AD HOC SHRIMP TRADE ACTION 

COMMITTEE,

Plaintiff,

v. 

UNITED STATES, 

Defendant,

and

MINH PHU SEAFOOD CORP., et al., 

Defendant-Intervenors.

Slip Op. 14 - 

UNITED STATES COURT OF INTERNATIONAL TRADE 

OPINION

[affirming final results of administrative review of antidumping 

duty order] 

Dated:

Andrew W. Kentz, Jordan C. Kahn, and Nathaniel Maandig 

Rickard, 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. With him on the brief 

were Stuart F. Delery, Assistant Attorney General, Jeanne E. 

Davidson, Director, and Patricia M. McCarthy, Assistant 

Director. Of counsel on the brief was Mykhaylo Gryzlov, Senior 

1

 This action was previously consolidated with Nha Trang 

Seaproduct Co. v. United States, Ct. No. 12-00317, and Minh Phu 

Seafood Corp. v. United States, Ct. No. 12-00310, see Order 

Nov. 26, 2012, ECF No. 23, but the latter two actions were 

subsequently dismissed, see ECF No. 28.

Before: Donald C. Pogue, 

Chief Judge 

Court No. 12-003141

May 29, 2014

59
Court No. 12-00314 Page 2 

Attorney, Office of the Chief Counsel for Trade Enforcement and 

Compliance, U.S. Department of Commerce, of Washington, DC. 

Matthew R. Nicely and Alexandra B. Hess, Hughes 

Hubbard & Reed LLP, of Washington, DC, for the DefendantIntervenors.

Pogue, Chief Judge: This action arises from the sixth 

administrative review of the antidumping duty order covering 

certain frozen warmwater shrimp (the “subject merchandise”) from 

the Socialist Republic of Vietnam (“Vietnam”).2

 Plaintiff Ad Hoc 

Shrimp Trade Action Committee (“AHSTAC”)3

 challenges the final 

results of this review, claiming that the United States 

Department of Commerce (“Commerce”) made unreasonable 

determinations when calculating the home market or “normal” 

comparison values that the agency used to determine whether and 

to what extent the subject merchandise was dumped in the U.S. 

market during the relevant time period.4

 Specifically, AHSTAC 



2

 See Certain Frozen Warmwater Shrimp from the Socialist Republic 

of Vietnam, 77 Fed. Reg. 55,800 (Dep’t Commerce Sept. 11, 2012) 

(final results and final partial rescission of antidumping duty 

administrative review) (“Final Results”), as amended by 77 Fed. 

Reg. 64,102 (Dep’t Commerce Oct. 18, 2012) (amended final 

results and partial final rescission of antidumping duty 

administrative review) and accompanying Issues & Decision Mem., 

A-552-802, ARP 10-11 (Sept. 4, 2012) (“I & D Mem.”).

3

 AHSTAC is an association of manufacturers, producers, and 

wholesalers of a domestic like product in the United States that 

participated in this review. Compl., ECF No. 2, at ¶ 7. 

4

 See Mot. of [AHSTAC] for J. on the Agency R. Under USCIT 

Rule 56.2, Ct. No. 12-00310, ECF No. 35 (“AHSTAC’s Br.”).
Court No. 12-00314 Page 3 

contends that 1) Commerce unreasonably based its valuation of 

respondents’ factors of production on surrogate market-economy 

data from Bangladesh, rather than the Philippines5

; and 

2) Commerce unreasonably valued the relevant labor wage rates 

using data from a single surrogate market economy.

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) (2006),6

 and 28 U.S.C. 

§ 1581(c) (2006). 

 As explained below, because Commerce’s well-reasoned 

selection of Bangladesh as an appropriate market economy 

surrogate for Vietnam was supported by a reasonable reading of 

the record evidence, Commerce’s reliance on data from Bangladesh 

to construct normal values in this review is affirmed.

Additionally, because Commerce reasonably applied its lawful new 

policy when calculating surrogate labor rates in this 

proceeding, Commerce’s labor rate valuation is also affirmed.



