AD HOC SHRIMP TRADE ACTION 

COMMITTEE,

Plaintiff,

v. 

UNITED STATES, 

Defendant.

Slip Op. 16 - 

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION

[affirming the Department of Commerce’s redetermination on 

remand]

Dated: January 21, 2016 

Andrew W. Kentz, Jordan C. Kahn, and Roop K. Bhatti, 

Picard Kentz & Rowe LLP, of Washington, DC, for the Plaintiff. 

Joshua E. Kurland, Trial Attorney, Commercial 

Litigation Branch, Civil Division, U.S. Department of Justice, 

of Washington, DC, for the Defendant. Also 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 Melissa M. 

Brewer, Attorney, Office of the Chief Counsel for Trade 

Enforcement and Compliance, U.S. Department of Commerce, of 

Washington, DC. 

Pogue, Senior Judge: This action arises from the 

seventh administrative review by the U.S. Department of Commerce 

(“Commerce”) of the antidumping duty order (“the order”) on 

certain frozen warmwater shrimp from the People’s Republic of 

Before: Donald C. Pogue, 

Senior Judge 

Court No. 13-00346
Court No. 13-00346 Page 2 

China (“PRC” or “China”).1 In this seventh review, Commerce 

determined to revoke the order with respect to respondent 

Zhanjiang Regal Integrated Marine Resources Company, Limited 

(“Regal”).2

Adjudicating appeals from Plaintiff Ad Hoc Shrimp 

Trade Action Committee (“AHSTAC”) – an association of domestic 

warmwater shrimp producers that participated in this seventh 

review3 – this Court remanded Commerce’s determination to revoke 

the order as to Regal, ordering the agency to reconsider certain 

surrogate value data used to determine Regal’s normal value.4

The agency’s Remand Results are now before the court.5

The parties now raise two issues. First, Commerce 

protests an aspect of the court’s holding in ordering remand in 

1 See Certain Frozen Warmwater Shrimp from the [PRC], 78 Fed. 

Reg. 56,209 (Dep’t Commerce Sept. 12, 2013) (final results of 

administrative review; 2011-2012) (“AR7 Final Results”) and 

accompanying Issues & Decision Mem., A-570-893, ARP 11-12 

(Sept. 12, 2013) (“AR7 I&D Mem.”). 

2 AR7 Final Results, 78 Fed. Reg. at 56,209-10. 

3 See Compl., ECF No. 2, at ¶ 7.

4 Ad Hoc Shrimp Trade Action Comm. v. United States, __ CIT __, 

70 F. Supp. 3d 1328 (2015) (“AHSTAC I”). While relevant 

background is summarized below, familiarity with AHSTAC I is 

presumed.

5 Final Results of Redetermination Pursuant to Ct. Remand, 

ECF No. 65 (“Remand Results”).
Court No. 13-00346 Page 3 

AHSTAC I.6 Second, AHSTAC challenges Commerce’s selection, in 

the Remand Results, of a certain surrogate value for one of the 

factors of production used to construct Regal’s normal value.7

The court has jurisdiction pursuant to 

Section 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as 

amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),8 and 28 U.S.C. 

§ 1581(c) (2012). 

As explained below, Commerce’s redeterminations on 

remand are supported by a reasonable reading of the record 

evidence, and are therefore sustained. 

BACKGROUND

Antidumping duty orders are imposed on imported 

merchandise that is sold at prices below normal value (i.e., 

“dumped”).9 “[N]ormal value” is usually the price at which a 

foreign producer’s like products are sold in the exporting 

country or, for merchandise originating in non-market economies 

(“NMEs”), a value calculated using appropriate surrogate market 



6 Id. at 1, 7. 

7 Pl. [AHSTAC]’s Comments on Final Results of Redetermination 

Pursuant to Ct. Order, ECF No. 70 (“Pl.’s Br.”).

8 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. 

9 See 19 U.S.C. §§ 1673; 1677(34); 1677(35)(A); 1677b. 
Court No. 13-00346 Page 4 

economy data.10 Such orders are regularly administratively 

reviewed by Commerce, such that the agency determines 

producer/exporter-specific dumping margins, covering discrete 

(typically one-year) time periods, by making contemporaneous 

normal value to export price comparisons.11 Pursuant to a 

regulation in effect at the time of the administrative review at 

issue here, Commerce was authorized to revoke the order with 

respect to particular exporters/producers if Commerce found,

inter alia, that such an exporter/producer had not “sold the 

merchandise at . . . less than normal value for a period of at 

least three consecutive years.”12 Here, Regal requested companyspecific revocation pursuant to this regulation.13

By the time of Commerce’s decision regarding Regal’s 

request, Regal had been individually examined in the sixth and 



10 See id. at §§ 1677b(a)(1)(B)(i), 1677b(c).

11 See id. at § 1675(a).

12 19 C.F.R. § 351.222(b)(2)(i)(A) (2012). This regulatory 

provision was subsequently revoked for administrative reviews 

initiated on or after June 20, 2012. Modification to Regulation 

Concerning the Revocation of Antidumping and Countervailing Duty 

Orders, 77 Fed. Reg. 29,875, 29,876 (Dep’t Commerce 

May 21, 2012). As the review at issue here was initiated on 

April 30, 2012, the regulation was still in effect. 

See Initiation of Antidumping and Countervailing Duty 

Administrative Reviews and Request for Revocation in Part, 

77 Fed. Reg. 25,401, 25,403 (Dep’t Commerce Apr. 30, 2012). 

13 See AR7 I&D Mem., supra note 1, cmt. 2 at 6. 
Court No. 13-00346 Page 5 

seventh reviews, and received zero percent dumping margins in 

both proceedings.14 Regal was not, however, individually 

examined in the fifth review;15 rather, it was assigned a zero 



14 Where it is not practicable to make individual weighted 

average dumping margin determinations for each known exporter 

and producer of the subject merchandise for whom review was 

requested, Commerce may limit its individualized examination to 

a smaller number of companies, 19 U.S.C. § 1677f-1(c)(2), and 

assign to the remaining respondents the “all-others” rate 

(calculated in accordance with 19 U.S.C. § 1673d(c)(5)) or, 

where appropriate, the NME countrywide rate. 

See Jiangsu Jiasheng Photovoltaic Tech. Co. v. United States, 

__ CIT __, 28 F. Supp. 3d 1317, 1339-40 n.107 (2014). Regal was 

individually examined in the sixth and seventh administrative 

reviews of this order. Certain Frozen Warmwater Shrimp from the 

[PRC], 77 Fed. Reg. 12,801, 12,801 (Dep’t Commerce Mar. 2, 2012) 

(preliminary results, partial rescission, extension of time 

limits for the final results, and intent to revoke, in part, of 

the sixth antidumping duty administrative review) (explaining 

that Commerce selected Regal for individual examination in the 

sixth review) (unchanged in 77 Fed. Reg. 53,856 (Dep’t Commerce 

Sept. 4, 2012) (final results, partial rescission of sixth 

antidumping duty administrative review and determination not to 

revoke in part) and accompanying Issues & Decision Mem., A-570-

893, ARP 10-11 (Aug. 27, 2012) (“AR6 I&D Mem.”)); Decision Mem. 

for Prelim. Results, Partial Rescission of Antidumping Duty 

Admin. Review, Certain Frozen Warmwater Shrimp from the [PRC], 

A-570-893, ARP 11-12 (Mar. 12, 2013) (“AR7 Prelim. Decision 

Mem.”) at 3 (explaining that Commerce selected Regal for 

individual examination in the seventh review) (adopted in 

78 Fed. Reg. 15,696, 15,696 n.1 (Dep’t Commerce Mar. 12, 2013) 

(preliminary results of administrative review; 2011-2012) 

(unchanged in AR7 Final Results, 78 Fed. Reg. 56,209)).

