CIT Chief Judge Pogue directed Commerce to better explain or otherwise reconsider its labor rate – as he did last year. Commerce was again faulted for failing to address evidence that supported the agency’s previous use of multiple country labor data in the surrogate valuation to calculate duties on imports from nonmarket economy countries. The CIT rejected Commerce’s claimed basis for continuing to favor the Bangladeshi data over other labor data on the record: Commerce’s attempt to avoid the troubling disparities between the surrogate values for labor by suggesting that the datasets are not comparable is unpersuasive. Commerce provides no justification for its conclusion of incomparability other than the different levels of aggregation – a distinction that, absent further explanation, is not a meaningful difference.
The Court of International Trade today issued a remand for the Commerce Department to reconsider the labor rate used to calculate duties in the fifth administrative review of the antidumping duty order on shrimp from Vietnam. PKR brought the case on behalf of the Ad Hoc Shrimp Trade Action Committee, an association of domestic producers of frozen warmwater shrimp, challenging the $0.21 hourly wage rate derived exclusively from Bangladeshi data. The Commerce Department had preliminarily calculated duties using a $1.09 hourly rate that averaged multiple country data, but abruptly changed course late in the review.
The remand results are due on September 30, 2013. While Commerce may persist in its defense of the $0.21 rate, the agency must address the labor data on the record suggesting that use of the Bangladeshi data results in distorted or inaccurate calculations. Moreover, the CIT made clear that Commerce cannot merely rely on its new policy: it is not sufficient for Commerce to cite the policy of using a single surrogate country where, as here, there is reason to believe that the primary surrogate country may not provide the best available information.