Cs Wind Vietnam Co., Ltd. v. United States , 832 F.3d 1367 ( 2016 )

United States Court of Appeals
for the Federal Circuit
______________________
CS WIND VIETNAM CO., LTD.,
CS WIND CORPORATION,
Plaintiffs-Appellants
v.
UNITED STATES,
WIND TOWER TRADE COALITION,
Defendants-Appellees
______________________
2015-1850
______________________
Appeal from the United States Court of International
Trade in No. 1:13-cv-00102-JAR, Senior Judge Jane A.
Restani.
______________________
Decided: August 12, 2016
______________________
NED H. MARSHAK, Grunfeld, Desiderio, Lebowitz, Sil-
verman & Klestadt LLP, New York, NY, argued for
plaintiffs-appellants. Also represented by BRUCE M.
MITCHELL; DHARMENDRA NARAIN CHOUDHARY, KAVITA
MOHAN, ANDREW THOMAS SCHUTZ, Washington, DC;
ANDREW SCHROTH, Hong Kong, China.
JOSHUA E. KURLAND, Commercial Litigation Branch,
Civil Division, United States Department of Justice,
Washington, DC, argued for defendant-appellee United
2 CS WIND VIETNAM CO., LTD. v. US
States. Also represented by BENJAMIN C. MIZER, JEANNE
E. DAVIDSON, REGINALD T. BLADES, JR.
ROBERT E. DEFRANCESCO III, Wiley Rein, LLP, Wash-
ington, DC, for defendant-appellee Wind Tower Trade
Coalition. Also represented by DANIEL B. PICKARD, DERICK
HOLT, USHA NEELAKANTAN.
______________________
Before PROST, Chief Judge, TARANTO and CHEN, Circuit
Judges.
TARANTO, Circuit Judge.
The Commerce Department determined that a Viet-
namese manufacturer of wind towers was selling its
products in the United States at about 51.5% below
normal value, a figure that Commerce calculated using
methods made applicable by statute when imported goods
come from a nonmarket economy, as the wind towers at
issue here do. The company challenges three aspects of
Commerce’s calculation upheld by the Court of Interna-
tional Trade: Commerce’s selection of data to determine
the weight of the manufacturer’s products; Commerce’s
presumption-based premise that the company’s supplier
received subsidies from the Korean government; and
Commerce’s calculation of certain overhead expenses for
inclusion in the base of costs that go into normal value.
We reverse as to Commerce’s weight calculation; affirm as
to Commerce’s treatment of Korean subsidies; and vacate
and remand as to Commerce’s overhead-expense calcula-
tion.
BACKGROUND
A
In December 2011, the Wind Tower Trade Coalition
petitioned the Department of Commerce to impose anti-
dumping duties under 19 U.S.C. § 1673 et seq. on wind
CS WIND VIETNAM CO., LTD. v. US 3
towers imported into the United States from Vietnam.
See Utility Scale Wind Towers From the People’s Republic
of China and the Socialist Republic of Vietnam, 77 Fed.
Reg. 3,440, 3,440 (Dep’t of Commerce Jan. 24, 2012). The
Coalition alleged that such imported towers were being
sold in the United States at less than fair value. Id. The
Commerce Department conducted an investigation into
whether, in particular, CS Wind Vietnam was engaged in
such dumping. 1 As relevant here, CS Wind produces
wind towers in Vietnam and ships them in sections to the
United States, where they are assembled and erected.
J.A. 73; Utility Scale Wind Towers from China & Vi-
etnam, Inv. No. 701-TA-486, 2013 WL 1155424, at *5
(USITC Feb. 2013).
As part of its investigation, Commerce calculated the
“normal value,” i.e., the price at which the product is sold
or offered for sale in the exporting country. 19 U.S.C.
§ 1677b(a)(1)(B). If the normal value exceeds the price at
which the product is sold in the United States, and other
required findings are made, Commerce is to make a
finding of dumping and impose a duty based on the differ-
ence—the dumping margin. Id. §§ 1673, 1677(35)(A); see
Dorbest Ltd. v. United States, 604 F.3d 1363, 1367 (Fed.
Cir. 2010); Ningbo Dafa Chem. Fiber Co., Ltd. v. United
States, 580 F.3d 1247, 1250 (Fed. Cir. 2009). In percent-
age terms based on export prices for the towers shipped to
the U.S., Commerce calculated a 51.5% “weighted average
dumping margin” for CS Wind. 19 U.S.C. § 1677(35)(B);
Utility Scale Wind Towers From the Socialist Republic of
Vietnam: Final Determination of Sales at Less Than Fair
Value, 77 Fed. Reg. 75,984, 75,988 (Dep’t of Commerce
Dec. 26, 2012) (2012 Final Determination).
1 Unless context indicates otherwise, “CS Wind” in
this opinion refers collectively to both appellants—CS
Wind Vietnam and its parent, CS Wind Corporation.
4 CS WIND VIETNAM CO., LTD. v. US
It is undisputed here that Vietnam has a “nonmarket
economy,” in which prices “do not reflect the fair value of
the merchandise.” 19 U.S.C. § 1677(18)(A). Because CS
Wind operated in a nonmarket economy, Commerce
calculated the normal value pursuant to 19 U.S.C.
§ 1677b(c)’s special rules for such economies. See Dorbest,
604 F.3d at 1367 (describing such rules). Under those
rules, Commerce was to calculate a normal value for the
wind towers based on the “value of the factors of produc-
tion utilized in producing the merchandise” plus “an
amount for general expenses and profit plus the cost of
containers, coverings, and other expenses”; and “the
valuation of the factors of production” was to be “based on
the best available information regarding the values of
such factors in a market economy country or countries
considered to be appropriate.” 19 U.S.C. § 1677b(c)(1).
