Slip Op. 17-145

UNITED STATES COURT OF INTERNATIONAL TRADE

WEISHAN HONGDA AQUATIC FOOD 

CO., LTD., et al., 

Plaintiffs, 

 v.

UNITED STATES, 

Defendant, 

 and

CRAWFISH PROCESSORS ALLIANCE, 

Defendant-Intervenor. 

Before: Mark A. Barnett, Judge

Court No. 16-00073

OPINION

[Sustaining the U.S. Department of Commerce’s Final Results, as corrected in the 

Amended Final Results and as amended by the Remand Results.] 

Dated: October 25, 2017

Dharmendra N. Choudhary, Grunfeld Desiderio Lebowitz Silverman & Klestadt, LLP, of 

Washington, DC, argued for Plaintiffs. With him on the brief was Francis J. Sailer. 

Mollie L. Finnan, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. 

Department of Justice, of Washington, DC, argued for Defendant. With her on 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 Emily R. Beline, Attorney, Office of the Chief Counsel for Trade Enforcement 

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

John C. Steinberger, Adduci, Mastriani & Schaumberg, LLP, of Washington, DC, argued 

for Defendant-Intervenor. With him on the brief was Will E. Leonard. 
Court No. 16-00073 Page 2 

Barnett, Judge: This matter is before the court following the U.S. Department of 

Commerce’s (“Commerce” or the “agency”) redetermination upon remand in this case. 

See Final Results of Remand Redetermination (“Remand Results”), ECF No. 51-1. 

Plaintiffs Weishan Hongda Aquatic Food Co., Ltd (“Weishan”), China Kingdom 

(Beijing) Import & Export Co., Ltd. (“China Kingdom”), Shanghai Ocean Flavor 

International Trading Co., Ltd. (“Ocean Flavor”), and Deyan Aquatic Products and Food 

Co., Ltd. (“Deyan”) (collectively, “Plaintiffs”) initiated this case challenging Commerce’s 

Final Results in the 2013-2014 administrative review (“AR”) and new shipper review 

(“NSR”) of the antidumping duty order covering freshwater crawfish tail meat from the 

People’s Republic of China (“PRC” or “China”).1 See Freshwater Crawfish Tail Meat 

from the People’s Republic of China, 81 Fed. Reg. 21,840 (Dep’t Commerce Apr. 13, 

2016) (final results of antidumping duty admin. review and new shipper review; 2013-

2014) (“Final Results”), PJA Doc. 21, NSR-PR 160, ECF No. 26-6, as corrected in 

Freshwater Crawfish Tail Meat from the People’s Republic of China, 81 Fed. Reg. 

23,457 (Dep’t Commerce Apr. 21, 2016) (notice of correction to final results of 

antidumping duty admin. and new shipper reviews; 2013-2014) (“Am. Final Results”),

PJA Doc. 22, NSR-PR 165, ECF No. 26-7, and accompanying Issues and Decision 

1 The administrative review and new shipper review have separate administrative 

records; each is divided into a public record (“PR”)—ECF No. 26-2 (NSR) (“NSR-PR”) 

and ECF No. 26-4 (AR) (“AR-PR”)—and a confidential record— ECF No. 26-3 (NRS) 

and ECF No. 26-5 (AR). Parties submitted a public joint appendix (“PJA”) containing all 

record documents cited in their briefs. Parties did not cite to confidential record 

documents, see PJA, ECF No. 41. Thus, all citations are to the PR and PJA, unless 

otherwise stated. 
Court No. 16-00073 Page 3 

Memorandum, A-570-848 (Apr. 8, 2016) (“I&D Mem.”), PJA Doc. 17, NSR-PR 151, ECF 

No. 26-8. 

Specifically, Plaintiffs challenge Commerce’s rejection of Thai financial 

statements in favor of a 2014 Annual Report from a South African seafood processor, 

Oceana Group (the “Oceana Report”), to value factory overhead, selling, general and 

administrative expenses, and profit (hereinafter referred to as “financial ratios”). 

Plaintiffs argue that Commerce failed to adequately support or explain its determination 

that the Oceana Report provided the necessary information to accurately calculate 

financial ratios or compare the Thai and South African financial statements to determine 

which was more reliable and representative of Plaintiffs’ production experience, and the 

Thai financial statements are “[v]astly [s]uperior” to the Oceana Report. See Pl.’s [sic] 

Rule 56.2 Mot. for J. on the Agency R. and Br. in Supp. of Pl.’s [sic] Rule 56.2 Mot. for 

J. on the Agency R. (“Pls.’ Mem.”) at 14-31, ECF No. 34. Plaintiffs’ third basis for 

challenging Commerce’s reliance on the Oceana Report is their disputing of 

Commerce’s finding that South Africa is a significant producer of comparable 

merchandise. See id. at 28-29.

Before oral argument on Plaintiffs’ Rule 56.2 motion for judgment on the agency 

record, Defendant requested that the court remand the determination for Commerce to 

reconsider its factual basis for finding that South Africa is a significant producer of 

comparable merchandise, and the court granted the request. See Order (March 21, 

2017), ECF No. 50. In the Remand Results, Commerce affirmed its conclusion that 

South Africa is a significant producer of comparable merchandise and, therefore,
Court No. 16-00073 Page 4 

continued its reliance on the Oceana Report to value financial ratios. Remand Results 

at 1-2, 6-11.

Following Commerce’s issuance of the Remand Results, Parties filed a joint 

status report wherein Plaintiffs assert they no longer challenge Commerce’s 

determination that South Africa is a significant producer of comparable merchandise. 

Post Remand Joint Status Report (“Status Report”) at 1, ECF No. 53. Plaintiffs,

however, seek completion of the court’s review of issues that were not addressed on 

remand. Id. at 2.

For the following reasons, the court sustains the Final Results, as corrected by 

the Am. Final Results and as amended by the Remand Results. 

BACKGROUND

In 1997, Commerce issued an antidumping duty order covering freshwater 

crawfish tail meat from China. See Freshwater Crawfish Tail Meat From the People’s 

Republic of China, 62 Fed. Reg. 41,347 (Dep’t Commerce Aug. 1, 1997) (notice of final 

determination of sales at less than fair value) (“Final LTFV Determination”), as corrected 

in Freshwater Crawfish Tail Meat From the People’s Republic of China, 62 Fed. Reg. 