15 Certain Frozen Warmwater Shrimp from the [PRC], 76 Fed. Reg. 

8338, 8341 (Dep’t Commerce Feb. 14, 2011) (preliminary results 

and preliminary partial rescission of fifth antidumping duty 

administrative review) (explaining that Commerce selected only 

one company for individual examination in the fifth review, 

which was not Regal) (unchanged in 76 Fed. Reg. 51,940 (Dep’t 

Commerce Aug. 19, 2011) (final results and partial rescission of 

(footnote continued) 
Court No. 13-00346 Page 6 

percent dumping margin based on its individually-calculated zero 

percent rate in the previous (fourth) review.16 Because Regal 

was not individually examined in the fifth review, Commerce, in 

the seventh review, requested from Regal information and sales 

data from the time period covered by that fifth review,17 “to 

confirm that Regal did not dump [subject merchandise] during 

that time,”18 and hence to confirm that Regal did not dump for 

three consecutive years, as required for revocation eligibility 

under the regulation.19

Because Commerce considers China to be a non-market 

economy, the agency generally calculates normal value for Chinaoriginating merchandise using “the value of the factors of 

production utilized in producing the merchandise,” including “an 

amount for general expenses and profit plus the cost of 

containers, coverings, and other expenses” (collectively, the 

“FOPs”), from a surrogate market economy country.20



[fifth] antidumping duty administrative review) (“AR5 Final 

Results”)).

16 See AR5 Final Results, 76 Fed. Reg. at 51,942.

17 The period of review for that proceeding was February 1, 2009, 

through January 31, 2010. Id. at 51,940. 

18 AR7 I&D Mem., supra note 1, cmt. 2 at 6. 

19 See 19 C.F.R. § 351.222(b)(2)(i)(A).

20 See 19 U.S.C. § 1677b(c)(1); [Commerce’s] Post-Prelim. 

(footnote continued) 
Court No. 13-00346 Page 7 

 As this Court explained in AHSTAC I: 

Because Commerce’s selection of an appropriate 

surrogate market economy must be such that the chosen 

dataset provides the best available information for 

approximating the NME producers’ experience, Commerce 

chooses a primary surrogate country that is 

economically comparable to the NME country (measured 

in terms of the countries’ comparative per capita 

gross national income (‘GNI’)), is a significant 

producer of comparable merchandise, and provides 

publicly-available, reliable, and relevant data.21

Commerce originally chose India as the appropriate 

surrogate market economy country for China during the period 

covered by the fifth review.22 Although AHSTAC successfully 



Analysis for [Regal] and [Another Resp’t], Certain Frozen 

Warmwater Shrimp from the [PRC], A-570-893, ARP 11-12 (May 20, 

2013), reproduced in App. to Def.’s Resp. in Opp’n to Pl.’s Mot. 

for J. Upon the Agency R., ECF Nos. 55 (conf. version) & 56 

(pub. version) at Tab 7 (“Regal Post-Prelim. Mem.”) at 3 

(unchanged in the AR7 Final Results, 78 Fed. Reg. at 56,210).

Although the statute permits Commerce to source its data from 

multiple surrogate market economies, see 19 U.S.C. 

§ 1677b(c)(1), Commerce normally values all factors of 

production using reliable data from a single surrogate market 

economy country, if possible, see 19 C.F.R. § 351.408(c)(2); 

Clearon Corp. v. United States, Slip Op. 13-22, 2013 WL 646390, 

at *6 (CIT Feb. 20, 2013) (noting that Commerce’s regulatory 

“preference for the use of a single surrogate country” is 

reasonable because, “as Commerce points out, deriving the 

surrogate data from one surrogate country limits the amount of 

distortion introduced into its calculations”) (quotation marks 

and citation omitted).

21 AHSTAC I, __ CIT at __, 70 F. Supp. 3d at 1336 (quotation 

marks and citations omitted). 

22 Issues & Decision Mem., Certain Frozen Warmwater Shrimp from 

the [PRC], A-570-893, ARP 09-10 (Aug. 12, 2011) (adopted in AR5 

Final Results, 76 Fed. Reg. at 51,940) (“AR5 I&D Mem.”) cmt. 2 

(footnote continued) 
Court No. 13-00346 Page 8 

challenged that choice of surrogate for the fifth review,23 the 

issue was subsequently rendered moot and accordingly was 

ultimately not revisited in that proceeding.24 And when, in the 

context of Regal’s seventh review revocation request, Commerce 

analyzed whether Regal sold subject merchandise at less than 

normal value during the fifth review period, Commerce again – 

despite the Court’s decision in China Shrimp AR5 – used India as 

the surrogate country for its analysis of Regal’s fifth review 

data.25

 However, as this Court also explained in AHSTAC I: 

In China Shrimp AR5, this Court held that Commerce 

acted arbitrarily in the fifth review by disregarding 

the concern that India’s per capita GNI was nearly a 

third of China’s during the relevant time period, 

whereas Thailand’s per capita GNI was nearly identical 

thereto, despite the record evidence that the quality 

of the available datasets from these two potential 

surrogates was nearly indistinguishable. . . .

Disregarding the court’s holding in China Shrimp AR5, 

Commerce did not consider or weigh the effect of the 

significant divergence between India and Thailand’s 

respective economic comparability to China when 



at 10. 

23 See Ad Hoc Shrimp Trade Action Comm. v. United States, 

__ CIT __, 882 F. Supp. 2d 1366, 1376 (2012) (“China Shrimp 

AR5”) (holding that “Commerce’s stated reasoning regarding the 

surrogate country selection in [the fifth] review [did] not 

comport with a reasonable reading of the record”). 

24 AHSTAC I, __ CIT at __, 70 F. Supp. 3d at 1333-34 (providing 

further detail in this regard).

25 AR7 I&D Mem., supra note 1, cmt. 2 at 6. 
Court No. 13-00346 Page 9 

determining, based on reasoning reiterated from the 

fifth review, that while the record provided adequate 

surrogate FOP datasets from both potential surrogates, 

the Indian dataset provided the best available 

information.26

The court therefore remanded Commerce’s seventh review 

analysis of Regal’s fifth review period sales. By continuing to 

use Indian surrogate data to arrive at the comparison normal 

values for that period, based on reasoning reiterated from the 

original fifth review:

[Commerce] ignore[d] this Court’s repeated holdings 

that where, as here, adequate data is available from 

more than one country that is both at a level of 

economic development comparable to the NME and a 

significant producer of comparable merchandise, 

Commerce must weigh the relative merits of such 

potential surrogates’ datasets in a way that does not 

arbitrarily discount the accuracy-enhancing value of 

sourcing surrogate data from a market economy whose 

economic development is as close as possible to that 

of the NME, and in that regard may provide the best 

available information.27



26 AHSTAC I, __ CIT at __, 70 F. Supp. 3d at 1336-37 (quotation 

and alteration marks and citations omitted). 

