2017 Ct. Intl. Trade LEXIS 72
Ct. Intl. Trade2017Background
- Commerce conducted the 8th administrative review (Feb 1, 2012–Jan 31, 2013) of the antidumping order on frozen warmwater shrimp from Vietnam and selected Bangladesh as the primary surrogate country to value factors of production (FOPs).
- For labor specifically, Commerce used Bangladesh Bureau of Statistics (BBS) industry-specific wage data because ILO Chapter 6A data (Commerce’s preferred source) did not include Bangladesh.
- Ad Hoc Shrimp submitted record evidence alleging systemic labor abuses in the Bangladeshi shrimp industry (forced labor, child labor, unpaid/underpaid workers) and argued the BBS data is aberrational and unreliable; it also placed ILO wage data for other potentially comparable countries on the record.
- The Court in Tri Union I remanded for Commerce to reconsider Ad Hoc Shrimp’s arguments about the BBS data. On remand Commerce again chose BBS data, declining to find it aberrational because Ad Hoc Shrimp did not provide a quantitative benchmark or show how abuses distorted the dataset.
- The court found Commerce’s remand results inadequate: Commerce failed to meaningfully address how the record evidence of systemic labor abuses undermines the reliability/representativeness of BBS data and did not articulate a workable standard for demonstrating aberration in labor data.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce permissibly used BBS wage data to value labor FOPs | BBS data is aberrational/unreliable due to documented systemic labor abuses in Bangladeshi shrimp industry and thus not the best available information | BBS is the best available: industry-specific, from primary surrogate country, closer in time; plaintiff failed to provide measurable benchmark to show aberration | Court: Remand again — Commerce must further consider/address record evidence and either justify BBS data or choose/justify alternatives |
| What standard/proof shows labor-data aberration | A showing of systematic abuses that render wage data untrustworthy (e.g., unpaid/underpaid labor) should be sufficient or at least require Commerce analysis | Parties bear burden to populate record; Commerce reasonably seeks quantitative, benchmark comparisons or historical country data to identify outliers | Court: Commerce must articulate a reasonable method by which a petitioner can demonstrate aberration/unreliability (not limited to the quantitative approaches Commerce used) |
| Whether socio-political/working-condition evidence is relevant to aberration inquiry | Such evidence is relevant because it can undermine reliability of reported wages and their representativeness for a hypothetical comparable market economy | Commerce says §1677b(c)(1)(B) focuses on market-economy values and socio-political factors are beyond its mandate/expertise; it prefers quantitative analyses | Court: Working-condition evidence cannot be dismissed without analysis; Commerce must address how such evidence affects reliability/representativeness of surrogate data |
| Whether Commerce’s practice favoring primary surrogate country data is dispositive | Preference for single primary surrogate country does not trump excluding aberrational or unreliable data | Commerce relies on preference to justify using BBS despite concerns | Court: Preference is not dispositive; Commerce must explain why it can rely on primary-surrogate BBS data given record evidence or select alternative data/method |
Key Cases Cited
- Universal Camera Corp. v. NLRB, 340 U.S. 474 (discusses substantial evidence review and considering what detracts from the record)
- Nation Ford Chem. Co. v. United States, 166 F.3d 1373 (surrogate values construct a hypothetical market value)
- Qingdao Sea–Line Trading Co. v. United States, 766 F.3d 1378 (criteria for best surrogate data: quality, specificity, contemporaneity)
- Dorbest Ltd. v. United States, 604 F.3d 1363 (invalidated regression-based wage methodology)
- Zhejiang DunAn Hetian Metal Co. v. United States, 652 F.3d 1333 (standard for assessing Commerce’s selection as best available information)
- QVD Food Co. v. United States, 658 F.3d 1318 (parties bear burden to place adequate record information)