48,218 (Dep’t Commerce Sept. 15, 1997) (notice of amendment to final determination of 

sales at less than fair value and antidumping duty order).2

2 The order covers “freshwater crawfish tail meat, in all its forms . . ., grades, and sizes; 

whether frozen, fresh, or chilled; and regardless of how it is packed, preserved, or 

prepared.” Final LTFV Determination, 62 Fed. Reg. at 41,347. Live crawfish, whole 

crawfish, and saltwater crawfish are excluded from the scope of the order. Id. The 

freshwater crawfish tail meat covered by the order is classifiable pursuant to the 

following subheadings of the Harmonized Tariff System of the United States: 
Court No. 16-00073 Page 5 

On September 2, 2014, Commerce published a notice of opportunity to request 

an administrative review in this proceeding. Antidumping or Countervailing Duty Order, 

Finding, or Suspended Investigation; Opportunity to Request Administrative Review, 79 

Fed. Reg. 51,958 (Dep’t Commerce Sept. 2, 2014). Defendant-Intervenor, Crawfish 

Processors Alliance (“CPA”), filed requests for review of China Kingdom and Deyan; 

Ocean Flavor and China Kingdom filed their own requests for review. See Request for 

Admin. Review, PJA Doc. 1, AR-PR 2, ECF No. 41; Freshwater Crawfish Tail Meat from 

the People’s Republic of China: Respondent Selection for the 2013-2014 Antidumping

Duty Admin. Review (Dec. 16, 2014), PJA Doc. 3, AR-PR 24, ECF No. 41. In October 

2014, Commerce initiated an administrative review for the period of review September 

1, 2013 to August 31, 2014. See Initiation of Antidumping and Countervailing Duty 

Admin. Reviews, 79 Fed. Reg. 64,565 (Dep’t Commerce Oct. 30, 2014). On November 

21, 2014, Commerce aligned the administrative review with the concurrent new shipper 

review initiated in connection with Weishan. See Alignment of New-Shipper Reviews of 

Freshwater Crawfish Tail Meat from the PRC with the Concurrent Admin. Review of 

Freshwater Crawfish Tail Meat from the PRC (“Alignment Ltr.”), PJA Doc. 2, AR-PR 19,

ECF No. 41.

On October 7, 2015 Commerce published its preliminary results. Freshwater 

Crawfish Tail Meat From the People’s Republic of China, 80 Fed. Reg. 60,624 (Dep’t 

Commerce Oct. 7, 2015) (prelim. results of antidumping duty admin. review and new 

1605.40.10.10, 1605.40.10.90, 0306.19.00.10, 0306.29.00.00, and 0306.29.01.00. 

Final Results, 81 Fed. Reg. at 21,841.
Court No. 16-00073 Page 6 

shipper reviews; 2013-2014) (“Prelim. Results”), PJA Doc. 11, NSR-PR 139, ECF No. 

41, and accompanying Preliminary Decision Memorandum, A-570-848 (Oct. 7, 2015) 

(“Prelim. Decision Mem.”), PJA Doc. 7, NSR-PR 123, ECF No. 41. Commerce 

determined that Thailand, South Africa, Colombia, Bulgaria, Ecuador, and Indonesia 

were potential surrogate countries based on their economic comparability to the PRC. 

Freshwater Crawfish Tail Meat from the PRC: Selection of a Surrogate Country 

(“Surrogate Cntry Mem.”) at 2, PJA Doc. 8, NSR-PR 124, ECF No. 41. Upon review of 

Global Trade Atlas (“GTA”) export statistics, Commerce concluded that none of the 

potential surrogate countries produced freshwater crawfish tail meat or whole crawfish. 

Id. at 4. Therefore, Commerce examined GTA export data for processed seafood, 

which it had deemed comparable merchandise in prior segments of the proceeding, and 

determined that Indonesia and Thailand were significant producers of processed 

seafood. Id. Although Commerce had surrogate values for most of the factors of 

production from both Thailand and Indonesia, Commerce had financial statements 

solely from Thailand. Id. at 5. Thus, Commerce selected Thailand as the primary 

surrogate country. Prelim. Decision Mem. at 5; Surrogate Cntry Mem. at 5.

During the preliminary investigation, CPA argued that a condition known as 

“Early Mortality Syndrome” (“EMS”) had “decimated” Thai shrimp populations 

throughout calendar years 2013 and 2014 and, thus, Commerce should reject Thai 

financial information in favor of the Oceana Report. Preliminary Surrogate Value 

Memorandum (“Prelim. Surrogate Value Mem.”) at 2, PJA Doc. 9, NSR-PR 125, ECF 

No. 41; Pet’r Surrogate Value Cmts., Ex. 5 (the “Oceana Report”), PJA Doc. 6, NSR-PR 
Court No. 16-00073 Page 7 

66, ECF No. 41. Finding the more contemporaneous Thai financials unusable due to 

the effects of EMS on Thai seafood processors from 2013 to 2014, in its Preliminary 

Results, Commerce relied on 2012 financial statements from two Thai seafood 

processors, Surapon Food Public Company Ltd. (“Surapon”) and Kiang Huat Sea Gull 

Trading Frozen Food Public Company Ltd. (“King Huat”). Prelim. Surrogate Value 

Mem. at 6; Prelim. Decision Mem. at 15; see also I&D Mem. at 3 (identifying the Thai 

seafood processors). Commerce preliminarily calculated dumping margins of zero 

percent for each plaintiff. Prelim. Results, 80 Fed. Reg. at 60,625.

In its case brief filed in the administrative and new shipper reviews, CPA argued 

that Commerce should not use the 2012 financial statements of Surapon and Kiang 

Huat because EMS had begun impacting Thai shrimp populations in 2012, not 2013, 

and the statements show that the companies had received countervailable export 

subsidies. CPA Case Br. and Request for Hr’g (“CPA Case Br.”) at 1-7, PJA Docs. 4, 

12, AR-PR 99, NSR-PR 140, ECF No. 41; I&D Mem. at 3-4.3 CPA urged Commerce to 

use the Oceana Report on the basis that South Africa is a significant producer of 

comparable merchandise, and the annual report is contemporaneous with the period of 

review. CPA Case Br. at 7-9; I&D Mem. at 4-5.