Commerce was to use, “to the extent possible, the prices
or costs of factors of production in one or more market
economy countries that are—(A) at a level of economic
development comparable to that of the nonmarket econo-
my country, and (B) significant producers of comparable
merchandise.” Id. § 1677b(c)(4). The object, under that
approach, is “to construct a hypothetical normal value for
the merchandise that is uninfluenced by the nonmarket
economy.” Jiaxing Brother Fastener Co. v. United States,
822 F.3d 1289, 1292 (Fed. Cir. 2016); see Downhole Pipe &
Equip., L.P. v. United States, 776 F.3d 1369, 1375 (Fed.
Cir. 2015). Here, Commerce used “surrogate values” from
India, a market economy, to calculate values for various
elements of the normal value of CS Wind’s towers. J.A.
1298–99.
Three of Commerce’s determinations are pertinent to
the present appeal. First, after translating certain Indian
prices into U.S. dollars per kilogram, Commerce had to
multiply that per-kilogram price by the weight (in kilo-
grams) of the CS Wind components. In arriving at the
CS WIND VIETNAM CO., LTD. v. US 5
weight of CS Wind’s products, Commerce decided not to
use the weights CS Wind reported for its various factors
of production. Instead, it used the weights indicated on
certain packing slips prepared by one of CS Wind’s cus-
tomers for the necessary transocean shipping of the
sections of the towers. J.A. 126–27. CS Wind challenges
that decision.
Second, for certain components, i.e., flanges, welding
wire, and wire flux inputs, CS Wind asked Commerce to
use the actual prices CS Wind paid for them when buying
them from a manufacturer in Korea—a market economy.
Commerce denied the request. Based on a determination
in earlier proceedings that certain goods exported from
Korea are eligible for subsidies, Commerce presumed that
CS Wind’s purchases benefited from such subsidies, and it
then found that CS Wind had provided insufficient evi-
dence to rebut the presumption. J.A. 65–68. Commerce
therefore used Indian surrogate values for the prices of
those components, rather than the prices CS Wind actual-
ly paid. CS Wind challenges that decision.
Third, Commerce used the financial statements of an
Indian company, Ganges International, which sells iden-
tical and comparable wind towers, J.A. 50, to calculate the
required contribution to normal value from, in particular,
“general expenses,” 19 U.S.C. § 1677b(c)(1)—here, over-
head, selling, general, and administrative expenses
(which, following Commerce’s usage, we call “overhead”
for short). J.A. 220–21. One of the Ganges-reported
expense line items that Commerce included in overhead
was “Jobwork Charges (including Erection and Civil
Expenses).” J.A. 737, 204. The following meanings of
those terms are not disputed before us. Firm A incurs
“jobwork” expenses when it pays Firm B to provide manu-
facturing services for A (presumably, therefore, working
with raw materials A has supplied to B), with the result-
ing manufactured goods then transferred to A for A to
sell. In the wind-tower setting, “erection and civil” ex-
6 CS WIND VIETNAM CO., LTD. v. US
penses are payments for preparing the foundation on
which to set a tower (“civil”) and for setting up the tower
on the foundation (“erection”)—which we infer are pay-
ments to outsiders where, as here, they are listed as
“includ[ed]” in “jobwork.” See CS Wind Br. 49 (quoting
J.A. 1712); U.S. Br. 7 n.2; J.A. 221, 740. (We may refer to
the two activities together as “tower setup.”)
CS Wind asked Commerce to reduce the 212,380,751
rupee figure for those jobwork expenses by certain income
amounts for what CS Wind alleges are corresponding
items, namely, “Erection income” (90,856,566 rupees) and
“Civil income” (51,931,347 rupees)—totaling 142,787,913
rupees—which Ganges reported as income separate from
the income from its “Sales.” J.A. 733. CS Wind’s request
would have resulted in including only 69,592,838 rupees
of Jobwork Charges in overhead (212,380,751 minus
142,787,913), but Commerce denied the request. Instead,
it reduced the “Jobwork Charges (including Erection and
Civil Expenses)” only by the tiny amount (2,085,029
rupees) of Ganges-reported income for “Sales – Jobwork,”
J.A. 736. 2 Commerce thus included 210,295,722 rupees of
“Jobwork Charges (including Erection and Civil Expens-
2 Given the undisputed meaning of “Jobwork
Charges,” “Sales – Jobwork” would seem to refer to Gan-
ges-performed manufacturing services for other firms,
which would then sell the resulting merchandise, not to
Ganges-purchased manufacturing services from other
firms involving merchandise that Ganges would then sell.
It is not apparent how the two “jobwork” items could
relate to the same units or why the Ganges-performed
jobwork should affect the amount of overhead expenses
for Ganges-sold units. Although Commerce later changed
its approach to the overhead issue in various ways, it
“continue[d] to permit an offset for the full amount of
income generated from sales of jobwork.” J.A. 214 n.41.
CS WIND VIETNAM CO., LTD. v. US 7
es)” as overhead in calculating normal value. See J.A.
221–22.
