Trade Updates for Week of March 22, 2017

United States Court of International Trade


Sustaining Remand Results

In CS Wind Vietnam Co. v. United States, Court No. 13-102, Slip Op. 17-26 (March 17, 2017) the court sustained Commerce’s remand determination. This matter was before the court following a remand to the U.S. Department of Commerce (“Commerce”) ordered after the Court of Appeals for the Federal Circuit (“Federal Circuit”) issued its mandate in CS Wind Vietnam Co. v. United States, 832 F.3d 1367 (Fed. Cir. 2016) (“CS Wind IV”). Defendant-Intervenor Wind Tower Trade Coalition (“WTTC”) opposes the Third Remand Results on several grounds.

First at issue was whether Commerce incorrectly used manufacturer report weights in the normal value calculation.  However, because the Federal Circuit’s direction to Commerce bound Commerce under the mandate rule to use the manufacturer-reported weights, Commerce reasonably relied on that instruction. 

Second, WTTC argued that Commerce’s failure to request information from Ganges “regarding how [Ganges] classifies its jobwork expenses” is an abuse of discretion. However, the Court held that Commerce did not abuse its discretion in deciding not to send a letter to Ganges, or in maintaining a practice of generally not requesting information from third party surrogate value companies over whom it has no control.

Finally, WTTC argued that information developed in the first administrative review shows that CS Wind made material misstatements regarding the accuracy of the Steel India data used by Commerce in the original investigation, and that the Steel India data used in the original investigation “does not accurately reflect the steel consumed in the production of CS Wind’s wind towers.”  Yet, WTTC fails to explain why there is a “material misstatement”   where there simply could have been an update to the original data.  The mere fact that Commerce uses different data in different proceedings is insufficient for the court to disturb Commerce’s continued use of the original Steel India data in the original investigation.  For all these reasons, the Remand Results in the Third Review were sustained.


Commerce’s Determination in Shrimp Case was Remanded

In Ad Hoc Shrimp Trade Action Committee v. United States, Court No. 15-279, Slip Op. 17-27 (March 16, 2017), plaintiff challenged the Department of Commerce’s (“Commerce”) decision to use labor wage rate data from the Bangladeshi shrimp industry to value the labor factor of production in the final results of the ninth administrative review of the antidumping duty order on certain frozen warmwater shrimp from the Socialist Republic of Vietnam (“Vietnam”). Commerce’s final determination was remanded for Commerce to clarify or reconsider its practice for determining whether a surrogate country’s labor data is aberrational and to clarify or reconsider its use of Bangladeshi labor data in this review, despite record evidence that the data is from an industry affected by alleged labor abuses.

The Court found that Commerce’s selection of Bangladeshi labor wage rate data was not supported by substantial evidence because Commerce failed to (i) quantitatively assess Plaintiff’s claims that the Bangladeshi labor wage rate data was aberrational, and (ii) address record evidence that the Bangladeshi data was the product of abusive labor practices and therefore could not be the best available information to value the merchandise.  While Commerce is obligated to obtain the best information available, evidence that the labor wage rates do not reflect the true cost of labor because of systemic abuses including forced and child labor specific to the shrimp industry detracts from accuracy, and therefore detracts from the reasonableness of finding the data to be the best information available.