Tri Union Frozen Products, Inc. v. United States, 061317 USCIT, 14-00249

Docket Nº:14-00249
Opinion Judge:Claire R. Kelly, Judge.
Party Name:TRI UNION FROZEN PRODUCTS, INC. ET AL., Plaintiffs and Consolidated Plaintiffs, v. UNITED STATES, Defendant, and AD HOC SHRIMP TRADE ACTION COMMITTEE, Defendant-Intervenor. Slip Op. 17-71
Attorney:Robert George Gosselink, Jarrod Mark Goldfeder, and Jonathan Michael Freed, Trade Pacific, PLLC, of Washington, DC, for Plaintiffs Tri Union Frozen Products, Inc., Mazzetta Company LLC, and Ore-Cal Corporation, and for Consolidated Plaintiff Quoc Viet Seaproducts Processing Trading and Import-Exp...
Judge Panel:Before: Claire R. Kelly, Judge.
Case Date:June 13, 2017
Court:Court of International Trade
 
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TRI UNION FROZEN PRODUCTS, INC. ET AL., Plaintiffs and Consolidated Plaintiffs,

v.

UNITED STATES, Defendant,

and

AD HOC SHRIMP TRADE ACTION COMMITTEE, Defendant-Intervenor.

No. 14-00249

Slip Op. 17-71

Court of Appeals of International Trade

June 13, 2017

Remanding U.S. Department of Commerce's remand determination in the eighth administrative review of the antidumping duty order covering certain frozen warmwater shrimp from the Socialist Republic of Vietnam.

Robert George Gosselink, Jarrod Mark Goldfeder, and Jonathan Michael Freed, Trade Pacific, PLLC, of Washington, DC, for Plaintiffs Tri Union Frozen Products, Inc., Mazzetta Company LLC, and Ore-Cal Corporation, and for Consolidated Plaintiff Quoc Viet Seaproducts Processing Trading and Import-Export Co., Ltd.

William Henry Barringer, Matthew Paul McCullough, and Matthew Robert Nicely, Curtis, Mallet-Prevost, Colt & Mosle LLP, of Washington, DC, for Consolidated Plaintiffs Vietnam Association of Seafood Exporters and Producers and certain of its individual member companies.

Nathaniel Jude Maandig Rickard and Roop Kiran Bhatti, Picard, Kentz & Rowe, LLP, of Washington, DC, for Consolidated Plaintiff and Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.

Kara Marie Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, for Defendant. With her on the brief were Chad A. Readler, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of Counsel on the brief was James H. Ahrens II, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce.

Before: Claire R. Kelly, Judge.

OPINION AND ORDER

Claire R. Kelly, Judge.

Before the court for review is the U.S. Department of Commerce's ("Commerce" or "the Department") remand determination filed pursuant to the court's order in Tri Union Frozen Products, Inc. v. United States, 40 CIT__, 163 F.Supp.3d 1255 (2016) ("Tri Union I"). See Final Results of Redetermination Pursuant to Court Remand, Sept. 1, 2016, ECF No. 118-1 ("Remand Results").

In Tri Union I, the court granted Defendant's request to remand "for Commerce to reconsider [Ad Hoc Shrimp Trade Action Committee]'s arguments concerning Commerce's reliance on Bangladeshi labor wage rate data" from the Bangladesh Bureau of Statistics ("BBS data"), a government source, to value the labor factor of production in this review. Tri Union I, 40 CIT at__, 163 F.Supp.3d at 1312-13. On remand, Commerce continued to use BBS data to value the labor factor of production ("FOP") in this review, providing further explanation of its decision to do so in light of Ad Hoc Shrimp Trade Action Committee's ("Ad Hoc Shrimp") arguments that the Bangladeshi wage rate data is aberrational and unreliable due to systemic labor abuses in the Bangladeshi shrimp industry. Remand Results 5-42. For the reasons that follow, the court remands again to Commerce for further consideration of Ad Hoc Shrimp's argument that record evidence of alleged labor abuses in the Bangladeshi shrimp industry renders the BBS data aberrational, unreliable, and not reflective of actual labor conditions in a market economy at comparable economic development to the Socialist Republic of Vietnam.

BACKGROUND

On March 29, 2013, Commerce initiated the eighth administrative review of the antidumping duty ("ADD") order covering certain frozen warmwater shrimp from the Socialist Republic of Vietnam ("Vietnam") for the period of February 1, 2012 through January 31, 2013. See Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed. Reg. 19, 197 (Dep't Commerce Mar. 29, 2013); see also Frozen Warmwater Shrimp from the Socialist Republic of Vietnam, 70 Fed. Reg. 5, 152 (Dep't Commerce Feb. 1, 2005) (notice of amended final determination of sales at less than fair value and ADD order).