In response to CS Wind’s challenge to that decision in
the present litigation, Commerce eventually adopted a
different approach to deciding what amount of the “Job-
work Charges (including Erection and Civil Expenses)” to
include in overhead. In some but not all of its descrip-
tions, Commerce characterized its new approach as try-
ing, like CS Wind’s approach, to exclude from overhead
costs the portion of the “Jobwork Charges (including
Erection and Civil Expenses)” line item that were tied to
erection and civil income. J.A. 161, 175. But whereas CS
Wind did so by simply subtracting the “Erection income”
and “Civil income” amounts, Commerce sought to achieve
a similar goal by a more complex ratio calculation, using
certain aspects of the income and expense sides of the
financial statements. Commerce’s final approach reduced
the 212,380,751 rupees of “Jobwork Charges (including
Erection and Civil Expenses)” by 8.62%. J.A. 209. The
result was to include more than 194,000,000 rupees from
the Jobwork Charges line item as overhead, far more than
the roughly 70,000,000 rupees CS Wind urged. CS Wind
challenges Commerce’s final approach to this aspect of the
normal-value calculation.
B
In August of 2012, Commerce published a preliminary
determination that CS Wind had engaged in dumping.
Utility Scale Wind Towers From the Socialist Republic of
Vietnam: Preliminary Determination, 77 Fed. Reg.
46,058, 46,058 (Dep’t of Commerce Aug. 2, 2012). In
December of that year it made certain modifications and
made its dumping determination final. 2012 Final De-
termination, supra. After the International Trade Com-
mission determined under 19 U.S.C. § 1673d(b) that a
U.S. industry was materially injured or threatened with
material injury by imports of wind towers from Vietnam,
8 CS WIND VIETNAM CO., LTD. v. US
Commerce published an amended final determination,
correcting ministerial errors in its 2012 final determina-
tion. Utility Scale Wind Towers From the Socialist Re-
public of Vietnam: Amended Final Determination of Sales
at Less Than Fair Value and Antidumping Duty Order,
78 Fed. Reg. 11,150 (Dep’t of Commerce Feb. 15, 2013).
CS Wind filed an action in the Court of International
Trade challenging Commerce’s determination under 19
U.S.C. § 1516a(a)(2) & (b)(1)(B)(i) and 28 U.S.C. § 1581(c).
As relevant here, the Court of International Trade on
March 27, 2014, affirmed in part and remanded in part.
J.A. 100–40. It affirmed Commerce’s use of the packing-
weight figures rather than the component weights CS
Wind reported. J.A. 126–27. It also affirmed Commerce’s
determination not to use the Korean prices for certain
components. J.A. 137. But it remanded on the issue of
jobwork expenses, holding that if Commerce, using the
Ganges financial statements, were to account for the
reported jobwork charges including erection and civil
expenses, it must also account for the reported erection
income and civil income. J.A. 123–24. In particular, the
court ruled that the two must be “treated similarly under
Commerce’s practice, either including both as overhead or
excluding both from the calculation, unless Commerce
explains why different treatment is warranted.” J.A. 124.
On remand, Commerce issued a determination on Ju-
ly 29, 2014. J.A. 145–81. It abandoned its initial inclu-
sion of all jobwork charges, including civil and erection
expenses, in favor of a new approach that Commerce here
describes as attempting to exclude “the proportion of the
jobwork expenses relating to erection and civil activities,
so that jobwork expenses and associated income were
treated consistently.” U.S. Br. 10; see J.A. 160–62, 175–
78. On review, the Court of International Trade on No-
vember 3, 2014, again remanded. J.A. 183–99. It con-
cluded that “Commerce is still treating expense and
income line items differently without stating an accepta-
CS WIND VIETNAM CO., LTD. v. US 9
ble reason,” and it required “recalculation or further
explanation.” J.A. 196–97. On January 20, 2015, Com-
merce issued its Final Redetermination, fundamentally
following its initial redetermination approach but making
some modifications. J.A. 203–16. This time, the Court of
International Trade affirmed, producing a final judgment.
J.A. 218–34.
We have jurisdiction to hear CS Wind’s appeal under
28 U.S.C. § 1295(a)(5).
DISCUSSION
A
We begin with CS Wind’s challenge to the calculation
of the weight of its products. In determining the weight of
the CS Wind products (to be multiplied by the surrogate
per-kilogram values), Commerce had available two
sources of information: CS Wind’s listing of the compo-
nents of the wind towers and their weights, produced to
and verified by Commerce during the investigation, J.A.
124–25, 317–43; and packing slips containing customer-
supplied (not manufacturer-supplied) weight estimates for
tower sections to provide center-of-gravity information for
the transocean shipping, J.A. 835, see J.A. 56–57. Com-
merce chose to use the weights reflected on the packing
slips, J.A. 55–57, which were higher than the weights CS
Wind reported for the components, J.A. 1341. The choice
of higher weights increased the calculated “normal value”
and, therefore, the dumping margin and the duty.
Commerce does not dispute that, in this decision, it
was seeking to use the best available evidence for an
accurate assessment. See Shakeproof Assembly Compo-
nents, Div. of Illinois Tool Works, Inc. v. United States,
268 F.3d 1376, 1382 (Fed. Cir. 2001) (“In determining the
valuation of the factors of production, the critical question
is whether the methodology used by Commerce is based
on the best available information and establishes anti-
10 CS WIND VIETNAM CO., LTD. v. US
dumping margins as accurately as possible.”); see Ningbo
Dafa, 580 F.3d at 1257 (same). Commerce necessarily
decided, therefore, that the packing lists provided more
accurate information about weight than did CS Wind’s
records. The question before us is whether that determi-
nation is supported by substantial evidence. 19 U.S.C.
§ 1516a(b)(1)(B)(i); see F.lli De Cecco Di Filippo Fara S.
Martino S.p.A. v. United States, 216 F.3d 1027, 1031 (Fed.
Cir. 2000).