5

 Because Commerce treats Vietnam as a non-market economy 

country, the agency determines the home market or normal value 

of merchandise from Vietnam by using surrogate market economy 

data to calculate production costs and profit. See infra

Section I.A of this opinion. 

6

 Further citations to the Tariff Act of 1930, as amended, are to 

the relevant provisions of Title 19 of the U.S. Code, 

2006 edition. 
Court No. 12-00314 Page 4 

STANDARD OF REVIEW

The court will sustain Commerce’s antidumping 

determinations if they are supported by substantial evidence and 

otherwise in accordance with law. See 19 U.S.C. 

§ 1516a(b)(1)(B)(i). Substantial evidence refers to “such 

relevant evidence as a reasonable mind might accept as adequate 

to support a conclusion,” SKF USA, Inc. v. United States, 

537 F.3d 1373, 1378 (Fed. Cir. 2008) (quoting Consol. Edison Co. 

v. NLRB, 305 U.S. 197, 229 (1938) (defining “substantial 

evidence”)), and the substantial evidence standard of review can 

be roughly translated to mean “is the determination 

unreasonable?” Nippon Steel Corp. v. United States, 458 F.3d 

1345, 1351 (Fed. Cir. 2006) (internal quotation and alteration 

marks and citation omitted).

DISCUSSION

I. Surrogate Country Selection 

First, AHSTAC claims that Commerce’s determination to 

estimate respondents’ market-value cost of producing the subject 

merchandise by relying on data from Bangladesh, rather than the 

Philippines, is unreasonable. AHSTAC’s Br. at 9, 13-18.

A. Background 

Because Commerce treats Vietnam as a non-market 

economy (“NME”) country, the agency determines the normal value 
Court No. 12-00314 Page 5 

of merchandise from Vietnam by using surrogate market economy 

data to calculate production costs and profit. See 19 U.S.C. 

§ 1677b(c)(1). In doing so, Commerce’s valuation of the factors 

of production (“FOPs”) must be “based on the best available 

information regarding the values of such factors in a market 

economy country or countries considered to be appropriate by the 

[agency].” Id. “[T]o the extent possible,” Commerce is required 

to use data from countries that are both economically comparable 

to the NME and significant producers of comparable merchandise. 

Id. at § 1677b(c)(4).

When choosing appropriate surrogate market economy 

countries, Commerce first creates a list of potential surrogates 

whose per capita gross national income (“GNI”) falls within a 

range of comparability to the GNI of the NME country (the 

“potential surrogates list”).7

 Next, Commerce identifies which 

countries on the potential surrogates list produce merchandise 

comparable to the merchandise subject to the antidumping duty 



7

 See 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 Apr. 30, 2014) (“Policy 4.1”). See also Fujian 

Lianfu Forestry Co. v. United States, 33 CIT 1056, 1075-76, 

638 F. Supp. 2d 1325, 1347-49 (2009) (discussing Commerce’s 

practice for creating the potential surrogates list and noting 

that “[a]lthough Commerce places primary emphasis on GNI when 

compiling its list of potential surrogate countries, it 

apparently does not set a fixed range into which a potential 

surrogate’s per capita GNI must fall”) (citation omitted).
Court No. 12-00314 Page 6 

order.8 After that, the agency determines “whether any of the 

countries which produce comparable merchandise are ‘significant’ 

producers of that comparable merchandise.”9

 Finally, “if more 

than one country has survived the selection process to this 

point, the country with the best [FOP] data is selected as the 

primary surrogate country.”10

Because Commerce’s policy is to treat all of the 

countries that were initially placed on the potential surrogates 

list as “equivalent in terms of economic comparability [to the 

NME country],” regardless of their relative GNI proximity 

thereto,11 a literal application of Policy 4.1 implies that 

Commerce will choose from among the potential surrogates that 

satisfy its selection criteria (i.e., economic comparability, 

significant production of comparable merchandise, and data 

availability) based solely on considerations of relative data 



8

 Policy 4.1. Commerce’s policy provides detailed examples of 

the agency’s process for determining whether merchandise that is 

not identical to the subject merchandise is nevertheless 

“comparable.” See id. 