27 Id. at 1337-38 (quotation marks, footnote, and citations 

omitted); see also id. at 1338-39, 42 (“During the fifth review, 

Commerce found that both India and Thailand fell within a range 

of GNI values comparable to the per capita GNI of China, that 

both of these potential surrogates were significant producers of 

comparable merchandise, and that there existed on the record 

sufficient, publicly available surrogate factor information for 

the majority of FOPs from both India and Thailand that was of 

roughly equal specificity, and that otherwise satisfied the 

agency’s usual data-quality standards. But in deciding which of 

these two datasets would provide the best available information, 

Commerce (both in the original fifth review and in examining 

Regal’s fifth review pricing as part of its revocation analysis) 

(footnote continued) 
Court No. 13-00346 Page 10 

On remand here, Commerce reconsidered its surrogate 

country choice for the fifth review period, and “determined to 

select Thailand as the primary surrogate country [in light of] 

the proximity of Thailand’s per capita GNI to the PRC’s GNI and 

because the Thai surrogate value . . . data used to value 

Regal’s [FOPs] is superior.”28 With respect to one of the 

inputs, however – shrimp feed – the agency found that the Thai 

values were aberrational, and therefore unreliable, and 

accordingly determined to use alternative data from a secondary 



categorically and formulaically disregarded the evidence that 

the Indian data came from a country whose per capita GNI was 

barely a third of China’s, whereas the Thai data was from an 

economy whose per capita GNI was virtually identical to China’s.

Commerce’s refusal to account for the accuracy-enhancing value 

of relative GNI proximity when evaluating the relative merits of 

alternative satisfactory datasets, to determine which set 

constitutes the best available surrogate value information, is 

arbitrary and, therefore, unreasonable. . . . Accordingly, the 

agency’s reliance in this revocation proceeding upon its 

original fifth review analysis of surrogate dataset alternatives 

is not supported by substantial evidence, and must therefore be 

remanded for reconsideration.”) (internal quotation and 

alteration marks, footnote, and citations omitted). 

28 Remand Results, ECF No. 65, at 1; see also id. at 7 (“[A] 

comparison of the [fifth review period] per capita GNI of India, 

$1,070, Thailand, $2,840, and the PRC[,] $2,940, indicates that 

Thailand’s per capita GNI is closer to the PRC’s per capita GNI 

than India’s per capita GNI. For this reason, and for the data 

considerations explained below, we now rely on Thai [surrogate 

value] data to value Regal’s inputs in [the fifth review 

period].”).
Court No. 13-00346 Page 11 

surrogate country – Indonesia.29 AHSTAC now challenges this 

latter determination.30

Because Commerce protests AHSTAC I,31 the court will 

first review its prior holding.32 Accordingly, following a brief 

statement of the relevant standard of review, this opinion will 

discuss AHSTAC I in light of the Remand Results. The court will 

then address AHSTAC’s challenge to the Remand Results.

STANDARD OF REVIEW 

The court upholds Commerce’s antidumping 

determinations on remand if they are in accordance with law, 

consistent with the court’s remand order, and supported by 



29 Id. at 11-13.

30 Pl.’s Br., ECF No. 70, at 6-14.

31 See Remand Results, ECF No. 65, at 1 (“[P]ursuant to 

[AHSTAC I], we have, under protest, reconsidered the information 

on record and determined to select Thailand as the primary 

surrogate country . . . .”) (citing Viraj Grp., Ltd. v. United 

States, 343 F.3d 1371, 1376 (Fed. Cir. 2003)); id. at 7 

(“[Commerce] respectfully disagrees with the Court’s holding 

that the Department must consider the relative GNI differences 

of potential surrogate countries . . . .”).

32 Cf. GPX Int’l Tire Corp. v. United States, __ CIT __, 

942 F. Supp. 2d 1343, 1348 n.2 (2013) (“The only legitimate 

purpose of registering a protest in a remand determination is to 

preserve a particular issue for appeal where the agency has been 

compelled to take a particular step that results in an outcome 

not of its choosing.”).
Court No. 13-00346 Page 12 

substantial evidence.33 Substantial evidence is “such relevant 

evidence as a reasonable mind might accept as adequate to 

support a conclusion,”34 and the substantial evidence standard of 

review “can be translated roughly to mean ‘is [the 

determination] unreasonable?’”35

DISCUSSION

I. AHSTAC I and the Remand Results

In making its protest, Commerce mischaracterizes the 

court’s holding in AHSTAC I. According to Commerce, AHSTAC I 

requires the agency, in all instances, to “consider the relative 

GNI differences of potential surrogate countries that [Commerce] 

considers to be at the same level of economic comparability.”36

Instead what the court held in AHSTAC I is that, on the 

particular record presented here – i.e., where both India and 



33 See 19 U.S.C. § 1516a(b)(1)(B)(i); Camau Frozen Seafood 

Processing Imp. Exp. Corp. v. United States, __ CIT __, 

968 F. Supp. 2d 1328, 1334 (2014).

34 Consol. Edison Co. v. NLRB, 305 U.S. 197, 229 (1938) 

(citations omitted). 

35 Nippon Steel Corp. v. United States, 458 F.3d 1345, 1351 (Fed. 

Cir. 2006) (citation omitted, alteration in the original); 

On-Line Careline, Inc. v. America Online, Inc., 229 F.3d 1080, 

1085 (Fed. Cir. 2000) (“The substantial evidence standard 

requires the reviewing court to ask whether a reasonable person 

might find that the evidentiary record supports the agency’s 

conclusion.”) (citations omitted). 

36 See Remand Results, ECF No. 65, at 7.
Court No. 13-00346 Page 13 

Thailand satisfied the statutory criteria of economic 

comparability to the PRC and significant production of 

comparable merchandise, and where the quality and specificity of 

the respective Indian and Thai potential surrogate datasets were 

materially indistinguishable – Commerce unreasonably concluded 

that relative per capita GNI proximity to the PRC was entirely 

irrelevant when choosing between these otherwise 

indistinguishable datasets.37

As the court explained in AHSTAC I, Commerce’s 

conclusion “that significant ‘differences of quality of data 

sources’ adequately support the agency’s selection of Indian 

rather than Thai surrogate values” was not supported by the 

record evidence.38 Specifically, as Commerce acknowledges, “the 

record contain[ed] publicly available [fifth review period] 

surrogate factor information for the majority of FOPs from both 

India and Thailand,” and “the Indian and Thai import statistics 

did not allow [the agency] to distinguish between data from the 

two countries.”39 Nevertheless, claiming an unfounded lack of 



37 AHSTAC I, __ CIT at __, 70 F. Supp. 3d at 1337-42. 

38 Id. at 1339 (quoting AR7 I&D Mem., supra note 1, cmt. 2 

at 10).

39 Remand Results, ECF No. 65, at 8 (citing AR5 Final Results, 

76 Fed. Reg. 51,940, and accompanying AR5 I&D Mem., 

supra note 22, cmt. 2); see also AHSTAC I, __ CIT at __, 

(footnote continued) 
Court No. 13-00346 Page 14 

specificity in the Indian data, Commerce determined, in the 

original fifth review, that the Indian data provided the “best 

available information.”40 Commerce then adopted this fifth 

review reasoning when analyzing Regal’s fifth review sales in 



70 F. Supp. 3d at 1338 (“During the fifth review, Commerce found 

that both India and Thailand fell within a range of GNI values 

comparable to the per capita GNI of China, that both of these 

potential surrogates were significant producers of comparable 

merchandise, and that ‘[t]here exist[ed] on the record 

sufficient, publicly available surrogate factor information for 

the majority of FOPs from both India and Thailand’ that was ‘of 

roughly equal specificity,’ and that otherwise satisfied the 

agency’s usual data-quality standards.”) (quoting AR5 I&D Mem., 

supra note 22, cmt. 2 at 7 (alterations in AHSTAC I)).

