASEP argues that the statutory text is clear that A-A shall ordinarily apply and
that the exceptional A-T method applies only if the criteria is met. See VASEP Reply 17–
18. 	Thus, VASEP argues that Commerce was required to limit its application of A-T to
the sales that were found to be differentially priced because, by testing all sales in the
analysis, Commerce found that the other sales have not met the requirements for the
exception. See id. The court does not agree. Commerce may apply A-T to a respondent
if its export sales reveal a pattern of export prices that differ significantly among
purchasers, regions, or time periods, and A-A cannot account for that pattern of significant
price differences. 	There is no additional requirement that Commerce must limit its
application of A-T only to those sales that contribute to the pattern of significant price
differences. VASEP additionally claims that there was no “finding based on the facts of
this record that the alleged targeting was so extensive or so pervasive that the exception
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method is the only ‘adequate yardstick.’” Id. at 18. However, Commerce did make such
a finding. Commerce found that Stapimex’s sales were so extensively differentially priced
that application of A-T to all sales was appropriate given that more than 66% of its sales
were differentially priced. Thus, VASEP’s text-based argument cannot withstand scrutiny.
VASEP additionally argues that Commerce has not “explained the reason for its
shift from limiting application of the A-T methodology to only sales at prices found to differ
significantly (Nails I), to a practice which first (Nails II) applied the A-T methodology to all
sales, and now applies A-T to all sales if its analysis shows differential pricing above the
66% level.” VASEP Br. 34. 	Specifically, VASEP argues that Commerce has failed to
explain why its differential pricing analysis differs from the previous Nails test in that the
former “(1) determine[s] the existence of differential pricing based both on high and low
prices which purportedly differ significantly; (2) appl[ies] the ratio test to all sales within
CONNUMs passing the Cohen’s d test above the mean; and (3) appl[ies] the A-T
methodology not only to sales above the mean of the CONNUMs passing Cohen’s d but
also to all sales when the 66% threshold is met.” 	Id. at 36–37. 	This claim is part and
parcel of VASEP’s argument that Commerce has failed to adequately explain its shift from
its previous targeted dumping analysis to its current differential pricing analysis, an
argument that VASEP failed to raise before Commerce and for which it failed to exhaust
its administrative remedies. 	In any event, a claim that the previous Nails test is
inconsistent with Commerce’s current differential pricing analysis does not preclude
Commerce from implementing its methodology. Cf. GPX Int’l Tire Corp. v. United States,
33 CIT 1368, 1373, 645 F. Supp. 2d 1231, 1238 (2009) (citing United States v. Eurodif
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S.A., 555 U.S. 305, 315 (2009)). 	Thus, VASEP’s argument that Commerce’s current
practice of applying A-T is inconsistent with its previous practice has no bearing on
whether Commerce has applied A-T here is reasonable.
Therefore, 	VASEP 	fails 	to 	demonstrate 	that 	Commerce’s 	thresholds 	and
application of A-T are unreasonable based on the record of this case.
VI. 	VASEP 	is 	Precluded 	From 	Arguing 	That 	Commerce 	Misapplied 	the
Bangladesh Inflator Index According to its Practice
VASEP claims that Commerce deviated from its practice because it failed to
“convert U.S. denominated UN COMTRADE data to Bangladeshi taka prior to indexing
for inflation using a Bangladeshi inflator.” VASEP Br. 45; see also MPG Final Analysis at
Ex. 3. 	In response, Defendant invokes the exhaustion doctrine. 	See Def.’s Resp. 85.
Defendant notes that Stapimex and MPG argued before Commerce that Commerce was
required to apply the U.S. inflation rate to the UN Comtrade data rather than the
Bangladeshi inflation rate. 	See id. at 86; see also Stapimex Case Br. at 13–14;
Resubmission of Minh Phu Group’s Case Brief at 39–41. 	However, Defendant argues
that Stapimex and MPG did not raise the separate argument relating to the manner in
which Commerce applied the Bangladeshi inflator index to the UN Comtrade, specifically
that Commerce did not convert to taka prior to inflating the data. 	See Def.’s Resp. 85–
86. Defendant further provides that none of the exceptions to the exhaustion requirement
apply and, “[c]onsequently, VASEP’s claim should be denied under the exhaustion
doctrine.” Id. at 88.