9

 Id. (referring to 19 U.S.C. § 1677b(c)(4)). 

10 Id. (referring to 19 U.S.C. § 1677b(c)(1)).

11 Policy 4.1 (noting that this practice “reflects in large part 

the fact that the statute does not require [Commerce] to use a 

surrogate country that is at a level of economic development 

most comparable to the NME country”) (emphasis in original).
Court No. 12-00314 Page 7 

quality.12 This means that even very slight differences in data 

quality between the potential surrogates may become dispositive 

and automatically outweigh comparatively large differences among 

the candidates in terms of their economic comparability to the 

NME country and the magnitude of their production of comparable 

merchandise.13

In prior opinions, this Court has remanded Commerce’s 



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

__ CIT __, 882 F. Supp. 2d 1366, 1374 (2012) (“China Shrimp 

AR5”) (discussing “Commerce’s policy of disregarding relative 

GNI differences among potential surrogates for whom quality data 

is available and who are significant producers of comparable 

merchandise”).

13 In China Shrimp AR5, for example, both India and Thailand 

satisfied all of the selection criteria to serve as potential 

surrogate market economies for the People’s Republic of China 

(“China”), which Commerce also treats as an NME country.

Although Thailand’s GNI was nearly identical to China’s, whereas 

India’s GNI was just over a third of China’s, and although 

Thailand was arguably a more significant producer of comparable 

merchandise than India, Commerce selected India as the primary 

surrogate country based on a very slight difference between the 

relevant Indian and Thai FOP data. Specifically, although the 

Indian and Thai data were so similar in quality that Commerce 

was unable to make a distinction between the two datasets based 

on the agency’s usual data-evaluation standards, Commerce found 

that the Indian data for shrimp larvae (the critical input for 

producing the subject merchandise) did not specify the species 

of shrimp to which they referred, whereas the Thai data for 

shrimp larvae were specific to a species of shrimp that the 

mandatory respondent in that proceeding did not produce. On the 

basis of this distinction – i.e., based essentially on a finding 

that a subset of the Indian data was more vague than its 

counterpart within the Thai data – Commerce selected India as 

the primary surrogate country for China. See China Shrimp AR5, 

__ CIT at __, 882 F. Supp. 2d at 1372, 1375-76. 
Court No. 12-00314 Page 8 

surrogate country selections where the agency applies Policy 4.1 

in a way that arbitrarily discounts the value of relative GNI 

proximity (i.e., relative economic comparability) to the NME 

country when choosing among potential surrogates for whom 

quality data is available and who are significant producers of 

comparable merchandise. See China Shrimp AR5, __ CIT at __, 

882 F. Supp. 2d at 1374-76; Amanda Foods (Vietnam) Ltd. v. 

United States, 33 CIT 1407, 1413, 647 F. Supp. 2d 1368, 1376 

(2009) (“Vietnam Shrimp AR2”). 

B. Analysis 

Here, AHSTAC challenges Commerce’s selection of 

Bangladesh as the primary surrogate market economy country for 

Vietnam in this review. AHSTAC’s Br. at 13-18. Specifically, 

AHSTAC contends that Commerce erred by applying Policy 4.1 in 

such a way that “the GNI differential between Vietnam and the 

potential surrogate countries was completely excluded from 

consideration when Commerce selected Bangladesh [in this 

review].” Id. at 16. Accordingly, AHSTAC argues that Commerce’s 

surrogate country selection should be remanded on the same 

grounds as those supporting remand in China Shrimp AR5 and 

Vietnam Shrimp AR2. Id. at 16-18.

But AHSTAC mischaracterizes the record in this case.

