CIT Rules Claimed Exports to Mexico Were U.S. Sales, in Vietnam Fish AD Case

In the August 2007 - January 2008 new shipper review of certain frozen fish fillets from Vietnam, producer/exporter Hiep Thanh claimed it had no knowledge that certain sales it made to a Mexican purchaser would remain in the U.S. as consumption entries. Hiep Thanh therefore challenged the International Trade Administration's inclusion of the sales in the company's U.S. sales list and margin calculation. In two remands, the Court of International Trade faulted the ITA for “too many internal inconsistencies and unexplained conclusions,” ordering it to clarify its analysis and provide a definition for its use of the term "exportation."

In response, the ITA stated that in the context of the case at issue, "exportation to the United States" means "any sale to an unaffiliated party in which merchandise is to be delivered to a U.S. destination, regardless of whether any underlying paper work may indicate possible subsequent export to a third country."

In its new remand results the ITA also opted not to rely on its usual “knowledge test“ (determining if the exporter knew the ultimate destination) but instead argued, "[w]e believe that if a sale is made for delivery of merchandise to the United States ... there is a significant potential for it to enter the U.S. market for consumption...[and] the sales in question did, in fact, enter the United States for consumption."

The revised analysis satisfied the court, which upheld the inclusion of the disputed sales as U.S. sales, noting that Hiep Thanh “shipped merchandise covered by an antidumping duty order to a U.S. port without any arrangements for further transportation to Mexico, and without any qualification or limitation against U.S. entry“.

(See ITT’s Online Archives 11070852 for summary of preceding CIT remand instruction of June 23, 2011.)

Slip Op. 12-19, dated 02/15/12, before Judge Gordon