 Indeed the two datasets were so nearly indistinguishable 

that Commerce resorted to “minute, seemingly hair-splitting 

differences” to determine the Indian data to be superior – 

finding that the Indian data for shrimp larvae (the critical 

input used by the sole mandatory respondent in the original 

fifth review but not used at all by Regal), though also of very 

similar quality to the Thai shrimp larvae data, did not specify 

the species of shrimp to which they pertained, whereas the Thai 

data were specific to a species of shrimp that the mandatory 

respondent in the fifth review did not produce. AHSTAC I, 

__ CIT at __, 70 F. Supp. 3d at 1340. 

 Commerce also attempted to distinguish the two datasets by 

determining that the Indian financial statement on record more 

closely approximated Regal’s experience, which was that of an 

integrated producer (i.e., a shrimp farmer as well as shrimp 

processor). Id. at 1341. But as the court noted in AHSTAC I, 

and as Commerce acknowledged in the Remand Results, this 

distinction between the datasets was not supported by the record 

because in fact the record contained evidence that the Thai 

financial statement was also from an integrated producer. Id.; 

Remand Results, ECF No. 65, at 9-10.

40 See AHSTAC I, __ CIT at __, 70 F. Supp. 3d at 1336, 1338-40; 

19 U.S.C. § 1677b(c)(1).
Court No. 13-00346 Page 15 

the context of the seventh review revocation proceeding.41 In 

this context, the court held that Commerce acted unreasonably 

when, in choosing between otherwise essentially 

indistinguishable datasets, the agency “completely (and 

categorically) ignored the biggest difference in quality between 

the two datasets, which is that the Thai data was from a market 

economy that very nearly mirrored China’s level of economic 

development . . ., whereas the Indian data reflected values 

present in an economy whose per capita GNI was multiple orders 

of magnitude lower than China’s.”42 Thus while Commerce is 



41 See AHSTAC I, __ CIT at __, 70 F. Supp. 3d at 1336-37 

(“Defendant argues that, in revisiting the issue in the context 

of Regal’s revocation request, Commerce recognized that the 

Court had previously remanded Commerce’s fifth review primary 

surrogate country selection, and that Commerce therefore 

reconsidered its surrogate country selection for the limited 

purpose of evaluating Regal’s revocation request. But in fact 

the agency itself explicitly states that Commerce did not

reconsider this matter. Specifically, Commerce explained that 

because it ultimately was not required to respond to the 

surrogate country issue, Commerce did not reexamine the issue of 

surrogate country selection and therefore continues to find 

India to be a reliable source for surrogate values for the 

calculation of normal value for the period covered by the fifth 

review.”) (emphasis in AHSTAC I) (quotation and alteration marks 

and citations omitted). 

42 Id. at 1341 (emphasis in original); see also id. at 1341 n.67 

(noting Commerce’s policy that “‘the closest country to [an 

NME]’s level of economic development’ is the country whose per 

capita GNI most closely approximates that of the NME”) (quoting 

Antidumping Methodologies in Proceedings Involving Non-Market 

Economy Countries: Surrogate Country Selection and Separate 

Rates, 72 Fed. Reg. 13,246, 13,247 (Dep’t Commerce Mar. 21, 

(footnote continued) 
Court No. 13-00346 Page 16 

correct that the statute does not require the agency to choose 

surrogate FOP data from a country that is most economically 

comparable to the NME43 – because the most economically

comparable country will not necessarily always provide the best 

available information – nevertheless where the competing 

datasets are otherwise indistinguishable, Commerce acts 

unreasonably if it “arbitrarily discount[s] the accuracyenhancing value of sourcing surrogate data from a market economy 

whose economic development is as close as possible to that of 

the NME, and in that regard may provide the ‘best available 

information.’”44

In protesting (its own misinterpretation of) the 

court’s holding, Commerce emphasizes its policy of “sequential 



2007) (alteration in AHSTAC I)).

43 Remand Results, ECF No. 65, at 5-6 (relying on 19 U.S.C. 

§§ 1677b(c)(1), (4)).

44 AHSTAC I, __ CIT at __, 70 F. Supp. 3d at 1337-38 (quoting 

19 U.S.C. § 1677b(c)(1)) (additional citations and footnote 

omitted); see also id. at 1336 (“In China Shrimp AR5, this Court 

held that Commerce acted arbitrarily in the fifth review by 

disregarding the concern that India’s per capita GNI was nearly 

a third of China’s during the relevant time period, whereas 

Thailand’s per capita GNI was nearly identical thereto, despite 

the record evidence that the quality of the available datasets 

from these two potential surrogates was nearly 

indistinguishable.”) (quotation and alteration marks and 

citations omitted).
Court No. 13-00346 Page 17 

consideration” of the surrogate country eligibility criteria.45

Specifically, Commerce’s policy is that the agency first 

considers economic comparability, creating a list of potential 

surrogates that are all “at a level of economic development 

comparable to that of the [NME],”46 as required by statute.47

Next, Commerce analyzes which of the countries on that list 

produce comparable merchandise to that covered by the proceeding 

in question.48 Then, the agency determines which of those 

countries are “significant” producers of such merchandise.49 And 

finally, “if more than one country has survived the selection 

process to this point,” then Commerce will choose from among the 

survivors “the country with the best [FOP] data.”50

As applied here, Commerce Policy 4.1 directs the 

agency to categorically disregard the relative per capita GNI 



45 Remand Results, ECF No. 65, at 5 (quoting Import Admin., U.S. 

Dep’t Commerce, Non–Market Economy Surrogate Country Selection 

Process, Policy Bulletin 04.1 (2004), available at 

enforcement.trade.gov/policy/bull04-1.html (last visited 

Jan. 15, 2016) (“Commerce Policy 4.1”)). 

46 19 U.S.C. § 1677b(c)(4)(A). 

47 See Commerce Policy 4.1, supra note 45, at “Economic 

Comparability.”

48 Id. at “Comparable Merchandise.” 

49 Id. at “Significant Producer”; see 19 U.S.C. § 1677b(c)(4)(B). 

50 Id. at “Data Considerations.”
Court No. 13-00346 Page 18 

differences among the potential surrogates once the initial list 

of countries satisfying the threshold economic comparability 

criterion is generated.51 In particular, this policy requires 

the agency to continue to disregard the potential surrogates’ 

relative per capita GNI proximity to the per capita GNI of the 

NME even where, as in China Shrimp AR5 and AHSTAC I, not only 

did more than one country survive all of the steps of the 

policy’s sequential analysis, but the quality of those 

countries’ respective FOP datasets was materially 

indistinguishable. In such cases, the categorical application 

of Commerce Policy 4.1 leads to the unreasonable result rejected 

by the court in AHSTAC I and China Shrimp AR5 where, forced to 

choose among two potential surrogates on the basis of data 

quality distinctions alone, “Commerce concluded that Indian data 

were superior to Thai data essentially based on a finding that a 

subset of the Indian data [was] more vague than its counterpart 

within the Thai data”52 (because, although the Indian data likely 



51 See id. at “Economic Comparability” (providing that once the 

agency generates the “list of potential surrogate countries that 

are at a comparable level of economic development to the NME 

country,” the countries on this list should thereafter “be 

considered equivalent in terms of economic comparability”) 

(footnotes omitted). Commerce’s sole exception to this sequence 

is not relevant here. See id. at “Exceptions to the Sequencing 

Procedure.”