Commerce has not “completely excluded from consideration” the 
Court No. 12-00314 Page 9 

potential surrogates’ relative GNI proximity to the GNI of 

Vietnam when selecting the primary surrogate country from the 

potential surrogates list. On the contrary, Commerce explicitly 

acknowledged that “India’s [GNI14] is closer to that of Vietnam” 

than “the relatively less similar [GNI] of the Philippines and 

Bangladesh.” I & D Mem. cmt. 1 at 4.15 Commerce then determined 

that, on the record of this review, the accuracy-enhancing value 

of Bangladesh’s significantly superior FOP data quality 

outweighed the accuracy-enhancing value of India’s relative GNI 

proximity. See id. at 5.16



14 Although the Issues & Decision Memorandum refers to the 

potential surrogates’ gross domestic product (“GDP”) rather than 

their GNI, Commerce in fact generates the potential surrogates 

list using GNI figures, rather than GDP. See 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) 

(noting that Commerce uses GNI, rather than GDP, to construct 

the potential surrogates list 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 [Commerce] 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”).

15 Commerce determined that the Philippines, India, and 

Bangladesh were each within the range of economic comparability 

to Vietnam, and were each significant producers and exporters of 

products comparable to the subject merchandise during the 

relevant time period. I & D Mem. cmt. 1 at 4.

16 Because Commerce in fact addressed “the GNI differential 

between Vietnam and the potential surrogate countries,” AHSTAC’s 

Br. at 16, in making its primary surrogate country selection, 

declining to reach the merits of AHSTAC’s contention that 

(footnote continued) 
Court No. 12-00314 Page 10 

Specifically, Commerce determined that the available 

Philippine data on shrimp (the FOP accounting for the largest 

portion of normal value) omitted “substantial portions of the 

range of sizes of shrimp sold by the respondents,” while the 

available Indian data on shrimp was 1) limited to a sole company 

within India, and thus did not “represent the broad market 

average [that Commerce] prefers,” and 2) provided values that 

were publicly ranged, and thus values that did not “represent 

actual, exact prices for shrimp in the Indian market.” I & D 

Mem. cmt. 1 at 5. The available Bangladeshi data, on the other 

hand, represented a broad-market average, were product-specific, 

contemporaneous with the POR, and represented actual transaction 

prices. Id. Accordingly, Commerce determined that, 

notwithstanding Bangladesh’s lesser GNI proximity to Vietnam 



Commerce improperly failed to do so would not be appropriate in 

this case. Cf. Def.’s Corrected Resp. in Opp’n to Pl.’s Mot. for 

J. Upon the Agency R., ECF No. 41 (“Def.’s Br.”) at 20-23 

(arguing that the court should decline to reach the merits of 

AHSTAC’s contention in this regard because AHSTAC failed to make 

this argument before the agency in the first instance); 

28 U.S.C. § 2637(d) (“[T]he Court of International Trade shall, 

where appropriate, require the exhaustion of administrative 

remedies.”) (emphasis added); Blue Field (Sichuan) Food Indus. 

Co. v. United States, __ CIT __, 949 F. Supp. 2d 1311, 1321 

(2013) (“This court has discretion to determine when it will 

require the exhaustion of administrative remedies.”) (citing 

28 U.S.C. § 2637(d)); Itochu Bldg. Prods. v. United States, 

733 F.3d 1140, 1145 (Fed. Cir. 2013) (holding that requiring 

exhaustion of administrative remedies is appropriate where doing 

so “can protect administrative agency authority and promote 

judicial efficiency”) (citation omitted).
Court No. 12-00314 Page 11 

than that of the other two potential surrogates, “the 

superiority of the Bangladeshi surrogate value data compared to 

the Philippine and Indian surrogate value data” outweighed the 

benefits of using data from a country with a relatively closer 

GNI to that of Vietnam.17 See id. at 4-5. 

Thus Commerce specifically weighed the relative GNI 

proximity of each potential surrogate to Vietnam’s GNI against 

the significant differences in the quality of the relevant 

surrogate value data available from each of these countries. 



17 Importantly, Bangladesh’s relatively less similar GNI to that 

of Vietnam (when compared with India’s GNI) does not affect 

Commerce’s determination that all three potential surrogate 

countries independently fell within the range of economic 

comparability to Vietnam, and therefore that data from all three 

countries would satisfy that threshold statutory requirement. 