In the new shipper review, Weishan countered that Surapon’s and Kiang Huat’s 

respective financial performances were unaffected by EMS in 2012, and the statements 

3 CPA pointed to “promotional privileges” in Surapon’s and Kiang Huat’s financial 

statements as evidence that both companies benefitted from the Thai government’s 

“Industrial Investment Promotion Act B.E. 2520.” CPA Case Br. at 6 (citing Prelim. 

Surrogate Value Mem., Attach. 7, PJA Doc. 10, NSR-PR 125-128, ECF No. 41).
Court No. 16-00073 Page 8 

“are only slightly non-contemporaneous.” Weishan Rebuttal Br. at 4-5, 6, PJA Doc. 14, 

NSR-PR 141, ECF No. 41; I&D Mem. at 5-6. Weishan also argued that Commerce 

should not reject the subsidy-tainted Thai financial statements because the Oceana 

Report is “simply unusable” and thus does not afford Commerce with a “superior 

choice.” Weishan Rebuttal Br. at 6. Specifically, Weishan argued that South Africa is 

not a significant producer of comparable merchandise, and the Oceana Report is 

insufficiently disaggregated because it contains a basket line item for “Cost of Sales” 

and fails to separate expenses for raw materials and labor. Id. at 7-12.

Commerce rejected CPA’s argument regarding EMS but credited its argument 

that the Thai financial statements were unusable due to the companies’ receipt of 

countervailable export subsidies, and that it should instead select the Oceana Report. 

I&D Mem. at 8-9. Thus, in the Final Results, although Commerce again selected 

Thailand as the primary surrogate country, id. at 2, it relied on the Oceana Report to 

value financial ratios, id. at 9.

Commerce noted that South Africa is economically comparable to China, and the 

Oceana Report is contemporaneous with the period of review. Id. Commerce further 

explained that South Africa is a significant producer of comparable merchandise 

because “export revenues for processed seafood listed as ‘canned fished and fishmeal 

and horse mackerel and hake’ outlined in [Oceana’s 2014 Annual Report] are 

4,289,946,000 Rand in the year ending September 30, 2014,” id. at 9 & n. 27 (citing the 

Oceana Report at 21), and Commerce previously determined that processed seafood 

constitutes comparable merchandise, id. at 9 & n.28 (citing Surrogate Cntry Mem.).
Court No. 16-00073 Page 9 

In response to Weishan’s argument that the Oceana Report failed to 

disaggregate raw material and labor costs, Commerce asserted, “we find that it contains 

the necessary information for [Commerce] to calculate appropriate financial ratios.” Id.

at 9 (citing Freshwater Crawfish Tail Meat from the PRC: Final Results Surrogate-Value 

Mem. (“Final Surrogate Value Mem.”), PJA Doc. 18, NSR-PR 152, ECF No. 41). In the 

Final Surrogate Value Memorandum, Commerce explained that it generally calculates

the overhead ratio by dividing total overhead costs by the total costs of materials, labor, 

and energy. Final Surrogate Value Mem. at 2. However, in the Preliminary Results, it 

had been unable to segregate energy costs from overhead costs, and, therefore, 

“applied [the] overhead ratio, which included energy costs, to the per-unit costs for

materials and labor only[,] and did not calculate a separate per-unit cost for energy.” 

Id.

4 For the Final Results, reliance on the Oceana Report enabled Commerce to follow 

its normal methodology. Id. That is, energy costs were included in the denominator 

along with materials and labor, rather than the numerator. Id. Commerce calculated 

final weighted average dumping margins of 22.16 percent for China Kingdom, 12.04 

percent for Deyan, 17.23 percent for Ocean Flavor, and 26.10 percent for Weishan. 

Final Results, 81 Fed. Reg. at 21,841.

4 In the preliminary proceedings, Commerce explained that because the 2012 Thai 

financial statements did not separately identify energy expenses, it had been unable to 

“exclude energy costs from the calculation of the surrogate financial ratio for overhead.” 

Prelim. Surrogate Value Mem. at 6. According to its past practice, therefore, Commerce 

“disregard[ed] the respondents’ energy inputs in the calculation of normal value in order 

to avoid double-counting energy costs which have necessarily been captured in the 

surrogate financial ratios.” Id.
Court No. 16-00073 Page 10

On October 7, 2016, Plaintiffs filed a Rule 56.2 motion for judgment on the agency 

record. See generally Pls.’ Mem. Defendant and Defendant-Intervenor opposed the 

motion. See generally Def.’s Mem. in Opp’n to Pls.’ Rule 56.2 Mot. for J. on the Agency 

R. (“Def.’s Resp.”), ECF No. 35; Br. of the Def.-Int., Crawfish Processors Alliance, in 

Opp’n to Pls.’ Mot. for J. on the Agency R. (“CPA Resp.”), ECF No. 36. In addition to 

opposing the substance of Plaintiffs’ motion, CPA argued that the Plaintiffs from the 

administrative review (China Kingdom, Deyan, and Ocean Flavor) failed to exhaust their 

administrative remedies because none of them had filed case or rebuttal briefs with 

Commerce in advance of the Final Results. CPA Resp. at 4-6.

On March 16, 2017, the court issued five questions to Parties prior to oral 

argument on the pending Rule 56.2 motion. See Letter to Counsel (March 16, 2017),

ECF No. 46. Defendant subsequently requested remand to address issues the court 

raised in its third question, which related to the factual basis for Commerce’s 

determination that South Africa is a significant producer of comparable merchandise. 

See Def.’s Mot. for a Voluntary Remand (“Def.’s Remand Mot.”) at 3, ECF No. 47.

On June 5, 2017, Commerce filed its Remand Results affirming its conclusion 

that South Africa is a significant producer of comparable merchandise and, therefore, its 

reliance on the Oceana Report to value financial ratios. See Remand Results at 1-2, 6-

11. In a Post Remand Joint Status Report, Plaintiffs asserted that they no longer 

challenge Commerce’s finding that South Africa is a significant producer of comparable 
Court No. 16-00073 Page 11

merchandise,5 but continued to challenge Commerce’s reliance on the Oceana Report 

to value financial ratios. See Status Report at 1-2. Plaintiffs requested oral argument 

on that issue, but no further briefing. Id. at 2. Defendant agreed that no further briefing 

was merited, and deferred to the court as to scheduling oral argument. Id. at 3. 