Substantial evidence “means such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” Universal Camera Corp. v. N.L.R.B., 340
U.S. 474, 477 (1951). “The substantiality of evidence
must take into account whatever in the record fairly
detracts from its weight.” Gerald Metals, Inc. v. United
States, 132 F.3d 716, 720 (Fed. Cir. 1997) (internal quota-
tions omitted, alterations in original). Here, the question
is whether the record supplies a basis for Commerce
reasonably to find that the packing-weight information
was more accurate than the CS Wind component-weight
information. We conclude that Commerce has not provid-
ed a sufficient basis for using the packing weights rather
than the component weights reported by CS Wind.
CS Wind documented the sources, including commer-
cial invoices, for the weights it reported to Commerce, J.A.
822, 824, 827, and Commerce verified those figures to the
extent it deemed necessary (making certain adjust-
ments). 3 On the other hand, Commerce “acknowledge[d]
3 Commerce followed verification procedures to ex-
amine the reported weights pursuant to 19 U.S.C.
§ 1677m(i). It recalculated CS Wind’s calculation of its
components’ weights using CS Wind’s theoretical weight
values, J.A. 822, 847; traced the consumption of compo-
nents for the period under investigation to CS Wind’s
inventory ledger, J.A. 823; and traced the reported
CS WIND VIETNAM CO., LTD. v. US 11
that the packed weights are based on certain estima-
tions,” J.A. 58; U.S. Br. 21 (“It is undisputed that Packed
Weight is an estimated weight.”), made by customers, not
the manufacturer. “Commerce determined that the total
Packed Weight of a section is based on center-of-gravity
calculations provided by CS Wind’s customers for purpos-
es of optimally positioning the wind tower section on the
shipping vessel to maintain correct balance.” U.S. Br. 18,
citing J.A. 57, 835.
In nevertheless choosing the customer-estimated fig-
ures over the manufacturer-reported, Commerce-verified
ones, Commerce gave what amounts to a single reason—
which, we conclude, lacks the evidentiary support that
would be required in order for it to justify choosing the
packing weights. Commerce stated that it was “unrea-
sonable to assume that the weight of the wind tower
section recorded in the packing lists is so grossly overesti-
mated as to chance the misplacement of the wind tower
section on a shipping vessel and risk an imbalance of the
vessel or rolling of the tower section in transit.” J.A. 57
(emphasis added; footnote citing J.A. 1341 omitted); see
J.A. 58 (“considering the importance of the use of the
packed weight for shipping purposes, it is not unreasona-
ble to assume that the packed weights and the [compo-
nent] weights should be similar”). In this court,
Commerce confirms what the italicized phrase indicates:
the basis of Commerce’s choice was the “material extent of
the discrepancy between the two weights” (the packing
weights and the component weights). U.S. Br. 22 (em-
phasis added). Underscoring the centrality to Com-
merce’s rationale of the size of the weight discrepancy,
Commerce states three times that the packed-list weight
weights of some components to technical drawings, J.A.
805. Commerce did not itself weigh CS Wind’s compo-
nents. J.A. 125.
12 CS WIND VIETNAM CO., LTD. v. US
for “the internal components” was “nearly double” CS
Wind’s reported weight for those components. U.S. Br.
13, 18, 22.
The problem with that basis grows out of the fact that
the doubling is only of a very small fraction—the “internal
components”—of the overall tower weights. As the Com-
merce-cited J.A. 1341 indicates, the entire weight dis-
crepancy between the CS Wind figures and the packing-
list figures lies in the internal components, and that
discrepancy as a percent of the weight of the overall
towers is less than 4%. But there is no evidence that
either (a) a mere 4% difference in overall weight or (b) the
specific difference in weight figures for the small internal-
components portion of the towers would make a difference
in maintaining balance on the vessels used for transporta-
tion here. And we have no basis for thinking that either
premise is a matter of common knowledge or otherwise
can be presumed true without evidence. In the absence of
such evidence, there is no reasonable basis for Com-
merce’s conclusion that it should assume that the pack-
ing-list weight is more accurate because the shipping-
balance purpose demanded the assumption.
Because the reason Commerce offers for using the
packed weights is without record support, we find Com-
merce’s choice to be unsupported by substantial evidence.
We therefore reverse the Court of International Trade’s
affirmance of that choice and direct Commerce to use the
manufacturer-reported weights in its calculation.
B
We turn next to the issue of Korean subsidies. CS
Wind purchased three categories of components from a
supplier in Korea and exported those components to
Vietnam. J.A. 65. Under the statute, if Commerce de-
termines that “broadly available export subsidies existed”
with respect to such a foreign purchase, Commerce may
“disregard” the presumably subsidized prices, using
CS WIND VIETNAM CO., LTD. v. US 13
surrogate values to calculate normal value instead. 19
U.S.C. § 1677b(c)(5). Here, Commerce relied on previous
determinations to find that Korea maintains “broadly
available, non-industry-specific export subsidies.” J.A. 65,
1510 n.3. Commerce ultimately relied on that basis to
reject use of CS Wind’s Korean purchase prices and use
surrogate values instead. J.A. 66. In this court, CS Wind
has not challenged Commerce’s conclusion that export
subsidies are generally available, so we simply accept that
conclusion here, without reviewing its basis. CS Wind Br.
33–40. But CS Wind contends that the evidence required
Commerce to find that no subsidies affected CS Wind’s
particular purchases and therefore to use the actual
prices CS Wind paid for those items, not surrogate values
for those items, in the calculation of normal value. The
Korean prices are lower than the surrogate values, so
using them would lower the “normal value” and hence the
dumping margin and resulting duties.