See I & D Mem. cmt. 1 at 4. The appropriateness of placing 

Bangladesh on the initial potential surrogates list (based on 

Commerce’s finding that Bangladesh’s GNI fell within the range 

of economic comparability to Vietnam) is uncontested. 

Accordingly, Fujian Lianfu – which addressed a challenge to the 

appropriateness of placing India on the potential surrogates 

list for China, and was therefore not concerned with the 

relative economic comparability of potential surrogates, but 

rather with whether India should have been considered a 

potential surrogate at all, 33 CIT at 1075, 638 F. Supp. 2d 

at 1347 – is inapposite to the case at hand. Cf. Def.’s Br. 

at 13 (relying on Fujian Lianfu to argue that “Commerce applied 

the standard that this Court affirmed in Fujian”). It may well 

be that, in placing Bangladesh on the potential surrogates list 

for Vietnam, Commerce applied the standard that the court 

affirmed in Fujian Lianfu, but Commerce’s initial placement of 

Bangladesh on the potential surrogates list is not the issue 

before the court. Here, the challenge is to Commerce’s 

consideration of the merits of each of the potential surrogates 

on that list relative to each other, which is an issue that was 

not before the court in Fujian Lianfu.
Court No. 12-00314 Page 12 

See I & D Mem. cmt.1 at 4-5. Accordingly, contrary to AHSTAC’s 

contentions, Commerce did in fact consider the differences in 

GNI among the potential surrogates. For this reason, the 

grounds supporting the remand orders in China Shrimp AR5 and 

Vietnam Shrimp AR2 are not present in this case.18

Moreover, Commerce’s explanation for why the agency 

chose to give more weight to the superiority of the Bangladeshi 

surrogate value data than to India’s relatively closer GNI is 

reasonable.19 Specifically, Commerce explained that, although 

India’s GNI was closer to that of Vietnam’s – implying a more 

accurate estimate for the FOP values that tend to be linearly 



18 Cf. China Shrimp AR5, __ CIT __, 882 F. Supp. 2d at 1375 

(explaining that, in that case, “Commerce did not decide that 

the superiority of Indian data quality outweighed the 

superiority of Thailand’s economic comparability to the NME,” 

but rather “Commerce decided that it need not consider relative 

economic comparability, or weigh one country’s strength in 

economic comparability against another’s strength in data 

quality”) (citation omitted); Vietnam Shrimp AR2, 33 CIT 

at 1413, 647 F. Supp. 2d at 1376 (explaining that, in that case, 

Commerce did not consider or explain “why the difference in 

economic similarity to Vietnam [among the potential surrogates] 

is outweighed by the differences in quality of data between 

Bangladesh and India”). 

19 Notably, although AHSTAC argues that Commerce should have 

selected the Philippines rather than Bangladesh, see AHSTAC Br. 

at 9, the Philippines’ GNI is actually less similar to that of 

Vietnam than is Bangladesh’s. See id. at 7 (quoting record 

evidence listing the per capita GNIs for Vietnam, Bangladesh, 

and the Philippines as $1,010, $590, and $1,790, respectively; 

and thus showing that the GNI differential between Vietnam and 

Bangladesh ($1,010 - $590 = $420) is in fact nearly half that 

between Vietnam and the Philippines ($1,010 - $1,790 = -$780)).
Court No. 12-00314 Page 13 

correlated with GNI, such as wage rates20 – the available Indian 

surrogate value data for shrimp (the FOP accounting for the 

largest portion of normal value) was limited to only a single 

company and did not reflect exact market prices, whereas the 

available Bangladeshi data represented a broad market average 

based on actual transaction prices. I & D Mem. cmt. 1 at 5.21

Accordingly, because Commerce’s selection of 

Bangladesh as the primary surrogate country for Vietnam in this 

review was supported by a reasoned and reasonable analysis of 

the record, this determination is sustained as supported by 

substantial evidence. See Nippon Steel, 458 F.3d at 1351. 

II. Labor Wage Rate Valuation 

AHSTAC also argues that the Final Results should be 

remanded for additional consideration because they “are devoid 

of any effort to address Commerce’s prior labor findings, let 

alone explain why those findings are no longer persuasive.” 