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Under the exhaustion requirement, as explained above, a litigant must exhaust its
administratively available remedies before the agency prior to judicial review of an agency
determination. 	See 19 U.S.C. § 2637(d); see also Consol. Bearings Co., 348 F.3d at
1003 (“[N]o one is entitled to judicial relief for a supposed or threatened injury until the
prescribed administrative remedy has been exhausted.”); Corus Staal BV, 502 F.3d at
1379. Here, the prescribed administrative remedy is, following the preliminary results, to
“present all arguments that continue . . . to be relevant to [Commerce’s] final determination
or final results, including any arguments presented before the date of publication of the
preliminary 	determination 	or 	preliminary 	results.” 	19 	C.F.R.
§ 351.309(c). 	Thus, parties generally must first allow Commerce an opportunity to
address any issues and cure errors in its determination prior to judicial review. 	See
Carpenter Tech. Corp., 30 CIT at 1374–75, 452 F. Supp. 2d at 1346 (citing Woodford,
548 U.S. at 88–90).
Before Commerce, Stapimex and MPG argued that Commerce did not follow its
practice because it used a Bangladeshi inflator index to account for inflation for U.S. dollar
denominated surrogate values derived from UN Comtrade data rather than using a U.S.
inflator index. 	See Stapimex Case Brief at 13–14; Resubmission of Minh Phu Group’s
Case Brief at 39–41; see also Final I&D Memo at 39–41. In the final results, Commerce
disagreed with Stapimex and MPG noting MPG and Stapimex mistakenly relied on a prior
practice that had been discontinued. 	See Final I&D Memo at 40–41. 	Commerce
explained that it reached its preliminary and final determinations based upon its current
practice as established in an administrative review of certain small diameter carbon and
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alloy seamless standard, line, and pressure pipe from Romania, which found that “‘U.S.
dollar-denominated surrogate values should be inflated based on the country in which the
expense was incurred, not the currency in which it was reported.’” 	Id. at 40 (quoting
Certain Small Diameter Carbon and Alloy Seamless Standard, Line, and Pressure Pipe
From Romania, 70 Fed. Reg. 7,237 (Dep’t Commerce Feb. 11, 2005) (final results of
antidumping 	duty 	administrative 	review) 	and 	accompanying 	Issues 	and 	Decision
Memorandum at Comment 7)). 	Thus, Commerce concluded that it had in fact acted in
accordance with its practice by applying the Bangladeshi inflator index to the U.S.
denominated surrogate values and did not make any changes to its calculations. See id.
at 40–41. Neither party raised any argument challenging Commerce’s current practice.
Here, however, VASEP does not argue that Commerce used the wrong inflator
index, but rather, argues that “Commerce did not as it claimed make the inflation
adjustment consistent with its practice in Seamless Pipe from Romania.” VASEP Br. 45.
Specifically, VASEP argues that Commerce misapplied the Bangladeshi inflator index to
the U.S. denominated surrogate values even according to its current practice because
“Commerce 	did 	not 	convert 	U.S. 	dollar-denominated 	UN 	COMTRADE 	data 	to
Bangladeshi taka prior to indexing for inflation using a Bangladeshi inflator.” 	Id.
Commerce was not given an opportunity to address the argument that it incorrectly
applied the Bangladeshi inflator index to the surrogate values denominated in U.S.
currency according to its current practice.
Moreover, none of the exceptions to the exhaustion requirement apply here. See
Corus Staal BV, 502 F.3d at 1378–81 (providing exceptional situations where the court
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may choose not to enforce the exhaustion requirement, including when raising the
argument before Commerce would be futile or when Commerce changes its position from
the preliminary to the final determination). 	Because VASEP failed to raise its objection
regarding the manner in which Commerce applied the Bangladeshi inflator index, the
court declines to consider the merits of VASEP’s challenge.
VII. 	Request for Voluntary Remand on Labor Wage Rate
In the Final Results, Commerce, in accordance with its recent practice, used
“industry-specific labor rates from the primary surrogate country.” Final I&D Memo at 47.
Commerce was unable to use data from its preferred source, Chapter 6A from the
International Labor Organization Yearbook of Labor Statistics, therefore, Commerce used
data published by the Bangladesh Bureau of Statistics (“BBS”) to value the FOP for labor.