Commerce relied on the generally available Korean
subsidies to reject use of the Korean prices, concluding
that it had a reasonable basis to believe or suspect that
CS Wind’s purchases of flanges, welding wire, and wire
flux benefited from such subsidies and that CS Wind did
not persuasively show there was in fact no such benefit.
J.A. 65–68. Nothing in the statute precludes that ap-
proach to choosing whether to use surrogate values or
particular market purchases here. Indeed, the statute
states that Commerce “may disregard price or cost values
without further investigation if the administering author-
ity has determined that broadly available export subsidies
existed.” 19 U.S.C. § 1677b(c)(5); see also H.R. REP. NO.
100-576, at 590–91 (1988) (Conf. Rep.) (“In valuing [the
factors of production], Commerce shall avoid using any
prices which it has reason to believe or suspect may be
dumped or subsidized prices. However, the conferees do
not intend for Commerce to conduct a formal investigation
to ensure that such prices are not dumped or subsidized,
14 CS WIND VIETNAM CO., LTD. v. US
but rather intend that Commerce base its decision on
information generally available to it at that time.”). And
we have been given no basis on which to conclude that
this approach, essentially a presumption-based approach,
is an unreasonable way of implementing the statute.
Thus, with CS Wind not challenging Commerce’s find-
ing that subsidies were available for export transactions
in Korea, Commerce reasonably required CS Wind to
demonstrate that it received no subsidies for the particu-
lar purchases in question. See Hangzhou Spring Washer
Co. v. United States, 387 F. Supp. 2d 1236, 1248 (Ct. Int’l
Trade 2005); Luoyang Bearing Corp. v. United States, 347
F. Supp. 2d 1326, 1342 (Ct. Int’l Trade 2004). We con-
clude that substantial evidence supports Commerce’s
conclusion that CS Wind did not make its case.
CS Wind has relied on the following bases for its con-
tention that its purchases did not benefit from the Korean
export subsidies: a statement from a Finance Manager
stating that CS Wind itself had not received subsidies on
the purchase in question, J.A. 673; emails from two
individuals at two vendors—one a “Deputy General
Manager/Team Leader, Sales & Marketing team,” the
other a Product Manager—both emails indicating that the
vendors did not apply for or receive export subsidies, J.A.
675, 677; and the contention that the initial purchase of
the components at issue here was made by CS Wind
Corporation, a Korean company that owns CS Wind
Vietnam (to which they were then shipped), and the
Korean parent was not eligible for any export subsidies.
CS Wind Br. 38–41.
Commerce could reasonably reject CS Wind’s case as
not comprehensive or definitive enough, at least in light of
other evidence, to show that subsidies did not affect the
purchases at issue. The generally available subsidies
were for exports. Commerce cites several Certificates of
Origin that, while listing CS Wind Vietnam as the “Con-
CS WIND VIETNAM CO., LTD. v. US 15
signee,” list CS Wind’s supplier as the “Exporter,” which
therefore could well have taken advantage of export
subsidies. A box labeled “Declaration by the Exporter” is
signed by the supplier, not by CS Wind Vietnam. And
several invoices list CS Wind Corp. in Korea, not CS Wind
Vietnam, as the “Shipper/Exporter.” The parent corpora-
tion could have taken advantage of the export subsidies.
An invoice and a certificate of inspection, though showing
the product as being purchased by CS Wind’s Korean
parent, referred to the “MidAmerican (Vietnam)” project,
perhaps indicating that the manufacturer was aware that
the product was destined for Vietnam. And “Certificate[s]
of Material” from the supplier list the customer not as CS
Wind Corp. in Korea, but as CS Wind, Ltd., i.e., the
Vietnamese company.
This issue required a judgment about evidence.
Commerce reasonably made that judgment, finding that
CS Wind did not demonstrate that the purchases at issue
were unaffected by the generally available export subsi-
dies in Korea. Commerce could therefore choose to use
surrogate values for those components of the wind towers,
rather than the prices of the Korean purchases.
C
Finally, we consider CS Wind’s challenge to Com-
merce’s determination of how much of the “Jobwork
Charges (including Erection and Civil Expenses)” line
item on the Ganges financial statements to include as
overhead expenses. CS Wind challenges (a) Commerce’s
rejection of its proposal simply to subtract from the
amount of that expense line item the income line items for
“Erection income” and “Civil income” and (b) Commerce’s
ultimate adoption instead of a complicated alternative
approach. We conclude that a further remand is needed,
because Commerce has failed to meet its obligation to set
forth a comprehensible and satisfactory justification for
16 CS WIND VIETNAM CO., LTD. v. US
its approach as a reasonable implementation of statutory
directives supported by substantial evidence.
1
Under the review provision invoked by the parties, we
are obliged to set aside Commerce’s determination if it is
“unsupported by substantial evidence on the record[ ] or
otherwise not in accordance with law.” 19 U.S.C.
§ 1516a(b)(1)(B)(i). To fulfill that obligation, we insist
that Commerce “examine the record and articulate a
satisfactory explanation for its action.” Yangzhou Bestpak
Gifts & Crafts Co., Ltd. v. United States, 716 F.3d 1370,
1378 (Fed. Cir. 2013). Although we uphold “a decision of
less than ideal clarity if the agency’s path may reasonably
be discerned,” Bowman Transp., Inc. v. Arkansas-Best
Freight Sys., Inc., 419 U.S. 281, 286 (1974), the required
explanation must reasonably tie the determination under
review to the governing statutory standard and to the
record evidence by indicating what statutory interpreta-
tions the agency is adopting and what facts the agency is
finding. Such an explanation enables us to fulfill our
review function and also to avoid making choices reserved
to the agency, i.e., to avoid violating the principle of SEC
v. Chenery, 318 U.S. 80, 88 (1943), under which a review-
ing court “may not affirm on a basis containing any ele-
ment of discretion—including discretion to find facts and
interpret statutory ambiguities—that is not the basis the
agency used, since that would remove the discretionary
judgment from the agency to the court.” ICC v. Brother-
hood of Locomotive Eng’rs, 482 U.S. 270, 283 (1987).
