Ad Hoc Shrimp Trade Action Committee v. United States
2017 CIT 27
| Ct. Intl. Trade | 2017Background
- Commerce conducted the 9th administrative antidumping review for frozen warmwater shrimp from Vietnam (POR: Feb 1, 2013–Jan 31, 2014) and selected Bangladesh as the primary surrogate country to value factors of production (FOPs).
- Commerce’s practice is to value labor using ILO Chapter 6A industry-specific wage data; because Bangladesh lacks ILO data, Commerce used Bangladesh Bureau of Statistics (BBS) shrimp‑industry wage data.
- Ad Hoc Shrimp argued the BBS shrimp wage data is aberrational and unreliable because it reflects widespread labor abuses in the Bangladeshi shrimp industry (including forced and child labor, severe underpayment, long hours, and gender pay disparities).
- Ad Hoc submitted alternative industry wage data (ILO) from other countries (Guyana, India, Nicaragua, Philippines) and numerous reports documenting abuses in Bangladesh; Commerce declined to adopt alternatives and kept the BBS data.
- The court reviews Commerce’s determination for substantial evidence and reasoned explanation and found Commerce failed to (1) adequately apply or explain its quantitative aberration analysis and (2) confront record evidence that Bangladeshi wage data may be distorted by systemic labor abuses.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce’s use of Bangladeshi shrimp‑industry wage data to value labor FOP is supported by substantial evidence | BBS wage data is aberrational and unreliable because industrywide forced/child labor and exploitative practices depress wages; Commerce should not use it | BBS is the best available record data: industry‑specific, public, contemporaneous; plaintiff failed to provide the quantitative comparison Commerce requires | Remanded: Commerce failed to quantitatively assess aberration claims or meaningfully address record evidence of labor abuses; must clarify/reconsider its aberration practice and explain or reassess use of BBS data |
| Whether Commerce must perform cross‑country quantitative comparisons to assess aberration of labor data | Cross‑country comparisons are appropriate to show BBS is unusually low because of abuses | Commerce contends labor is unique and cross‑country wage comparisons may be unreliable; prior practice and precedent limit exclusion based only on being the lowest value | Remanded: Commerce must clarify its practice for demonstrating aberration in cases alleging systemic labor abuse and whether cross‑country comparisons are acceptable |
| Whether record evidence of labor abuses requires Commerce to exclude/discount surrogate data | The existence of documented systemic abuses that logically affect wage levels undermines BBS data as a market‑reflective surrogate | Commerce says it does not make socio‑political determinations and focuses on data qualities (specificity, contemporaneity, public availability) | Remanded: Commerce must confront the abuse evidence, explain why it does/does not render BBS data aberrational, or justify why BBS remains best available |
| Whether plaintiff failed to present sufficient quantitative proof of distortion | Commerce and U.S. argue petitioner did not convert/normalize other countries’ data for comparison and thus failed to show distortion quantitatively | Petitioner provided alternative country wage data and detailed documentary evidence tying low wages to abuses; Commerce could have converted values | Remanded: Court rejects that plaintiff’s submissions were insufficient as a matter of law and directs Commerce to address the comparative evidence or explain its evidentiary standard |
Key Cases Cited
- Qingdao Sea–Line Trading Co. v. United States, 766 F.3d 1378 (Fed. Cir.) (Commerce practice on surrogate selection and data quality factors)
- Rhone Poulenc, Inc. v. United States, 899 F.2d 1185 (Fed. Cir.) (agency must seek best available information)
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (1951) (substantial evidence review must account for record evidence that detracts from agency findings)
- Shakeproof Assembly Components v. United States, 268 F.3d 1376 (Fed. Cir.) (methodology must use best available information to set accurate antidumping margins)
- Nation Ford Chemical Co. v. United States, 166 F.3d 1373 (Fed. Cir.) (Commerce need not incorporate distortions of a surrogate industry into constructed value)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (agency must cogently explain its exercise of discretion)