See id. 	Ad Hoc Shrimp challenges Commerce’s reliance on the BBS data because it
claims the labor wage rate contained therein is aberrational due to labor abuses and thus
is not representative of the Vietnamese shrimp industry. See Ad Hoc Shrimp Br. 15–30.
Specifically, Ad Hoc Shrimp argues that Commerce failed to explain why the BBS data
was nonetheless reliable and non-distortive. 	See id. at 23–24. 	Thus, Ad Hoc Shrimp
argues that Commerce’s determination is unsupported by substantial evidence. See id.
at 29–30.
In response, Defendant requests a voluntary remand for Commerce to reconsider
Ad Hoc Shrimp’s specific arguments in connection with its challenge to Commerce’s
reliance on the BBS data to value the labor wage rate. 	See Def.’s Resp. 88–89. 	The
court has discretion to grant such a request when Commerce wishes to reconsider its
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previous position without confessing error. 	SKF USA Inc. v. United States, 254 F.3d
1022, 1029 (Fed. Cir. 2001). 	“Generally, a request for a voluntary remand due to
substantial and legitimate agency concerns should be granted.” 32 Timken Co. v. United
States, 38 CIT __, __, Slip Op. 14-51, *5 (May 2, 2014) (citing SKF USA Inc., 254 F.3d at
1029). 	Commerce has substantial and legitimate concerns if (1) there is a compelling
justification for remand, (2) that justification is not outweighed by the need for finality, and
(3) the scope of the requested remand is appropriate. 	Ad Hoc Shrimp Trade Action
Committee v. United States, 37 CIT __, __, 882 F. Supp. 2d 1377, 1381 (2013).
Here, Defendant’s request for voluntary remand satisfies the three-pronged test
and Commerce’s concerns are substantial and legitimate. 	First, a remand request for
Commerce to correct a potentially erroneous calculation of a dumping margin is a
compelling justification. 	Baroque Timber Indus. (Zhongshan) Co. v. United States, 37
CIT __, __, 925 F. Supp. 2d 1332, 1339 (2013) (citing Parkdale Int’l v. United States, 475
F.3d 1375, 1380 (Fed. Cir. 2007)). 	Second, the need for finality does not outweigh the
need to calculate accurate margins, especially in the context of an administrative review.
See id. at __, 925 F. Supp. 2d at 1338–39. 	Moreover, Ad Hoc Shrimp supports
Defendant’s request for voluntary remand and no other party has objected to Defendant’s
request. 	See Reply by Ad Hoc Shrimp Trade Action Committee to Def.’s Mem. Resp.
Pls.’ Mots. J. Agency R. Under USCIT Rule 56.2 1, Dec. 3, 2015, ECF No. 88. And third,
32 Although the court may refuse to grant Commerce’s request for remand if the request is
frivolous or in bad faith, the court presumes Commerce to have acted in good faith unless there
is evidence that suggests otherwise. 	See Ad Hoc Shrimp Trade Action Committee v. United
States, 37 CIT __, __, 882 F. Supp. 2d 1377, 1381 (2013).
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the scope of Defendant’s remand request––for Commerce to reconsider Ad Hoc Shrimp’s
arguments concerning Commerce’s reliance on Bangladeshi labor wage rate data––is
appropriate for this issue. 	Accordingly, Defendant’s remand request for Commerce to
reconsider Ad Hoc Shrimp’s arguments concerning the labor wage rate is based on a
substantial and legitimate concern, and is therefore granted.
CONCLUSION
The court grants Defendant’s request for voluntary remand to Commerce to
reconsider its use of the BBS data to value labor. 	The court sustains the Final Results
and Amended Final Results in all other respects. In accordance with the foregoing, it is
hereby
ORDERED that Commerce’s determination is remanded for further consideration
consistent with this opinion; and it is further
ORDERED that Commerce shall file its remand determination with the court within
45 days of this date; and it is further
ORDERED that Plaintiffs and Consolidated Plaintiffs shall have 30 days thereafter
to file comments; and it is further
ORDERED 	that 	Defendant 	and 	Defendant-Intervenor 	shall 	have 	15 	days
thereafter to file their replies to comments on the remand determination.
/s/ Claire R. Kelly
Claire R. Kelly, Judge
Dated: April 6, 2016
New York, New York
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