52 China Shrimp AR5, __ CIT at __, 882 F. Supp. 2d at 1376 

(footnote continued) 
Court No. 13-00346 Page 19 

also pertained to a different species of shrimp than the one 

produced by the sole mandatory respondent in the original fifth 

review, the Indian data, unlike the Thai data, did not 

explicitly confirm this53), while entirely disregarding “the 

concern that India’s per capita GNI was nearly a third of 

China’s, whereas Thailand’s per capita GNI was nearly identical 

thereto.”54 In such cases, the categorical application of 

Commerce Policy 4.1 may therefore lead the agency to a choice of 

surrogate FOP values that does not comport with a reasonable 

reading of the record evidence, which is precisely what this 

Court held in China Shrimp AR5 and AHSTAC I. Accordingly, in 

cases where a strict application of Commerce Policy 4.1 would 

lead to an unreasonable result – such as where more than one 

potential surrogate satisfies all threshold criteria and their 

respective FOP datasets are materially indistinguishable – 

Commerce must consider all important aspects of what constitutes 

“the best available information”55 including, where appropriate, 



(citation omitted). 

53 See id. at n.15. 

54 Id. at 1376 (citation omitted). 

55 19 U.S.C. § 1677b(c)(1); cf. Motor Vehicle Mfrs. Ass’n 

v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29, 43 (1983) 

(stating that an agency acts arbitrarily when it fails to 

“consider an important aspect of the problem”).
Court No. 13-00346 Page 20 

the potential surrogates’ relative GNI proximity to the NME.

Despite its protest, however, on remand Commerce 

reexamined the fifth review period Indian and Thai surrogate FOP 

datasets and found that, unlike the original fifth review (where 

the datasets were compared to the production experience of the 

mandatory respondent in that proceeding), when the datasets are 

evaluated based on Regal’s production experience, the two are no 

longer materially indistinguishable, because in fact the 

available Thai data better approximate Regal’s production 

factors.56 Specifically, as the court noted in AHSTAC I, the 

critical input in Regal’s production of subject merchandise 

during the fifth review period was a different FOP than the 

input used by the mandatory respondent in the original fifth 

review analysis.57 Whereas the fifth review mandatory 



56 Remand Results, ECF No. 65, at 8-9; see AHSTAC I, __ CIT 

at __, 70 F. Supp. 3d at 1336 (noting that Commerce did not 

initially reconsider its original fifth review surrogate country 

analysis in the context of Regal’s company-specific revocation 

proceeding); id. at 1340 (holding that “Commerce’s reasoning 

that its original analysis in the fifth review supports its 

conclusion here that the Indian data [are] superior to the Thai 

data because the former more closely match[] Regal’s own FOPs 

and production process is not supported by a reasonable reading 

of the evidence”) (citation omitted).

57 AHSTAC I, __ CIT at __, 70 F. Supp. 3d at 1340; see Remand 

Results, ECF No. 65, at 8 (“In the underlying AR5 Final Results, 

. . . [Commerce] evaluated the surrogate factor information for 

valuing shrimp larvae because shrimp larvae was the critical 

input in the production of the subject merchandise for . . . the 

(footnote continued) 
Court No. 13-00346 Page 21 

respondent’s key input was shrimp larvae, for which the fifth 

review Indian and Thai data were very nearly indistinguishable,58

Regal’s key input was broodstock, an FOP for which the only 

available data on record was from Thailand.59

Finding that broodstock accounts for a significant 

portion of Regal’s fifth review normal value calculation, and 

that the Thai data were most specific with regard to this input, 

Commerce therefore concluded on remand that the fifth review 

Thai surrogate data offered the best available information,60

because Thailand satisfied the threshold statutory criteria of 

economic comparability to China and significant production of 



sole mandatory respondent in that review. As noted by the 

Court, Regal does not purchase shrimp larvae; rather, it uses 

broodstock as its key physical input.”) (citations omitted).

58 See AHSTAC I, __ CIT at __, 70 F. Supp. 3d at 1340. 

59 See id.; Remand Results, ECF No. 65, at 8 (“The only available 

[surrogate value] data on the record for broodstock is from 

Thailand.”) (citation omitted). As noted in AHSTAC I, Commerce 

also selected Thailand as the primary surrogate country for the 

following sixth and seventh reviews, __ CIT at __, 

70 F. Supp. 3d at 1340 n.60 (citations omitted), in which Regal 

was a mandatory respondent, see supra note 14 (providing 

relevant background and citations). 

60 See Remand Results, ECF No. 65, at 8-9 (explaining that 

“[Commerce] favors one country over another on the basis of 

surrogate value specificity where a surrogate value from one 

country representing a significant portion of normal value is 

more specific to a respondent’s input,” and choosing Thailand as 

“the appropriate surrogate country” because Regal’s “key 

physical input” was broodstock and only Thai data was available 

for that FOP) (citations omitted).
Court No. 13-00346 Page 22 

comparable merchandise,61 and because “the specificity offered by 

the Thai import data with respect to Regal’s broodstock is more 

specific to the input than any other [surrogate value] data on 

the record.”62

Accordingly, AHSTAC I’s holding – that Commerce acts 

unreasonably when, faced with two or more potential surrogate 

datasets that are otherwise materially indistinguishable, the 

agency categorically refuses to consider their relative GNI 

proximity to the NME as a criterion for choosing among them – is 

no longer implicated here, because Commerce no longer considers 

the two datasets involved here to be materially 

indistinguishable. Commerce’s protest is therefore irrelevant.

Moreover, because Commerce’s conclusion – that Thailand offers 

the best available surrogate FOP information for calculating 

Regal’s fifth review normal value because it satisfies the 

threshold statutory criteria and presents the most specific data 

with regard to a significant portion of Regal’s normal value – 

comports with a reasonable reading of the law and evidentiary 

record, it is sustained. 



61 Id. at 5 n.16, 6-7; see 19 U.S.C. § 1677b(c)(4). 

62 Remand Results, ECF No. 65, at 9. 
Court No. 13-00346 Page 23 

II. AHSTAC’s Challenge to the Remand Results

AHSTAC challenges Commerce’s selection, on remand, of 

a surrogate value for shrimp feed in its calculation of Regal’s 

normal value for the fifth review period.63 With regard to this 

FOP, Commerce concluded that all available Thai values on the 

record were aberrational and thus unreliable,64 and accordingly 

determined to use alternative data from a secondary surrogate 

country – Indonesia – to value this FOP.65 AHSTAC challenges 

this determination, arguing that Commerce instead should have 

used Thai shrimp feed data from the fourth review period, 

adjusted for inflation.66

While Commerce normally prefers to source all 

surrogate FOP values from a single (“primary”) surrogate 

country, the agency will use data from a different surrogate 

country “if data from the primary surrogate country are 

unavailable or unreliable.”67 “[W]here no suitable [surrogate 



63 Pl.’s Br., ECF No. 70, at 6-14; see Remand Results, 

ECF No. 65, at 11. 

64 Remand Results, ECF No. 65, at 11-12, 16.

65 Id. at 13, 17.

66 Pl.’s Br., ECF No. 70, at 7-14.

67 Remand Results, ECF No. 65, at 10 (quoting Jiaxing Bro. 

Fastener Co. v. United States, __ CIT __, 11 F. Supp. 3d 1326, 

[1332-33] (2014) (quoting Issues & Decision Mem., Sodium 

Hexametaphosphate from the [PRC], A-570-908, ARP 10-11 

(footnote continued) 
Court No. 13-00346 Page 24 

value] is available from the primary surrogate country,” 

Commerce uses surrogate data from “other countries that have 

been found to be significant producers of comparable merchandise 

and economically comparable to the NME country in question.”68

Here, although the parties agree that Commerce may use secondary 

surrogate country data when a particular FOP value from the 

primary surrogate is unreliable/aberrational,69 AHSTAC claims 



(Sept. 19, 2012) (adopted in 77 Fed. Reg. 59,375 (Dep’t Commerce 

Sept. 27, 2012) (final results of antidumping duty 

administrative review)) cmt. I at 4 (“It is [Commerce]’s well 

established practice to rely upon the primary surrogate country 

for all surrogate values, whenever possible, and to only resort 

to a secondary surrogate country if data from the primary 

surrogate country are unavailable or unreliable.”) (citations to 

prior determinations omitted))); see also Pl.’s Br., ECF No. 70, 

at 6 (discussing Commerce’s preference for “[u]sing reliable

data from the primary surrogate” to value all FOPs) (emphasis 

added) (quoting Clearon Corp., 2013 WL 646390, at *5 (quoting 

the agency’s brief in that case))).