In another case in which we remanded to Commerce
for a more satisfactory explanation, we explained that it is
necessary for Commerce to explain the factual set-
tings for the calculations at issue, and explain ex-
actly how those calculations are made. The
antidumping statute is highly complex and often
confusing, and we accordingly rely on Commerce
CS WIND VIETNAM CO., LTD. v. US 17
in its antidumping determinations to make sense
of that statute. The more complex the statute, the
greater the obligation on the agency to explain its
position with clarity. If the Court of International
Trade and this court are to play their statutorily
required roles in reviewing Commerce’s determi-
nations, it is important that we have clear guid-
ance from Commerce as to what is actually
happening. [¶] Once Commerce explains its actu-
al methodology for the calculation of constructed
value profit, it should explain why its methodolo-
gy comports with the statute.
SKF USA, Inc. v. United States, 263 F.3d 1369, 1382–83
(Fed. Cir. 2001); see Pension Benefit Guar. Corp. v. LTV
Corp., 496 U.S. 633, 654 (1990) (reading precedent as
“mandating that an agency take whatever steps it needs
to provide an explanation that will enable the court to
evaluate the agency’s rationale at the time of decision”);
Burlington Truck Lines, Inc. v. United States, 371 U.S.
156, 167–68 (1962); see also NMB Singapore Ltd. v.
United States, 557 F.3d 1316, 1320 (Fed. Cir. 2009);
Timken U.S. Corp. v. United States, 421 F.3d 1350, 1354–
57 (Fed. Cir. 2005) (discussing 19 U.S.C. § 1677f(i)).
Two aspects of this requirement are worthy of particu-
lar note here. First, an agency’s “experience and exper-
tise” (U.S. Br. 45) presumably enable the agency to
provide the required explanation, but they do not substi-
tute for the explanation, any more than an expert wit-
ness’s credentials substitute for the substantive
requirements applicable to the expert’s testimony under
Fed. R. Evid. 702, see Carnegie Mellon Univ. v. Marvell
Technology Group, Ltd., 807 F.3d 1283, 1302–03 (Fed.
Cir. 2015). The requirement of explanation presumes the
expertise and experience of the agency and still demands
an adequate explanation in the particular matter. See
Burlington Truck Lines, 371 U.S. at 167–68. Second, an
18 CS WIND VIETNAM CO., LTD. v. US
agency’s statement of what it “normally” does or has done
before (e.g., J.A. 160, 1422) is not, by itself, an explanation
of “why its methodology comports with the statute.” SKF
USA, 263 F.3d at 1383. Whether it does so in a particular
agency decision or in a cited earlier decision, the agency
must ground such a normal or past practice in the statu-
tory standard.
2
In this case, Commerce has not provided the needed
explanation setting forth the interpretations and evi-
dence-based factual findings that establish the required
connection from statute to determination. We remand for
Commerce to provide that A-to-Z explanation. Here we
identify some of the uncertainties that we are left with
upon reading what Commerce has said so far. We do not
intend this recitation to be comprehensive or to suggest
the absence of simple ways of resolving them. The task
on remand is for Commerce to lay out a reasoned ground-
ing, in the statute and evidence, for whatever choice it
ends up making about what portion of “Jobwork Charges
(including Erection and Civil Expenses)” to include in
overhead in calculating the normal value of the wind
towers at issue.
We begin with the legal source of the authority Com-
merce is exercising in imposing duties on the imports
here, based on calculations of normal value, 19 U.S.C.
§ 1677b(c). Commerce does not appear to dispute that the
statute should be interpreted in accordance with a simple
core idea: expenses should be included in calculating
normal value for the merchandise at issue only to the
extent one would expect a fair sales price for that mer-
chandise to be set to recoup such expenses, so that ex-
penses separately recouped by income other than receipts
from selling that merchandise should not be built into the
CS WIND VIETNAM CO., LTD. v. US 19
“normal value” of the merchandise. 4 If Commerce has a
different statutory interpretation, it should articulate and
justify it on remand. The analysis of what expenses
should be included in overhead should then be carefully
justified in terms of the adopted statutory interpretation.
As to the particular expenses at issue here: CS Wind’s
consistently promoted option is simply to subtract the
erection and civil income from the expense line item that
includes erection and civil expenses. As we currently
understand the matter, one possible scenario supporting
that position would be the following: Ganges does essen-
tially no tower setup through its own employees but hires
subcontractors for all such work (erection and civil activi-
ties), pays the subcontractors (incurring erection and civil
expenses), and then charges its tower customers for such
setup (receiving erection and civil income). If that were
an accurate description of how Ganges conducts its busi-
ness, the case for CS Wind’s subtraction approach, with a
possible small adjustment, would seemingly be strong.
Ganges would be getting paid for all of its tower-setup
expenses separately from what it receives in selling the
towers at issue, so one would not expect that a fair sales
price of the towers would be set to recoup those expenses.
4 The apparent underlying idea is recited in a close-
ly related context by the 1994 Statement of Administra-
tive Action (which Congress deemed “authoritative,” 19
U.S.C. § 3512(d)): “a fair sales price would recover [sell-
ing, general, and administrative] expenses and would
include an element of profit,” and “as a general
rule . . . Commerce will base amounts for [selling, general,
and administrative] expenses and profit only on amounts
incurred and realized in connection with sales in the
ordinary course of trade of the particular merchandise in
question.” H.R. REP. NO. 103-316, at 839 (1994), reprinted
in 1994 U.S.C.C.A.N. 4040, 4175.