Defendant-Intervenor sought briefing on whether Plaintiffs were foreclosed from 

challenging Commerce’s use of the Oceana Report for failure to comment on the draft 

redetermination. Id. at 3-4.

The court granted Plaintiffs’ request for oral argument. See Order (July 26, 

2017), ECF No. 54. In the Order, the court invited Parties to explain their respective 

positions on the issue of administrative exhaustion during the remand proceeding, but 

did not permit briefing on that issue. Id. The court heard oral argument on September 

20, 2017. See Docket Entry, ECF No. 57. 

JURISDICTION AND STANDARD OF REVIEW

The court has jurisdiction pursuant to § 516A(a)(2)(B)(iii) of the Tariff Act of 1930, 

as amended, 19 U.S.C. § 1516a(a)(2)(B)(iii) (2012),6 and 28 U.S.C. § 1581(c). 

The court will uphold an agency determination that is supported by substantial 

evidence and otherwise in accordance with law. 19 U.S.C. § 1516a(b)(1)(B)(i). 

“Substantial evidence is ‘such relevant evidence as a reasonable mind might accept as 

adequate to support a conclusion.’” Huaiyin Foreign Trade Corp. (30) v. United States,

5 Accordingly, the court will not further address this issue.

6 All citations to the Tariff Act of 1930, as amended, are to Title 19 of the U.S. Code, 

and all citations to the U.S. Code and Code of Federal Regulations are to the 2012 

edition unless otherwise stated.
Court No. 16-00073 Page 12

322 F.3d 1369, 1374 (Fed. Cir. 2003) (quoting Consol. Edison Co. v. NLRB., 305 U.S. 

197, 229 (1938)). It “requires more than a mere scintilla,” but “less than the weight of 

the evidence.” Nucor Corp. v. United States, 34 CIT 70, 72, 675 F. Supp. 2d 1340, 

1345 (2010) (quoting Altx, Inc. v. United States, 370 F.3d 1108, 1116 (Fed. Cir. 2004)). 

In determining whether substantial evidence supports Commerce’s determination, the 

court must consider “the record as a whole, including evidence that supports as well as 

evidence that ‘fairly detracts from the substantiality of the evidence.’” Nippon Steel 

Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003) (quoting Atl. Sugar, Ltd. v. 

United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)). However, that a plaintiff can 

point to evidence that detracts from the agency’s conclusion or the possibility of drawing

two inconsistent conclusions from the evidence does not preclude the agency’s finding 

from being supported by substantial evidence. Matsushita Elec. Indus. Co. v. United 

States, 750 F.2d 927, 933 (Fed. Cir. 1984) (citing Consolo v. Fed. Mar. Comm’n, 383 

U.S. 607, 619-20 (1966)). The court may not “reweigh the evidence or . . . reconsider 

questions of fact anew.” Downhole Pipe & Equip., L.P. v. United States, 776 F.3d 1369, 

1377 (Fed. Cir. 2015) (quoting Trent Tube Div., Crucible Materials Corp. v. Avesta

Sandvik Tube AB, 975 F.2d 807, 815 (Fed. Cir. 1992)); see also Usinor v. United 

States, 28 CIT 1107, 1111, 342 F. Supp. 2d 1267, 1272 (2004) (citation omitted) (the 

court “may not reweigh the evidence or substitute its own judgment for that of the 

agency”).
Court No. 16-00073 Page 13

DISCUSSION

I. Legal Framework for Selecting Surrogate Financial Values

When an antidumping duty proceeding involves a nonmarket economy country, 

Commerce determines normal value by valuing the factors of production in a surrogate 

country, see 19 U.S.C. § 1677b(c)(1), and those values are referred to as “surrogate 

values.” In selecting surrogate values, Commerce must use “the best available 

information” that is, “to the extent possible,” from a market economy country or 

countries that are economically comparable to the nonmarket economy country and 

“significant producers of comparable merchandise.” Id. § 1677b(c)(4). 

Commerce has a regulatory preference for valuing financial ratios from a primary 

surrogate country based on the data’s “specificity, contemporaneity, and quality.” I&D 

Mem. at 8; see also 19 CFR § 351.408(c)(2), (4). However, Commerce may resort to a 

secondary surrogate country when data from the primary surrogate country does not 

provide a viable option for valuing a factor of production. I&D Mem. at 9 & n. 29 (citing 

FMC Corp. v. United States, 27 CIT 240, 251 (2003)). “When examining the merits of 

financial statements on the record,” Commerce “weigh[s the] available information” 

before deciding what constitutes the “best available information.” Id. at 8. 

Commerce generally rejects financial statements that reflect evidence of 

countervailable subsidies when it has “other, more reliable and representative data on 

the record.” Id. at 8 (citation omitted); see also 19 U.S.C. § 1677b(c)(5)(2015) (affording 

Commerce discretion to reject surrogate values “without further investigation if [it] has 
Court No. 16-00073 Page 14

determined that broadly available export subsidies existed or particular instances of 

subsidization occurred with respect to those [surrogate values]”).7

II. Plaintiffs Failed to Exhaust Certain Arguments in the Underlying 

Administrative Proceeding

Plaintiffs raise several objections to Commerce’s reliance on the Oceana Report 

to value financial ratios, some of which were not made to Commerce during the 

administrative proceeding. “[T]he Court of International Trade shall, where appropriate, 

require the exhaustion of administrative remedies.” 28 U.S.C. § 2637(d). The statute 

“indicates a congressional intent that, absent a strong contrary reason, the court should 

insist that parties exhaust their remedies before the pertinent administrative agencies.” 