68 Remand Results, ECF No. 65, at 12 (citing Issues & Decision 

Mem., Tapered Roller Bearings and Parts Thereof, Finished and 

Unfinished, from the [PRC], A-570-601, ARP 07-08 (Dec. 28, 2009) 

(adopted in 75 Fed. Reg. 844 (Dep’t Commerce Jan. 6, 2010) 

(final results of the 2007-2008 administrative review of the 

antidumping duty order)) (“TRBs from China”) cmt. 3; Issues & 

Decision Mem., Certain Cut-to-Length Carbon Steel Plate from 

Romania, A-485-803, ARP 02-03 (Mar. 7, 2005) (adopted in 70 Fed. 

Reg. 12,651 (Dep’t Commerce Mar. 15, 2005) (notice of final 

results and final partial rescission of antidumping duty 

administrative review)) cmt. 3).

69 See Remand Results, ECF No. 65, at 11 (“Although import 

statistics obtained from [the Global Trade Atlas (‘GTA’)] 

satisfy [Commerce]’s primary criteria for the suitability of 

[surrogate values] in antidumping proceedings involving NME 

countries, [Commerce] disregards GTA data for a certain factor, 

(footnote continued) 
Court No. 13-00346 Page 25 

that Commerce arbitrarily departed from its established practice 

by valuing the shrimp feed surrogate FOP for Regal’s fifth 

review normal value calculation using data from Indonesia,70 and 

that Commerce’s choice of the Indonesian data was not supported 

by substantial evidence.71

A. Commerce Reasonably Determined That The Fifth Review Thai 

Value for Shrimp Feed Was Aberrational. 

Both parties agree that Commerce’s established 

practice for determining whether a given surrogate value is 

aberrational, and therefore unreliable, is to “compare[] the 

surrogate value in question to the [Gobal Trade Atlas] average 

unit values calculated for the same period using data from the 

other potential surrogate countries [that satisfied the 

threshold statutory eligibility criteria], to the extent that 

such data are available.”72 Commerce also notes that the agency 



either in whole or in part, where there is reason to believe 

that the prices reflected in the import data may be unreliable.

[In such cases,] [Commerce] applies certain criteria to 

determine whether a surrogate value is aberrational.”) 

(citing TRBs from China, supra note 68, cmt. 3); Pl.’s Br., 

ECF No. 70, at 6-7 (discussing Commerce’s practice “for testing 

the reliability of surrogate values alleged to be 

aberrational”).

70 Pl.’s Br., ECF No. 70, at 4-10.

71 Id. at 10-14.

72 Remand Results, ECF No. 65, at 11 (citing Issues & Decision 

Mem., Carbazole Violet Pigment 23 from the [PRC], A-570-892, 

(footnote continued) 
Court No. 13-00346 Page 26 

has previously examined the primary surrogate’s data for the FOP 

value in question “over multiple years[,] to determine if the 

current data appear aberrational with respect to historical 

values.”73

Here, the Thai value for shrimp feed during the period 



ARP 07-08 (June 21, 2010) (adopted in 75 Fed. Reg. 36,630 (Dep’t 

Commerce June 28, 2010) (final results of antidumping duty 

administrative review)) (“CVP 23 from China”) cmt. 4; Certain 

Lined Paper Products from the [PRC], A-570-901, Investigation 

(Aug. 30, 2006) (adopted in 71 Fed. Reg. 53,079 (Dep’t Commerce 

Sept. 8, 2006) (notice of final determination of sales at less 

than fair value, and affirmative critical circumstances, in 

part)) cmt. 5); see also Pl.’s Br., ECF No. 70, at 7 (quoting 

Issues & Decision Mem., Multilayered Wood Flooring from the 

[PRC], A-570-970, ARP 11-12 (May 9, 2014) (adopted in 79 Fed. 

Reg. 26,712 (Dep’t Commerce May 9, 2014) (final results of 

antidumping duty administrative review; 2011-2012)) (“Wood 

Flooring from China”) cmt. 6 at 42 (“‘To test the reliability of 

the surrogate values alleged to be aberrational, [Commerce] 

compare[s] the selected surrogate value for each FOP to the 

[average unit values] calculated for the same period using data 

from the other surrogate countries [Commerce] designated for 

this review, to the extent that such data are available.’”) 

(quoting Issues & Decision Mem., Certain Hot-Rolled Carbon Steel 

Flat Products from Romania, A-485-806, ARP 02-03 (June 6, 2005) 

(adopted in 70 Fed. Reg. 34,448 (Dep’t Commerce June 14, 2005) 

(final results of antidumping duty administrative review)) 

(“Hot-Rolled Carbon Steel from Romania”) cmt. 2 at 19)).

73 Remand Results, ECF No. 65, at 11-12 (citing Issues & Decision 

Mem., Lightweight Thermal Paper from the [PRC], A-570-920, 

Investigation (Oct. 2, 2008) (adopted in 73 Fed. Reg. 57,329 

(Dep’t Commerce Oct. 2, 2008) (final determination of sales at 

less than fair value)) cmt. 10; Issues & Decision Mem., 

Saccharin from the [PRC], A-570-878, ARP 02-04 (Feb. 13, 2006) 

(adopted in 71 Fed. Reg. 7515 (Dep’t Commerce Feb. 13, 2006) 

(final results and partial rescission of antidumping duty 

administrative review)) cmt. 5).
Court No. 13-00346 Page 27 

covered by the fifth review was 25.50 U.S. dollars per kilogram 

(“USD/kg”).74 Of the other potential surrogate countries that 

satisfied the threshold eligibility criteria, only three 

provided usable shrimp feed data: Indonesia, which had a value 

for shrimp feed during the period covered by the fifth review of 

1.23 USD/kg; India, which provided a fifth review value of 

1.36 USD/kg for this FOP; and the Philippines, which provided a 

fifth review value of 0.12 USD/kg for this FOP.75 Additionally, 

the historical Thai values for this FOP varied significantly; 

these values were 2.60 USD/kg (during the period covered by the 

fourth review), 14.50 USD/kg (during the period covered by the 

sixth review), and 26.83 USD/kg (during the period covered by 

the seventh review),76 such that “the Thai [average unit values] 

for shrimp feed over the periods examined ranged from 2.6[0] to 



74 Id. at 12 (citing Ex. 2.b to Surrogate Factor Valuations for 

the Prelim. Results, Certain Frozen Warmwater Shrimp from the 

[PRC], A-570-893, ARP 11-12 (Mar. 4, 2012), reproduced in App. 

of Docs. in Supp. of Def.’s Resp. to Pl.’s Remand Comments, 

ECF No. 76 (“Def.’s Remand App.”) at Tab 3 (“AR7 Prelim. SV 

Mem.”); [AHSTAC’s] Submission of Publicly Available Info. to 

Value Factors of Production, Certain Frozen Warmwater Shrimp 

from the [PRC], A-570-893, ARP 11-12 (Sept. 24, 2012), 

reproduced in Def.’s Remand App., ECF No. 76 at Tab 1 (“AHSTAC’s 

SV Submission”), at Attach. 2).

75 Id. at 13 (citing Ex. 2.b to AR7 Prelim. SV Mem., ECF No. 76 

at Tab 3). 