20 CS WIND VIETNAM CO., LTD. v. US
And the tower-setup income amount would correspond to
the expense amount being recouped separately from the
tower-sale price (with a possible adjustment to account
for, say, a contractor’s markup by Ganges).
Aspects of the Ganges financial statements are rele-
vant to the likelihood of that scenario or some variant. As
to separate billing, Ganges states that “Erection of Steel
Structures is recognised on completion of individual
erection activity & Civil contracts are recognised on
Percentage of completion method.” J.A. 740. As to sub-
contracting, the wording of “Jobwork Charges (including
Erection and Civil Expenses)” carries a strong implication
on its face: if jobwork charges are payments to outsiders,
as appears undisputed, the “includ[ed]” erection and civil
expenses would seem to be payments to outsiders as well,
as appellee Wind Tower Trade Coalition argued to Com-
merce. J.A. 1539 (“ ‘Jobwork [Charges] (including Erec-
tion and Civil Expense)’ reasonably only includes
payments to third party contractors for their labor.”).
That does not necessarily mean that all of the tower-setup
income is for subcontracted-out activity, but the rupee
amounts are consistent with that scenario: the roughly
140,000,000 rupees of erection and civil income could
represent a pass-through (plus markup) of a substantial
share of the roughly 212,000,000 rupees of jobwork ex-
penses Ganges incurred (say, roughly 127,000,000 plus a
10% markup). In addition, as Commerce has noted, J.A.
207; U.S. Br. 46, Ganges says in its financial statement
that it “is primarily engaged in Manufacturing & Trading
activities and geographically operating in Domes[ti]c as
well as export market,” J.A. 741—which is at least con-
sistent with the idea that Ganges subcontracts out all
tower-setup work and does not perform any itself.
The methodology Commerce ultimately settled on
seems to reject any scenario in which more than a small
fraction of the Ganges tower-setup income represents
CS WIND VIETNAM CO., LTD. v. US 21
outsourced tower-setup work (Commerce reduced the
212,380,751 rupee expense item by 18,307,221 rupees,
about 13% of the tower-setup income of 142,787,913
rupees). If Commerce thinks practically all subcontrac-
tor-cost-pass-through scenarios for tower setup are un-
likely to match reality for Ganges, we are uncertain as to
precisely why. If Commerce thinks that it simply cannot
tell how much tower-setup work Ganges does in-house
rather than through subcontractors, it would seem rele-
vant to weigh uncertainties about the role Ganges plays
in tower setup against any uncertainties seemingly built
into the more complicated methodology Commerce adopt-
ed.
Under that methodology, Commerce undertook to in-
clude as overhead all but some tower-setup-related per-
centage of the 212,380,751 rupees listed for “Jobwork
Charges (including Erection and Civil Expenses).” To
determine what percentage to exclude from the
212,380,751 rupee expense figure, Commerce turned its
attention to the income side of the Ganges financial
statements. It determined “all of the income items re-
flected in Ganges’ financial statements that can reasona-
bly be associated with jobwork” and “the percentage that
erection/civil income represents” of that amount, i.e., it
calculated a ratio of erection/civil income to “the total
income that can be reasonably associated with jobwork.”
J.A. 161. As to what income items belong in the denomi-
nator of that income ratio, Commerce finally settled on
three items in addition to erection and civil income them-
selves (90,856,566 rupees and 51,931,347 rupees): sales of
jobwork (2,085,029 rupees), sales of finished goods
(1,440,021,110 rupees), and (what we understand to be
sales of) scrap (62,484,632 rupees). J.A. 206–08, 733, 736.
The dominant figure in that income ratio plainly is the
sale of finished goods.
22 CS WIND VIETNAM CO., LTD. v. US
Commerce then adjusted the income ratio in a way
that made essentially no difference in the resulting ratio.
It stated that, except for the (tiny) sales-of-jobwork item,
the income from all the just-mentioned items not only
could be “associated with jobwork” but also “relates to raw
materials and direct labor.” J.A. 209. On that basis,
Commerce reduced each included income item (except
sales of jobwork) in a way that sought to exclude “the
amount of revenues associated with raw materials and
labor.” J.A. 215. To do that, Commerce turned back to
the expense side of the Ganges financial statements and
calculated the ratio of “the sum of raw materials and
direct labor expenses” to “the sum of Ganges’ raw materi-
als, direct labor, energy, and manufacturing overhead
expenses.” J.A. 215. That ratio was 82.03%. Commerce
then used the residue of that number—namely, 17.97%—
and multiplied each item in the income ratio except for
sales of jobwork, both numerator and denominator, by
17.97%. See J.A. 215. Because the sales-of-jobwork figure
is so small, and every other figure in the income ratio was
multiplied by the same number, this barely changed the
resulting income ratio—which became 8.62%. Commerce
then multiplied 8.62% by the 212,380,751 rupees listed for
“Jobwork Charges (including Erection and Civil Expens-
es)” and subtracted that amount (18,307,221 rupees) from
212,380,751 rupees. J.A. 215. That calculation produces
a final figure of just over 194,000,000 rupees from that
line item to include as overhead expenses in the calcula-
tion of normal value. 5
5 In describing what figure it was multiplying by
8.62%, Commerce referred to 212,830,862, not to
212,380,751 (the correct figure); but the stated result
(18,307,221) makes clear that Commerce used the correct
figure. J.A. 215. We note, too, that the formulas set out
in the Court of International Trade’s final opinion, J.A.