20 See infra Section II of this opinion. 

21 Again, these facts distinguish this case from China Shrimp AR5 

and Vietnam Shrimp AR2, where Commerce did not consider the 

potential surrogates’ relative GNI proximity to the NME country 

at all. See supra note 18. Moreover, in China Shrimp AR5, 

unlike here, the differences in data quality between the 

potential surrogates were too minor to reasonably support a 

conclusion that data superiority outweighed any potential 

benefits from using data from a surrogate with a GNI that was 

closer to that of the NME in question. See China Shrimp AR5, 

__ CIT __, 882 F. Supp. 2d at 1375-76. 
Court No. 12-00314 Page 14 

AHSTAC Br. at 25 (citation omitted). Specifically, AHSTAC 

faults Commerce for deciding to value the labor FOP in the same 

way that the agency values all other surrogate FOPs (i.e., by 

relying on data from a single surrogate country, unless reliable 

data for a particular FOP are not available from the primary 

surrogate), without explaining its departure from its prior 

position that “labor is different.” Id. (internal quotation 

marks and citation omitted).

A. Background 

In the past, Commerce generally valued the labor FOP 

for merchandise from NME countries by using “regression-based 

wage rates reflective of the observed relationship between wages 

and national income in market economy countries.” 19 C.F.R. 

§ 351.408(c)(3) (2010). Regression-based NME wage rates 

estimated the linear relationship between GNI and wage rates to 

arrive at the wage for an NME country by using the NME’s GNI.22



22 Zhejiang DunAn Hetian Metal Co. v. United States, __ CIT __, 

707 F. Supp. 2d 1355, 1366 (2010) (footnote omitted), vacated on 

other grounds, 652 F.3d 1333 (Fed. Cir. 2011); see also Dorbest 

Ltd. v. United States, 604 F.3d 1363, 1371 (Fed. Cir. 2010) 

(“Commerce determines a linear trend that best fits the data, 

providing a way to predict the labor rate for a country with any 

given gross national income.”); Antidumping Duties; 

Countervailing Duties, 61 Fed. Reg. 7308, 7345 (Dep’t Commerce 

Feb. 27, 1996) (“[W]hile per capita [gross domestic product] and 

wages are positively correlated, there is great variation in the 

wage rates of the market economy countries that [Commerce] 

typically treats as being economically comparable. As a 

(footnote continued) 
Court No. 12-00314 Page 15 

During the fourth administrative review of this antidumping duty 

order, however, 19 C.F.R. § 351.408(c)(3) was invalidated as 

contrary to the statute because, rather than evaluating the 

extent to which it was possible to base surrogate FOP 

calculations on data from countries that are economically 

comparable to the NME and significant producers of comparable 

merchandise,23 the regulation instead formulaically required 

reliance on data from countries that did not satisfy one or both 

of these statutory requirements.24



practical matter, this means that the result of an NME case can 

vary widely depending on which of the economically comparable 

countries is selected as the surrogate. . . . [U]se of 

[regression-based] wage rate[s] will contribute to both the 

fairness and the predictability of NME proceedings. By avoiding 

the variability in results depending on which economically 

comparable country happens to be selected as the surrogate, the 

results are much fairer to all parties.”). 

23 See 19 U.S.C. § 1677b(c)(4).

24 See Dorbest, 604 F.3d 1371-72 (holding that because the 

statute requires Commerce to use data from economically 

comparable countries “to the extent possible,” Commerce may not 

employ a methodology that requires using data from both 

economically comparable and economically dissimilar countries, 

in the absence of a showing “that using the data Congress has 

directed Commerce to use is impossible”); Shandong Rongxin Imp. 