76 Id. at 12 (citing Ex. 2.b to AR7 Prelim. SV Mem., ECF No. 76 

at Tab 3; AHSTAC’s SV Submission, ECF No. 76 at Tab 1, 

at Attach. 2).
Court No. 13-00346 Page 28 

26.83 USD/kg, while the [average unit values] for the other 

[potential surrogates satisfying the threshold eligibility 

criteria] ranged from 0.13-0.51 USD/kg (Philippines), 

0.92-1.29 USD/kg (Indonesia)[,] [and] 1.30-1.37 USD/kg (India) 

during the same periods.”77 Comparing the Thai fifth review 

shrimp feed FOP value of 25.50 USD/kg to this historical data, 

as well as to the contemporaneous fifth review values for this 

FOP from the other potential surrogates, Commerce concluded that 

the 25.50 USD/kg Thai fifth review value for shrimp feed was 

aberrational and therefore unreliable.78

AHSTAC does not appear to contest Commerce’s finding 

that the Thai shrimp feed value for the fifth review period was 

aberrational. Instead, AHSTAC argues that Commerce should have 

taken AHSTAC’s suggestion to use the Thai shrimp feed value for 

the fourth review period, 2.60 USD/kg, rather than the 

contemporaneous fifth review value, and applied the aberration 

test solely to that value, in isolation from the other 



77 Id. at 16 (citing Ex. 2.b to AR7 Prelim. SV Mem., ECF No. 76 

at Tab 3; AHSTAC’s SV Submission, ECF No. 76 at Tab 1, 

at Attach. 2). 

78 Id. at 12 (“[B]ecause the Thai import data for shrimp feed 

appears to be aberrational based on historical data and 

contrasting against imports made during the [fifth review 

period] by [the other potential surrogates], [Commerce] has 

looked to other potential sources by which to value shrimp 

feed.”).
Court No. 13-00346 Page 29 

historical Thai data showing that the Thai feed values were 

generally unreliably volatile during the relevant historical 

period - i.e., AHSTAC argues that Commerce should have compared 

the 2.60 USD/kg fourth review Thai value to the other fourth 

review values available to find that it was not aberrational, 

and then used that fourth review Thai value (adjusted for 

inflation) for the fifth review normal value calculation.79

But although AHSTAC contends that “[t]he question 

confronted by Commerce was whether the Thai [fourth review] 

shrimp feed value was aberrational,”80 in fact the question 

before Commerce was whether the Thai fifth review value was 

aberrational and, if so, which secondary surrogate FOP data 

provide a reasonably reliable alternative.81 Here, consistent 



79 See Pl.’s Br., ECF No. 70, at 7-10.

80 Id. at 9.

81 See Remand Results, ECF No. 65, at 11, 14-15; CVP 23 from 

China, supra note 72, cmt. 4 at 13-14 (“[19 U.S.C. 

§ 1677b(c)(1)] directs [Commerce] to use the ‘best available 

information’ on the record when selecting surrogate values with 

which to value FOPs. In this regard, [Commerce]’s practice is 

to choose surrogate values that represent[, inter alia,] . . . 

prices that are contemporaneous with the [period of review]

. . . . If [the record] presents sufficient evidence to 

demonstrate [that] a particular surrogate value is not viable, 

[Commerce] will assess all relevant price information on the 

record . . . in order to accurately value the input in 

question.”) (emphasis added); see also Wood Flooring from China, 

supra note 72, cmt. 6 (quoted in Pl.’s Br., ECF No. 70, at 7) at 

40 (noting that among the “critical elements” of Commerce’s test 

(footnote continued) 
Court No. 13-00346 Page 30 

with AHSTAC’s formulation of the agency’s practice in this 

regard, Commerce “compared the [Thai fifth review] surrogate 

value for [the shrimp feed] FOP to the [average unit values] 

calculated for the same period using data from the other 

surrogate countries [that Commerce] designated for this 

review.”82 Commerce reasonably found that the 25.50 USD/kg Thai 

fifth review value was aberrational when compared with the other 

available fifth review surrogate values of 0.12, 1.23, and 

1.36 USD/kg.83 As this finding is both reasonable and 

uncontested,84 it is sustained. The next question before the 

court, therefore, is whether Commerce’s choice of the 

alternative Indonesian surrogate data for this fifth review FOP 

was reasonable.

B. Commerce’s Choice of Indonesian Fifth Review Shrimp 

Feed Data Was Reasonable. 

Having found the Thai fifth review shrimp feed data to 

be unreliable, Commerce determined to value this FOP using 



for surrogate FOP data reliability in NME proceedings is 

“contemporane[ity] with the [period of review]”). 

82 See Pl.’s Br., ECF No. 70, at 7 (quoting Wood Flooring from 

China, supra note 72, cmt. 6 at 42 (quoting Hot-Rolled Carbon 

Steel from Romania, supra note 72, cmt. 2 at 19)); 

Remand Results, ECF No. 65, at 12-13.

83 See Remand Results, ECF No. 65, at 12-13. 

84 See supra note 79 and accompanying text.
Court No. 13-00346 Page 31 

contemporaneous data from Indonesia, which was the second 

largest producer of comparable merchandise from the six 

countries determined to be economically comparable to China, and 

which provided the median available non-aberrational fifth 

review value for this FOP.85 AHSTAC again argues that Commerce 

should have chosen the fourth review Thai data, rather than the 

contemporaneous Indonesian data, to substitute for the 

aberrational fifth review Thai value.86

As Commerce has explained its established practice, 

however, “when a party claims that a particular surrogate is not 

appropriate to value the FOP in question, [Commerce] has 

determined that the burden is on that party to prove the 

inadequacy of said [surrogate value] or, alternatively, to show 

that another value is preferable.”87 Here, relying on Commerce’s 

regulatory preference for valuing all FOPs using data from the 

same surrogate country whenever possible,88 AHSTAC claims that 



85 See Remand Results, ECF No. 65, at 13. 

86 See Pl.’s Br., ECF No. 70, at 10-14. 

87 TRBs from China, supra note 68, cmt. 2 at 17 (citations 

omitted); see also Wood Flooring from China, supra note 72, 

cmt. 6 (quoted in Pl.’s Br., ECF No. 70, at 7) at 40 (“When a 

party claims that a particular [surrogate value] is not 

appropriate to value a certain FOP, the burden is on that party 

to provide evidence demonstrating the inadequacy of the 

[surrogate value].”) (citations omitted).

88 See 19 C.F.R. § 351.408(c)(2) (“[In NME cases, Commerce] 

(footnote continued) 
Court No. 13-00346 Page 32 

the fourth review Thai value for shrimp feed is preferable to 

Commerce’s chosen contemporaneous Indonesian value because all 

the other fifth review period surrogate FOP values in this case 

were from Thailand,89 and the 2.60 USD/kg fourth review shrimp 

feed value from Thailand was not aberrational,90 but “simply at 

the high end of a wide range of [contemporaneous] values for 

[the other potential surrogate] countries.”91 Commerce, however, 

concluded that AHSTAC did not meet its burden to demonstrate 

that the fourth review Thai value was preferable to the 



normally will value all factors [of production] in a single 

surrogate country.”); Pl.’s Br., ECF No. 70, at 5 (quoting 

Issues & Decision Mem., Certain Steel Nails from the [PRC], 

A-570-909, ARP 10-11 (Mar. 5, 2013) (adopted in 78 Fed. Reg. 