Boomerang Tube LLC v. United States, 856 F.3d 908, 912 (Fed. Cir. 2017) (citation 

omitted). Administrative exhaustion generally requires a party to present all arguments 

in its administrative case and rebuttal briefs before raising those issues before this 

court. Dorbest Ltd v. United States, 604 F.3d 1363, 1375 (Fed. Cir. 2010); see also 

Rhone Poulenc, Inc. v. United States, 899 F.2d 1185, 1191 (Fed. Cir. 1990) (failure to 

raise a specific argument before Commerce precluded judicial review even if, as plaintiff 

contended, the argument was “simply another angle to an issue which it did raise before 

7 Section 1677b(c)(5) came into effect during the pendency of the underlying 

administrative proceeding. See Dates of Application of Amendments to the 

Antidumping and Countervailing Duty Laws Made by the Trade Preferences Extension 

Act of 2015, 80 Fed. Reg. 46,793, 46,795 (Dep’t Commerce Aug. 6, 2015) (clarifying 

that § 1677b(c)(5) applies “to determinations made on or after August 6, 2015”). The 

codification of Commerce’s discretion to reject subsidy-tainted financial statements is 

not determinative, however. The provision simply “clarifies [Commerce’s] authority for 

its existing practice, and does not impose any new requirements on the parties to 

[antidumping] proceedings.” Id.
Court No. 16-00073 Page 15

the [agency]”); Paul Muller Industrie GmbH & Co. v. United States, 31 CIT 1084, 1088, 

502 F. Supp. 2d 1271, 1275 (2007) (plaintiff failed to exhaust issues concerning freight, 

duties, and brokerage fees when it merely “raised general issues regarding inventory 

carrying costs” in the underlying proceeding). This “allow[s] the agency to apply its 

expertise, rectify administrative mistakes, and compile a record adequate for judicial 

review—advancing the twin purposes of protecting administrative agency authority and 

promoting judicial efficiency.” Vinh Hoan Corp. v. United States, 40 CIT ___, ___, 179 

F. Supp. 3d 1208, 1226 (2016) (citation omitted). 

With regard to Commerce’s methodology, Plaintiffs here contend that Commerce 

failed to adequately compare the Thai and South African statements, in contravention of 

Commerce’s policy and judicial precedent. See Pls.’ Mem. at 20-23 (citing Juancheng 

Kangtai Chemical Co., Ltd. v. United States, Slip Op. 15-93, 2015 WL 4999476 (2015),

and CP Kelco US, Inc. v. United States, Slip Op. 16-36, 2016 WL 1403657 (2016)). 

Plaintiffs further contend that Commerce failed to adequately explain how the Oceana 

Report provided the requisite information to value financial ratios in light of its 

insufficient disaggregation and lack of a specific line item for raw materials. See id. at 

14-16; Pls.’ Reply Br. (“Pls.’ Reply”) at 2-3, ECF No. 37. 

In addition to these general arguments, Plaintiffs now specifically point to 

Commerce’s allocation of “manufacturing overhead” to selling, general and 

administrative expenses, and surmise that manufacturing overhead may have been 
Court No. 16-00073 Page 16

double-counted under “cost of sales.” Pls.’ Mem. at 18; Pls.’ Reply at 8-9.8 Plaintiffs 

further contend that the amount for raw materials and energy includes an amount for the 

cost of goods purchased for trading that is not accounted for in the amount reflected by 

the change in finished goods. Pls.’ Reply at 4-7. Finally, Plaintiffs contend that the

Oceana Report does not reflect production or business processes that are comparable 

to Chinese crawfish manufacturers. Id. at 10-14. According to Plaintiffs, Oceana Group 

is a large multinational company that engages in disparate yet integrated activities. Id.

at 12 (disparate activities include producing goods and investing; indications of vertical 

integration include fishing, processing, and cold storage).

In briefing to Commerce, Weishan disputed the propriety of replacing the Thai 

financial statements Commerce had relied on in the Preliminary Results with financial 

ratios derived from the Oceana Report. See Weishan Rebuttal Br. at 1-12. Regarding 

the applicable legal framework, Weishan argued that Commerce must “compare the 

different sources of data available on the record and select the best source among the 

options based on the quality, specificity and contemporaneity of the data.” Id. at 2. 

However, the only specific problems Weishan identified with respect to the Oceana 

8 Plaintiffs contend that Defendant “concedes” that the Oceana Report is distorted from 

insufficient disaggregation and allocation of overhead expenditure to selling, general 

and administrative expenses. Pls.’ Reply at 9 (citing Def.’s Resp. at 17). On page 17 of 

its response, Defendant restated Plaintiffs’ arguments about disaggregation and 

allocation of overhead expenditure, and noted that, in the Preliminary Results,

Commerce had relied on Thai financial statements that did not segregate energy costs. 

Def.’s Resp. at 17. The court does not construe Defendant’s failure to address directly 

Plaintiffs’ arguments about the allocation of overhead in the Oceana Report as an 

implied concession as to the merits of those arguments.
Court No. 16-00073 Page 17

Report were that it contained a basket category for “cost of sales” and was insufficiently 

disaggregated because it lacked specific line items for labor and raw materials. See

Weishal Rebuttal Br. at 9.9 Accordingly, those are the only objections Commerce had 

notice of and an opportunity to address. See Trust Chem Co. Ltd. v. United States, 35

CIT ___, ___, 791 F. Supp. 2d 1257, 1268 n.27 (2011) (the “determinative question” is 

whether Commerce had notice of the disputed issue).

Weishan did not present to Commerce in the first instance its arguments about 

possible misallocation of overhead expenditure, inflation of the amount for raw materials 

by some unspecified amount for the cost of goods purchased for trading, or the 

incomparability of Oceana Group’s business and production experiences. See Weishan 

Rebuttal Br. at 9-10. Weishan certainly had notice that Commerce might rely on the 

Oceana Report because petitioners had suggested it do so in their case brief. See CPA 

Case Br. at 7-11. While Weishan sought to rebut CPA’s arguments, it did not take that 

opportunity to raise all the arguments they now raise to the court. See Weishan 

Rebuttal Br. at 9-10.