& Exp. Co. v. United States, __ CIT __, 774 F. Supp. 2d 1307, 

1316 (2011) (holding that because the statute requires Commerce 

to use, “to the extent possible,” data from countries that are 

“significant” producers of comparable merchandise, Commerce may 

not employ a methodology that requires using data from 

“countries which almost certainly have no domestic production – 

at least not any meaningful production, capable of having 

influence or effect”). 
Court No. 12-00314 Page 16 

Subsequently, before the results of the fifth review 

of this antidumping duty order were finalized but after Commerce 

had already made its preliminary surrogate country selection for 

that review, Commerce published its New Labor Rate Policy, 

explaining its change in policy for constructing surrogate labor 

rates.25 Specifically, the New Labor Rate Policy rejected 

Commerce’s prior preference for using data from multiple market 

economies to construct surrogate labor rates in favor of a 

policy of relying on data from a single market economy to 

calculate all surrogate FOPs, including labor. Id. at 36,094.

Because the results of the fifth review had not yet been 

finalized at the time that the New Labor Rate Policy went into 

effect, Commerce applied its new policy in that review, as it 

has in all subsequent antidumping proceedings involving 

merchandise from NME countries.

In adjudicating AHSTAC’s challenge to Commerce’s 

application of its New Labor Rate Policy in the fifth review of 

this antidumping duty order, this Court sustained the New Labor 

Rate Policy as reasonable on its face, holding that “Commerce 

reasonably determined that, in general, the administrative costs 



25 Antidumping Methodologies in Proceedings Involving Non-Market 

Economies: Valuing the Factor of Production: Labor, 76 Fed. Reg. 

36,092 (Dep’t Commerce, June 21, 2011) (“New Labor Rate 

Policy”).
Court No. 12-00314 Page 17 

of engaging in a complex and lengthy analysis of additional 

surrogate data for the labor FOP may outweigh the accuracyenhancing benefits of doing so.”26 But because Commerce had 

initially selected the primary surrogate country in that segment 

of this antidumping proceeding before the New Labor Rate Policy 

went into effect, when Commerce’s policy was still to use 

multiple countries’ data to calculate surrogate labor rates, 

Commerce’s initial surrogate country analysis did not consider 

the reasonableness of its selection in terms of providing the 

best available information regarding the surrogate values for 

all FOPs, including labor. And because Commerce did not 

reevaluate the appropriateness of its surrogate country 

selection for valuing all of the FOPs, including labor, when 

applying its New Labor Rate Policy in finalizing the results of 

that review, Commerce’s surrogate country selection was remanded 

for the agency to explicitly weigh the evidence that its chosen 

surrogate’s wage data were likely to understate the surrogate 

market labor rate for the shrimping industry in Vietnam (given 

the particular GNI disparity between the surrogate and the NME 

country and the linear relationship between GNI and wage) 



26 Camau Frozen Seafood Processing Imp. Exp. Corp. v. United 

States, __ CIT __, 968 F. Supp. 2d 1328, 1336 (2014) (“Vietnam 

Shrimp AR5”) (citing Camau Frozen Seafood Processing Imp. Exp. 

Corp. v. United States, __ CIT __, 880 F. Supp. 2d 1348, 1358 

(2012)).
Court No. 12-00314 Page 18 

against the remaining evidence that the chosen surrogate’s FOP 

data as a whole were nevertheless the best available data on 

record from which to value all of the surrogate FOPs.27

B. Analysis 

Here, unlike Vietnam Shrimp AR5, Commerce specifically 

weighed the considerations that the court ultimately ordered 

Commerce to weigh in the remand of that prior review. See I & D 

Mem. cmt. 1 at 4-5. Commerce explained that, although India’s 

GNI was closer to that of Vietnam’s – implying a more accurate 

estimate for the FOP values that tend to be very closely 

correlated with GNI, such as wage rates28 – the available Indian 

surrogate value data for the FOP accounting for the largest 

portion of normal value were so inferior to the available 

Bangladeshi data that any accuracy-enhancing benefit accruing 

from selecting India – the country with the closest GNI to 

Vietnam’s – was in fact outweighed by the accuracy-loss of 

inferior data quality. See id.29 Thus, as already discussed,30



27 Id. at 1336-37.

28 See supra note 22. 

29 As discussed above, Commerce found that the Indian data was 

limited to only a single company and did not reflect exact 

market prices, whereas the available Bangladeshi data 

represented a broad market average based on actual transaction 

prices. I & D Mem. cmt. 1 at 5. 