CS WIND VIETNAM CO., LTD. v. US 23
Commerce’s explanation for its approach is not satis-
factory. Commerce has not clearly explained the logic, in
terms keyed to the statute, of turning to the income side
of the financial statements and using a (particular) ratio
of certain income items as a way of apportioning the
expense item at issue, “Jobwork Charges (including
Erection and Civil Expenses).” Moreover, when saying
what it was doing, Commerce said that it was trying to
discern the amount of the Jobwork Charges tied to, vari-
ously, erection and civil “income,” “activities,” or “expens-
es.” E.g., J.A. 161, 175, 176, 205, 207. The differing
formulations can refer to Ganges-performed tower setup,
Ganges-purchased tower setup, or both, but Commerce
was not clear in making those distinctions. Commerce
was likewise unclear when it referred to identifying
income items that “can be reasonably associated with
jobwork,” J.A. 161, 205, since it did not say whether
“jobwork” referred to Ganges-performed services sold to
others or Ganges-purchased services bought from others.
Because Commerce is not clear in each “erection and civil”
and “jobwork” reference who is doing, selling, and buying
what, it is difficult to follow Commerce’s logic. 6
We are uncertain, too, about the justification for using
a single loose standard asking what “can be reasonably
associated with” jobwork (for Ganges or perhaps by Gan-
225 nn.5–7, describe multiplication by 82.03%; but Com-
merce’s calculation, J.A. 215, implies that Commerce
actually multiplied by 1 – 82.03% = 17.97%.
6 As already noted, we are perplexed by Com-
merce’s inclusion of “sales of jobwork” as an income item if
Commerce was focusing on what income items are tied to
jobwork that Ganges purchased (to make merchandise it
ultimately sold). Ganges-purchased jobwork and Ganges-
sold jobwork seem to involve separate units, one ultimate-
ly sold by Ganges, the other not. See note 2, supra.
24 CS WIND VIETNAM CO., LTD. v. US
ges) in making all-or-nothing decisions about whether to
build certain categories of income into the income ratio.
The two main “sales” items (finished goods and scrap) and
the tower-setup income items might well differ greatly in
how much they realistically involve (someone’s) jobwork.
Our uncertainty extends to the justification for the ex-
pense-based ratio that Commerce calculated to multiply
against all but one item in the income ratio before arriv-
ing at the income ratio (used finally to reduce the Job-
work Charges line item). More explanation is needed not
only of why that particular expense-based ratio serves to
capture some proper portion of the items in the income
ratio, but also of why it is proper to use the same expense-
based ratio for all such items.
We have been illustrative, not exhaustive, in identify-
ing our concerns. On remand, Commerce’s task is not to
provide isolated responses to our concerns. It is to provide
a coherent, full explanation of a final overhead determi-
nation, laying out and justifying each step so that not only
are our concerns addressed but, more broadly, we may see
how the ultimate result is grounded in a justified statuto-
ry interpretation and the evidence of record.
We note here a particular legal issue that warrants
more attention from Commerce. In this proceeding, faced
with the task of trying to interpret the financial state-
ments of non-party Ganges, Commerce said that it “can-
not go behind” those statements, U.S. Br. 42; J.A. 206,
175—that it “will only seek information from within the
surrogate financial statements,” J.A. 175. We understand
Commerce to mean that it lacks authority even to ask
Ganges for information, even if Ganges is free to decline
to provide the requested information and no matter how
important, simple, or objective the information might be.
On remand, Commerce should set out a legal justification
for that stated constraint on its question-asking authority
or correct our understanding of what Commerce has said
it cannot do. If Commerce concludes that it does have
CS WIND VIETNAM CO., LTD. v. US 25
authority to make inquiries of Ganges, Commerce should
explain why it is reasonable to refrain from making them,
generally or in this particular matter. In so ordering, we
are seeking explanations, not prejudging their legal
soundness. 7
We reiterate that we are not here prescribing the
proper overhead-expense calculation, generally or in this
matter. Nor are we ruling that Commerce’s current result
is incorrect—that it cannot be properly justified. We are
remanding because we conclude that Commerce has not
explained its determination sufficiently to allow us to
conduct the judicial review to which CS Wind is entitled
to ensure that the agency’s exercise of power adheres to
the authorizing law and respects the record evidence.
CONCLUSION
We reverse the Court of International Trade’s affir-
mance of Commerce’s use of packing weights rather than
component weights in its calculation of surrogate values.
We affirm the Court of International Trade’s affirmance of
Commerce’s determination not to use Korean purchase
prices for flanges, welding wire, and wire flux. We vacate
the Court of International Trade’s affirmance of Com-
merce’s overhead determination with respect to jobwork
charges, erection expenses, and civil expenses. We direct
the Court of International Trade to remand the matter
7 We note that the Supreme Court has made clear
that an agency’s “failure to adduce empirical data that
can readily be obtained” can sometimes require setting
aside an agency’s decision under the Administrative
Procedure Act. FCC v. Fox Television Stations, Inc., 556
U.S. 502, 519 (2009) (citing Motor Vehicles Mfrs. Ass’n of
the U.S., Inc. v. State Farm Mutual Auto. Ins. Co., 433
U.S. 29, 46–56 (1983)).
26 CS WIND VIETNAM CO., LTD. v. US
regarding the overhead issue for Commerce to proceed in
accordance with this opinion.
No costs.
REVERSED IN PART, AFFIRMED IN PART, AND
VACATED AND REMANDED IN PART