In an analogous case, the U.S. Court of Appeals for the Federal Circuit (“Federal 

Circuit”) recently rejected appellants’ attempt to raise arguments that had not been 

exhausted before the agency. See Boomerang Tube, 856 F.3d 908. The issue in that 

case was the amount to be used for constructed value profit. Id. at 910-912. Both 

9 Weishan had also argued that South Africa is not a significant producer of comparable 

merchandise. In light of the Remand Results, that issue is now moot. See Status 

Report at 1-2.
Court No. 16-00073 Page 18

Boomerang Tube LLC (“Boomerang”) (the petitioner) and Jubail Energy Services 

Company (“JESCO”) (the respondent) argued to the agency in their case briefs for 

alternatives to the constructed value profit used in the preliminary determination. Id. at 

910-11. In its rebuttal brief, Boomerang raised only one objection to an alternative data 

source proposed by JESCO and accepted by Commerce in its final determination. Id.

at 911. The Federal Circuit held that it was an abuse of discretion for the Court of 

International Trade to have allowed Boomerang to raise additional arguments against 

the particular data source proposed by JESCO without first having exhausted them 

before the agency. Id. at 912-13. 

Likewise, as discussed above, Plaintiffs here chose to exhaust some, but not all, 

of their arguments against using the data in the Oceana Report during the 

administrative proceeding. There are, of course, exceptions to the requirement of 

exhaustion, which may be applied at the court’s discretion. Previously enumerated 

exceptions include futility, an intervening court decision such that the new interpretation 

would impact the agency’s actions, pure questions of law, or when plaintiff had no 

reason to believe the agency would not follow established precedent. See Luoyang 

Bearing Factory v. United States, 26 CIT 1156, 1186, n.26, 240 F. Supp. 2d 1268, 1297

n.26 (2002) (collecting cases). The court has also found exceptions to exhaustion when 

a private party is denied access to critical information at a time when its case brief is 

due or when requiring exhaustion is burdensome such that it would result in “undue 

prejudice to subsequent assertion of a court action.” See Corus Staal BV v. United 
Court No. 16-00073 Page 19

States, 502 F.3d 1370, 1381 (Fed. Cir. 2007) (citation omitted). However, none of these 

exceptions apply here.10

Additionally, to the extent that Plaintiffs’ argument about the cost of goods 

purchased for trading is related to its concern with Commerce’s inability to disaggregate 

labor and raw materials, “[b]oth the Federal Circuit and this court have held that failure 

to raise a specific argument in a case brief, even if the general issue is addressed, 

constitutes a failure to exhaust administrative remedies.” Ad Hoc Shrimp Trade Action 

Comm. v. United States, 33 CIT 533, 545, 616 F. Supp. 2d 1354, 1366 (2009) (citing 

Rhone Poulenc, 899 F.2d at 1191) (declining to consider the merits of an argument 

characterized by plaintiff as “merely a greater explication of the same issue raised in 

[its] Administrative case brief below”); see also Paul Muller, 31 CIT at 1088, 502 F. 

Supp. 2d at 1275. Failing to raise this specific argument deprived Commerce of the 

opportunity to be “the initial decisionmaker” regarding Weishan’s assertion that a 

question about the cost of goods purchased for trading calls into question whether the 

Oceana Report constitutes the best available information for valuing surrogate financial 

10 The agency’s decision must be based on substantial evidence, 19 U.S.C. 

§ 1516a(b)(1)(B)(i), and be sufficiently well explained such that the path of its reasoning 

is discernible to the reviewing court, NMB Singapore Ltd. v. United States, 557 F.3d 

1316, 1319 (Fed. Cir. 2009). Bearing in mind, however, that the statute requires parties 

to exhaust their arguments before the agency, 28 U.S.C. § 2637(d), it would be 

inappropriate, if not unjust, for the court to expect the agency to anticipate and address 

arguments against the selection of a particular data point that were never presented to 

the agency in the first instance, particularly when the party had the information, 

opportunity, and incentive to have presented those arguments. See Rhone Poulenc,

899 F.2d at1191 (superseded by statute in other respects); Boomerang Tube, 856 F.3d 

908.
Court No. 16-00073 Page 20

ratios. See Itochu Bldg. Prods. v. United States, 733 F.3d 1140, 1145 (Fed. Cir. 2013)

(citing McCarthy v. Madigan, 503 U.S. 140, 145 (1992)); Vinh Hoan, 179 F. Supp. 3d at 

1226 (exhaustion enables the agency “to apply its expertise . . . and compile a record 

adequate for judicial review”) (citation omitted). 

Separately, CPA argues that the court should sustain the Final Results with 

regard to the administrative review and dissolve the preliminary injunction against 

liquidation of entries subject thereto because the administrative review Plaintiffs failed to 

exhaust administrative remedies by declining to file case or rebuttal briefs in that 

segment of the proceeding. CPA Resp. at 4-6. 

CPA is correct that the administrative and new shipper reviews represent 

different segments of the proceeding, and although Commerce aligned the schedules of 

the two reviews, it maintained separate administrative records. See CPA Resp. at 4 

(citing Cerro Flow Prods., LLC v. United States, 38 CIT ___, ___, 2014 WL 3539386 

(2014)); Alignment Ltr. CPA is also correct that Weishan filed its Rebuttal Brief 

protesting reliance on the Oceana Report solely in the new shipper review. See CPA 

Resp. at 2; Weishan Rebuttal Br., Cover Ltr. at 1 (submitting the brief in reference to the 

new shipper review). At oral argument, the Government clarified that it was not 

asserting the doctrine of administrative exhaustion against the administrative review

Plaintiffs because Commerce had examined surrogate values jointly for both reviews, 

relying on the same evidence and arriving at the same determination. 

This appears to be first time the court has been asked to address the doctrine of 

administrative exhaustion in the context of separate, but aligned, segments of a 
Court No. 16-00073 Page 21

proceeding, in relation to arguments raised on the record of one segment and not the 

other, but jointly examined by Commerce. In light of the decision on the merits of this 

case, the court need not resolve CPA’s argument. That being said, in fairness to all 

parties, going forward, Commerce would be well-advised to clarify the implications of 

aligning two segments of the same proceeding. Commerce could combine the records 

of the two segments, or notify parties that arguments raised in one segment may only 

be addressed in that segment. The court should not have to discern the implications of 

Commerce’s treatment of parties’ evidence and arguments in aligned proceedings post 

hoc. The court now turns to the merits of Plaintiffs’ exhausted arguments.11 

III. Commerce’s Decision to Rely on the Oceana Report to Value Financial 

Ratios was Supported by Substantial Evidence

As discussed above, Plaintiffs contend that Commerce failed to adequately 

explain its selection of the Oceana Report in light of its degree of aggregation, and 

failed to compare properly the Oceana Report to the Thai financial statements. Pls.’