Prior to publication of the preliminary results, petitioner Ad Hoc Shrimp submitted comments regarding the primary surrogate country selection. Comments on Surrogate Country Selection, PD 133-137, bar codes 3152484-01-04 (Aug. 30, 2013) ("Ad Hoc Shrimp Surrogate Country Comments").[1] In this submission, Ad Hoc Shrimp argued that Commerce should not select Bangladesh as a primary surrogate country because, "as a consequence of the pervasive labor abuses in Bangladesh[, ] the two countries are not economically comparable." Id. at 2. Ad Hoc Shrimp placed evidence on the record documenting alleged "aberrational labor conditions - comprised of severe abuse of labor and disregard for workers' rights - permeating the entire supply chain of the Bangladesh shrimp industry."

Id.

On March 24, 2014, Commerce published its preliminary results. See Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 79 Fed. Reg. 15, 941 (Dep't Commerce Mar. 24, 2014) (preliminary results of ADD administrative review; 2012-2013) and accompanying Decision Memorandum for Preliminary Results of Antidumping Duty Administrative Review: Certain Frozen Warmwater Shrimp from the Socialist Republic of Vietnam; 2012-2013, A-552-802, PD 191, bar code 3188821-01 (Mar. 19, 2014) ("Prelim. Decision Memo"). Despite Ad Hoc Shrimp's comments on the surrogate country selection, Commerce selected Bangladesh as the primary surrogate country for the purpose of valuing the mandatory respondents' FOPs for this review. Prelim. Decision Memo at 15. Regarding the labor FOP, Commerce explained its practice of valuing the labor input using industry-specific labor wage rate data from the primary surrogate country, and accordingly used the BBS data to value the labor input here. Id. at 23; see Surrogate Values for the Preliminary Results at 5-6, PD 192-198, bar codes 3188847-01-07 (Mar. 18, 2014) ("Prelim. Surrogate Value Memo"). Commerce explained that, although it considers the International Labor Organization Yearbook of Labor Statistics Chapter 6A: Labor Cost in Manufacturing ("ILO Chapter 6A data") to be the best source of data for industry-specific labor rates, because the ILO does not include labor data for Bangladesh, the agency would use the BBS data. Prelim. Surrogate Value Memo at 5-6; see Prelim. Decision Memo at 23.2

Following publication of the preliminary results, Ad Hoc Shrimp placed on the record additional documentation of alleged labor abuses in the shrimp industry in Bangladesh and ILO data for five countries (Guyana, India, Indonesia, Nicaragua, and Philippines)3 that Ad Hoc Shrimp contended are economically comparable to Vietnam. Post-Prelim Evidentiary Submission Regarding Surrogate Country and Value Selection at Attach. 8, PD 221-222, bar code 3198211-01 (Apr. 28, 2014) ("Ad Hoc Shrimp Post-Prelim. Comments"). Ad Hoc Shrimp subsequently submitted a case brief to Commerce continuing to challenge the use of the BBS data, again arguing that the BBS data is aberrational and unreliable and highlighting the usable ILO data already on the record for economically comparable countries. Case Br. on Behalf of the Ad Hoc Shrimp Trade Action Committee 8-25, PD 234, bar code 3204785-01 (May 28, 2014) ("Ad Hoc Shrimp Agency Case Br."). Ad Hoc Shrimp argued to Commerce that, notwithstanding the primary surrogate country selection, the BBS data should not be used to value the labor FOP.4

Id. at 2, 24.

On September 19, 2014, Commerce issued its final determination in the eighth administrative review of the ADD order covering certain frozen warmwater shrimp from Vietnam for the period of February 1, 2012 through January 31, 2013. See Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 79 Fed. Reg. 57, 047 (Dep't Commerce Sept. 24, 2014) (final results of ADD administrative review, 2012-2013), as amended, 79 Fed. Reg. 65, 377 (Dep't Commerce Nov. 4, 2014) (amended final results of ADD administrative review, 2012-2013), and accompanying Issues and Decision Memorandum for the Final Results, A-552-802, (Sept. 19, 2014), ECF No. 27-4 ("Final Decision Memo"). In the final determination, Commerce continued to find that the BBS data was the best available information on the record to value labor in this review, stating that its finding is in keeping with its practice to use "industry-specific labor rates from the primary surrogate country." Final Decision Memo at 47. Commerce again explained that it was unable to use data from its preferred source, ILO Chapter 6A data, as the ILO does not contain data from Bangladesh; therefore, Commerce used data published by the BBS to value the labor FOP. Id.

Plaintiffs Tri Union Frozen Products, Inc., Mazzetta Company LLC, Ore-Cal Corporation, Consolidated Plaintiff Quoc Viet Seaproducts Processing Trading and Import-Export Co., Consolidated Plaintiffs Vietnam...

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