16,651 (Dep’t Commerce Mar. 18, 2013) (final results of third 

antidumping duty administrative review; 2010-2011)) cmt. 1.D.d 

[at 13] (“It is most accurate to rely on factor costs from a 

single surrogate country because sourcing data from a single 

country . . . enables [Commerce] to capture the complete 

interrelationship of factor costs that a producer in the primary 

surrogate country faces. [Commerce] only resorts to other 

surrogate country information if the record does not contain a 

value for a factor from the primary surrogate, or if a primary 

surrogate country value on the record is determined, based on 

record evidence, to be aberrational or unreliable.”) (citation 

omitted)).

89 See, e.g., Pl.’s Br., ECF No. 70, at 10 (arguing that given 

“Commerce’s established practice and codified regulatory 

preference for a single surrogate country,” the Thai fourth 

review value was preferable because “[Commerce] selected 

Thailand as the surrogate country for purposes of calculating 

normal values during the [fifth review period] in the remand”). 

90 Id. at 8, 10-14.

91 Id. at 8. 
Court No. 13-00346 Page 33 

contemporaneous non-aberrational Indonesian value selected by 

the agency, because the fourth review Thai value was (A) not 

contemporaneous with the fifth review period under 

consideration; and (B) “nested in the wider overall pattern of 

great variability” over the course of the time periods examined 

(the fourth through the seventh reviews), in stark contrast to 

“the stability exhibited in the data from the other [potential 

surrogate] countries” over the same time periods.92

Specifically, Commerce “compared the shrimp feed 

values over the same review periods with respect to the 

potential surrogate countries relative to Thailand,”93 comparing 

the Thai fourth, fifth, sixth, and seventh review data to data 

from the Philippines, India, and Indonesia (the other potential 

surrogates satisfying the threshold eligibility criteria) for 

the fourth, fifth, and sixth review periods.94 Based on this 

analysis, Commerce concluded that “Indonesia has the best import 

prices for shrimp feed during the [fifth review period] from 

among the potential surrogate countries that are at [a 

comparable] level of economic development [to] the PRC and are 

significant producers of comparable merchandise,” whereas “the 



92 Remand Results, ECF No. 65, at 16-17.

93 Id. at 15.

94 Id.
Court No. 13-00346 Page 34 

imports of shrimp feed into Thailand for the periods [of the 

fourth, fifth, sixth, and seventh reviews were] aberrational 

based on extreme [average unit value] volatility.”95

Because “the Thai [average unit values] for shrimp 

feed over the periods examined ranged from 2.6[0] to 26.83 

USD/kg, while the [average unit values] for the other [potential 

surrogates satisfying the threshold eligibility criteria] ranged 

from 0.13-0.51 USD/kg (Philippines), 0.92-1.29 USD/kg 

(Indonesia)[,] [and] 1.30-1.37 USD/kg (India) during the same 

periods,”96 Commerce determined that given this “overall pattern 

of great variability, particularly [in light of] the stability 

exhibited in the data from the other [potential surrogate] 

countries,” the “Thai import data for shrimp feed is unreliable 

as a whole.”97 On the record presented here, this conclusion was 

not unreasonable.98 While AHSTAC argues that Commerce 



95 Id. at 15-16 (citing Ex. 2.b to AR7 Prelim. SV Mem., 

ECF No. 76 at Tab 3).

96 Id. at 16 (citing Ex. 2.b to AR7 Prelim. SV Mem., ECF No. 76 

at Tab 3; AHSTAC’s SV Submission, ECF No. 76 at Tab 1, 

at Attach. 2). 

97 Id. (citing AR6 I&D Mem., supra note 14, cmt. 10; AR7 Prelim. 

Decision Mem., supra note 14, at 20-21 (unchanged in AR7 Final 

Results, 78 Fed. Reg. 56,209)).

98 See Consol. Edison, 305 U.S. at 229 (“[Substantial evidence] 

means such relevant evidence as a reasonable mind might accept 

as adequate to support a conclusion.”) (citations omitted); 

cf. Consolo v. Fed. Mar. Comm’n, 383 U.S. 607, 620 (1966) 

(footnote continued) 
Court No. 13-00346 Page 35 

“diverge[d] from agency practice” by not considering the fourth 

review Thai value in isolation from this wider pattern of 

volatility relative to the other potential surrogates’ data,99 in 

fact Commerce’s practice is to consider all case-specific facts 

and the totality of the evidence in order to select the 

surrogate values presenting the best available information when 

contemporaneous values from the primary surrogate are found to 

be unreliable.100 Commerce has done so here, and the record as a 



(“[Substantial evidence] is something less than the weight of 

the evidence, and the possibility of drawing two inconsistent 

conclusions from the evidence does not prevent an administrative 

agency’s finding from being supported by substantial evidence.”) 

(citations omitted).

99 See Pl.’s Br., ECF No. 70, at 8-10, 14.

100 Remand Results, ECF No. 65, at 14-15 (“When presented with 

sufficient evidence to demonstrate a particular [surrogate 

value] is aberrational, and therefore unreliable, [Commerce]

will examine all relevant price information on the record . . . 

in order to accurately value the input in question.”) (emphasis 

added) (citing Issues & Decision Mem., Certain Frozen Fish 

Fillets from the Socialist Republic of Vietnam, A-552-801, 

ARP 11-12 (Mar. 28, 2014) (adopted in 79 Fed. Reg. 19,053 (Dep’t 

Commerce Apr. 7, 2014) (final results of antidumping duty 

administrate review and new shipper review; 2011-2012)) cmt. V; 

Issues & Decision Mem., Polyethylene Terephthalate Film, Sheet, 

and Strip from the [PRC], A-570-924, ARP 12-13 (June 3, 2015) 

(adopted in 80 Fed. Reg. 33,241 (Dep’t Commerce June 11, 2015) 

(final results of antidumping duty administrative review and 

final determination of no shipments; 2012-2013)) cmt. 3); 

cf., e.g., Mittal Steel Galati S.A. v. United States, 

31 CIT 1121, 1124-25, 502 F. Supp. 2d 1295, 1299 (2007) 

(“Substantial evidence . . . requires weighing the totality of 

the evidence, to [make] factual findings [that] are reasonable 

when viewed in light of that complete record.”) (citing Ta Chen 

(footnote continued) 
Court No. 13-00346 Page 36 

whole reasonably supports the agency’s conclusion.

Accordingly, Commerce’s determination to value the 

shrimp feed FOP for the fifth review period using surrogate data 

from Indonesia (as the agency also did with regard to that FOP 

for the sixth and seventh review periods,101 determinations that 

are not contested here) is supported by substantial evidence, 

and is therefore sustained.

CONCLUSION

For all of the foregoing reasons, Commerce’s Remand 

Results are sustained. Judgment will issue accordingly.

 ___/s/ Donald C. Pogue_ __

Donald C. Pogue, Senior Judge 

Dated: January 21, 2016 

 New York, NY 

Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 1335 

(Fed. Cir. 2002); Nippon Steel, 458 F.3d at 1351).

101 Remand Results, ECF No. 65, at 12 (“[Commerce also] found the 

Thai [Global Trade Atlas] values for shrimp feed to be 

aberrational in [the sixth and seventh reviews].”) (citing 

AR6 I&D Mem., supra note 14, cmt. 10; AR7 Prelim. Decision Mem., 

supra note 14, at 20-21 (unchanged in AR7 Final Results, 78 Fed. 

Reg. 56,209)); id. at 13 (“[Commerce] used the Indonesian 

[surrogate value] for feed in [the sixth and seventh reviews].”) 

(citing AR6 I&D Mem., supra note 14, cmt. 10; AR7 Prelim. 

Decision Mem., supra note 14, at 20-21 (unchanged in AR7 Final 

Results, 78 Fed. Reg. 56,209)).