Mem. at 14-18, 20-22; Pls.’ Reply at 2-3.12 In their respective briefs, the Government 

11 CPA also contends that none of the Plaintiffs may continue to challenge Commerce’s 

reliance on the Oceana Report because they did not comment on the draft remand 

redetermination. Status Report at 3. CPA did not, however, pursue the opportunity to 

explain its contention at oral argument. The court declines to require re-exhaustion of 

previously raised arguments. Commerce’s inquiry on remand was limited to its finding 

that South Africa is a significant producer of comparable merchandise. See Remand 

Results at 5, 6; Def.’s Remand Mot. at 3. Requiring Plaintiffs to submit to the agency 

arguments that had separately been raised to the court and were not expressly covered 

by the terms of the court’s remand order would serve no practical purpose. In the 

absence of any indication that the agency would reconsider these issues on remand, 

the court declines to require any further exhaustion.

12 Plaintiffs’ brief also contains a subsection titled, “[t]he two Thai financial statements 

are vastly superior to the Oceana [Report] on a comparative totality of circumstances 

analysis.” Pls.’ Mem. at 23 (capitalization omitted). Therein, Plaintiffs argue that the 
Court No. 16-00073 Page 22

and CPA emphasize Commerce’s ability to reject financial statements that reflect 

evidence of countervailable subsidies. See Gov. Resp. at 11-13; CPA Resp. at 7-8. 

The Government cites, in part, legislative history directing Commerce to avoid using 

prices it suspects may be subsidized and Federal Circuit case law sustaining 

Commerce’s rejection of subsidized prices to value certain inputs. See Gov. Resp. at 

11 (citing H.R. Rep. No. 100-576, at 590 (1988), as reprinted in 1988 U.S.C.C.A.N. 

1547, 1623); id. at 13 (citing CS Wind Vietnam Co., Ltd. v. United States, 832 F.3d 

Thai statements are superior to the Oceana Report because subsidy-distortion is a 

“lesser infirmity” than the defects in the Oceana Report, there are two Thai statements 

as opposed to one South African statement, Thailand is the primary surrogate country, 

Commerce has previously relied on the Thai statements, thus, predictability 

considerations favor their continued use, South Africa is not as significant a producer of 

comparable merchandise as is Thailand, and the Thai statements’ slight noncontemporaneity is not relevant. See id. at 23-29. In essence, Plaintiffs conduct the 

comparative analysis it asserts Commerce should have undertaken. See id. at 30-31. 

Plaintiffs’ arguments reflect a misunderstanding of the applicable standard of 

review. Plaintiffs’ arguments are premised, in part, on the contention that Commerce’s 

selection of the Oceana Report “is contradicted by substantial evidence.” Id. at 10 (so 

titling the heading under which the above-noted subsection is contained). That is not 

the court’s inquiry. Rather, the court must ascertain whether Commerce’s determination 

is supported by substantial evidence. 19 U.S.C. § 1516a(b)(1)(B)(i). In making that 

determination, the court considers evidence that “detracts from the substantiality of the 

evidence.” Nippon Steel Corp., 337 F.3d at 1379. But even if substantial evidence 

detracted from the agency’s determination, the determination is not necessarily 

unsupported by substantial evidence. In other words, substantiality does not require a 

“majority” of the evidence. See Nucor Corp., 34 CIT at 72, 675 F. Supp. 2d at 1345

(substantial evidence requires “more than a mere scintilla,” but “less than the weight of 

the evidence”). Moreover, it is not the role of the court to reweigh the evidence put 

before Commerce. Downhole Pipe, 776 F. 3d at 1377. If the evidence upon which the 

agency relies is such that “a reasonable mind might accept as adequate to support” its 

conclusion, Huaiyin Foreign Trade Corp. (30), 322 F. 3d at 1374, then, in keeping with 

the court’s standard of review, the court must affirm. 
Court No. 16-00073 Page 23

1367, 1374-75 (Fed. Cir. 2016)).13 CPA relies on 19 U.S.C. § 1677b(c)(5) and argues 

that Plaintiffs’ “entire brief is an argument for ‘further investigation’ of the subsidy-tainted 

Thai financial statements.” CPA Resp. at 7. At oral argument, the Government pointed 

to the Final Surrogate Value Memorandum and record evidence cited therein as 

evidence of Commerce’s weighing of the two sources of surrogate financial values. 

The court will uphold Commerce’s determination when the path to that 

determination is reasonably discernable from the determination itself. See NMB 

Singapore Ltd., 557 F.3d at 1319 (“Commerce must explain the basis for its decisions; 

while its explanations do not have to be perfect, the path of Commerce’s decision must 

be reasonably discernable to a reviewing court.”) (internal citations omitted).

Commerce’s reasoning adequately apprises the court of the path to its decision. 

Moreover, Commerce sufficiently compared the available financial statements in light of 

the arguments Weishan raised to the agency. 

In the Issues and Decision Memorandum, Commerce explained that the 2012 

financial statements of Thai companies Surapon and Kiang Huat demonstrated that 

they benefitted from countervailable subsidies. See I&D Mem. at 8. Commerce went 

on to find that South Africa met the statutory requirements of being economically 

comparable to the PRC and a significant producer of comparable merchandise, and that 

the Oceana Report was contemporaneous with the period of review. See id. at 9; see 

13 In CS Wind, the Federal Circuit affirmed Commerce’s decision to rely on surrogate 

values instead of Korean market prices to value certain inputs purchased in Korea and 

exported to Vietnam based on a reasonable suspicion that export subsidies existed with 

respect to those components. 832 F.3d at 1374-75.
Court No. 16-00073 Page 24

also Remand Results at 11 (affirming that South Africa is a significant producer of 

comparable merchandise). In response to Weishan’s concerns about the inability to 

disaggregate labor and raw material costs, Commerce asserted, in an admittedly 

conclusory fashion, that “we find that [the Oceana Report] contains the necessary 

information for [Commerce] to calculate appropriate financial ratios.” I&D Mem. at 9. 