30 See supra Section I of this opinion.
Court No. 12-00314 Page 19 

Commerce’s primary surrogate country analysis in this review 

reasonably accounted for the effect of the specific GNI 

differential between Bangladesh and Vietnam (i.e., the likely 

underestimation of the surrogate labor rate) by explaining that 

any accuracy-loss from an underestimated wage rate is outweighed 

by the accuracy gained from using Bangladeshi data for the 

remaining FOPs. See I & D Mem. cmt. 1 at 4-5.

AHSTAC does not point to any specific record evidence 

to suggest that Commerce’s analysis resulted in an unreasonable 

choice of surrogate FOP data as a whole – i.e., AHSTAC has not 

pointed to any evidence that Commerce has not already considered 

and weighed when making its primary surrogate country selection 

and implementing its new policy of sourcing all FOP data from 

that primary surrogate.31 And while AHSTAC is correct that, 

notwithstanding the New Labor Rate Policy, Commerce may not rely 

on data that are aberrational or distortive,32 AHSTAC’s argument 



31 Indeed, as already noted above, the GNI differential between 

Vietnam and the Philippines (AHSTAC’s preferred surrogate) is 

greater than that between Vietnam and Bangladesh. See supra

note 17. Cf. Vietnam Shrimp AR5, __ CIT at __, 968 F. Supp. 2d 

at 1336-37 (suggesting that a logical implication of Commerce’s 

New Labor Rate Policy is that considerations of the laborvaluation accuracy-enhancing benefits of a potential surrogate’s 

GNI proximity to the GNI of the NME country must now be weighed 

as part of Commerce’s primary surrogate country selection 

analysis).

32 The New Labor Rate Policy itself explicitly acknowledges this. 

See New Labor Rate Policy, 76 Fed. Reg. at 36,094 (“If there is 

(footnote continued) 
Court No. 12-00314 Page 20 

that the Bangladeshi wage data used in this review were 

aberrational is not persuasive. As Commerce explained, see I & 

D Mem. cmt. 2C at 12, although the Banglandeshi labor data 

exhibit values lower than other countries on Commerce’s initial 

potential surrogates list, this does not mean that the numbers 

are aberrational. Rather, just as Bangladesh’s GNI is the 

lowest within the range of GNI values exhibited by the countries 

on the potential surrogates list (all of which were determined 

to satisfy the threshold economic comparability requirement, a 

determination that is not contested), so too Bangladesh’s labor 

data is merely the lowest value within the range of economically 

comparable countries on that list. See Camau Frozen Seafood 

Processing Imp. Exp. Corp. v. United States, __ CIT __, 929 F. 

Supp. 2d 1352, 1356 n.9 (2013) (rejecting a similar argument 

made by AHSTAC in a challenge to the final results of the fifth 

review of this antidumping duty order).

Thus AHSTAC’s challenge to Commerce’s reliance on its 

New Labor Rate Policy to value all relevant FOPs in this review 



evidence submitted on the record by interested parties 

demonstrating that the NME respondent’s cost of labor is 

overstated, the Department will make the appropriate adjustments 

to the surrogate financial statements subject to the available 

information on the record.”); I & D Mem. cmt. 2C at 13 (noting 

that Commerce will look to data beyond that from the primary 

surrogate country “when a suitable [FOP] value from the primary 

surrogate country does not exist on the record”). 
Court No. 12-00314 Page 21 

(including the labor rate) using data from the primary surrogate 

country must be rejected because Commerce’s New Labor Rate 

Policy is generally reasonable, and no evidence suggests that it 

was unreasonably applied on the record of this review. 

CONCLUSION

For all of the foregoing reasons, Commerce’s Final 

Results are sustained. Judgment will issue accordingly. 

 /s/ Donald C. Pogue______

Donald C. Pogue, Chief Judge 

Dated:

 New York, NY 

May 29, 2014