Commerce’s cursory narrative response to Weishan’s argument is not, however, fatal. 

In that response, Commerce also cited to its discussion in the Final Surrogate Value 

Memorandum. See id. at 9 & n. 30.

In the Final Surrogate Value Memorandum, Commerce explained that it usually 

calculates the overhead ratio by dividing total overhead costs by the total costs of 

materials, labor, and energy. See Final Surrogate Value Mem. at 2. In the Preliminary 

Results, however, Commerce had been unable to apply this methodology because the 

Thai financial statements did not segregate energy costs from total overhead costs. 

See id. Accordingly, “in the Preliminary Results, [Commerce] applied [its] overhead 

ratio, which included energy costs, to the per-unit costs for materials and labor only[,] 

and did not calculate a separate per-unit cost for energy.” Id. In contrast, for the Final 

Results, reliance on the Oceana Report allowed Commerce to apply its usual 

methodology because it could determine the material, labor, and energy costs to include 

in the denominator of the overhead ratio as opposed to having some component, such 

as energy costs, included in the numerator. Id. Commerce cited the “surrogate value 

spreadsheets attached to the company-specific analysis memoranda” as evidence of its 

financial ratio calculations. Id.
Court No. 16-00073 Page 25

Therein, it is evident that although Commerce began with the aggregated cost of 

sales, it was able to segregate amounts for materials, labor, and energy to serve as the 

denominator for the overhead ratio calculation. See Weishan Final Results Analysis 

Mem., Attach. 7B (“Financial Ratios Spreadsheet”), PJA Doc. 19, NSR-PR 155, ECF 

No. 41. From the cost of sales, Commerce deducted amounts for depreciation, 

amortization, and operating lease expenses (reflecting manufacturing overhead costs

used in the numerator of the ratio); employment and retirement costs and share-based 

payments (reflecting labor costs to include in the denominator of the ratio); and changes 

to traded or finished goods. See id. Commerce used the resulting figure as the amount 

for raw materials. See id. While Commerce did not separately identify energy costs, it 

considered energy as included with the cost of raw materials in the denominator, as is 

its usual practice. See id. (combining the sum of materials and labor to determine the 

amount for material, labor, and energy costs to use in the denominator).14

Thus, Commerce addressed Weishan’s concerns with regard to the basket 

category for cost of sales and the aggregation of labor and raw materials therein in its 

discussion of its ability to use its preferred methodology in the Final Results. See Final 

Surrogate Value Mem. at 2. Reading the Issues and Decision Memorandum together 

with the Final Surrogate Value Memorandum, Commerce compared the Thai and South 

African statements and determined that the taint of countervailable subsidies in 

14 Plaintiffs argue that the denominator in the overhead ratio includes overhead that 

Commerce had been unable to subtract from the total cost of sales. Pls.’ Mem. at 16. 

Commerce’s accounting shows this not to be the case. See Financial Ratios 

Spreadsheet; see also CPA Resp. at 8-9 (responding the Plaintiffs’ argument). 
Court No. 16-00073 Page 26

conjunction with the disaggregation issues in the Thai statements outweighed any 

perceived flaws in the Oceana Report. See I&D Mem. at 8-9; Final Surrogate Value 

Mem. at 2. In particular, Commerce found that it was able to address the only identified 

weakness (the aggregation issue) within its calculation methodology and based on the 

information contained in the Oceana Report. The Financial Ratios Spreadsheet itself 

provides substantial support for Commerce’s determination. See Financial Ratios 

Spreadsheet. Commerce cannot be faulted for failing otherwise to address alleged 

deficiencies that Weishan failed to raise to the agency. Moreover, the cases relied on 

by Plaintiffs do not require a different outcome. See Pls.’ Mem. at 20-23 (citing 

Juancheng, 2015 WL 4999476, CP Kelco, 2016 WL 1403657). 

In Juancheng, Commerce relied on Philippine financial statements from a 

company the plaintiff contended had received countervailable subsidies, and rejected 

Thai financial statements it had deemed insufficiently detailed. 2015 WL 4999476 at 

*12. The court explained that “[t]he decision on whether to rely on a particular financial 

statement (even one tainted, arguendo, by subsidies) is record-dependent, . . . and it is 

not for the court to choose between arguably untainted but incomplete data and 

arguably complete but tainted data, as that is Commerce's province.” Id. at *13 (internal 

citations omitted). Juancheng, therefore, stands for the proposition that Commerce’s 

selection of financial statements is “record-dependent” and, thus, not subject to per se 

rules of exclusion. Id. So too here, Commerce’s selection of the Oceana Report 

depended upon its finding that material, labor, and energy costs were sufficiently 
Court No. 16-00073 Page 27

identified for it to apply its preferred methodology for calculating the overhead ratio. 

See Final Surrogate Value Mem. at 2; I&D Mem. at 9.

In CP Kelco, Commerce had selected subsidy-tainted Thai financial statements 

over incomplete Thai financial statements to value financial ratios. 2016 WL 1403657 at 

*2. The court had remanded for Commerce to further explain why the subsidy-tainted 

statements were better than the incomplete statements. Id. (“Commerce should have 

compared the two side-by-side.”) (internal quotation marks and citation omitted). 

Following remand, the court again found that Commerce had insufficiently compared 

the statements’ relative strengths and weaknesses. Id. at *5. In contrast, here, 

Commerce addressed the weaknesses Weishan had identified in the Oceana Report, 

and found, based on Commerce’s ability to allocate certain figures to the numerator or 

denominator of the overhead ratio calculation, that the weaknesses were non-existent. 

See Final Surrogate Value Mem. at 2; I&D Mem. at 9. A fuller elaboration is not 

required. See NMB Singapore Ltd., 557 F.3d at 1319 (“Commerce must explain the 

basis for its decisions; while its explanations do not have to be perfect, the path of 

Commerce’s decision must be reasonably discernable to a reviewing court.”) (internal 

citations omitted).
Court No. 16-00073 Page 28

CONCLUSION

In accordance with the foregoing, the court sustains Commerce’s Final Results,

as corrected by the Am. Final Results and as amended by the Remand Results.

Judgment will be entered accordingly. 

/s/ Mark A. Barnett

Mark A. Barnett, Judge

Dated: October 25, 2017

New York, New York