AD Petitioner Defends Commerce's Use of EAPA Case to Reject Third Country Sales in AD Case at CAFC

The Court of International Trade substituted its own judgment for the Commerce Department's when it overruled the agency's rejection of antidumping duty respondent Z.A. Sea Foods' (ZASF's) Vietnamese sales as third country sales in an AD review on frozen warmwater shrimp from India, AD petitioner Ad Hoc Shrimp Trade Action Committee argued in its opening brief at the U.S. Court of Appeals for the Federal Circuit (Z.A. Sea Foods Private Ltd. v. U.S., Fed. Cir. # 23-1469).

Commerce properly held that the sales to Vietnamese shrimp exporters were not representative of ZASF's sales in the third country market and unusable to determine normal value since the shrimp sold to these customers may not have been consumed in Vietnam, the petitioner coalition said.

The agency based its rejection of the Vietnam sales on an Enforce and Protect Act investigation in which CBP found that the Vietnamese shrimp exports evaded the antidumping duties. Commerce, citing CBP, said ZASF evaded the duties via its Vietnamese sales by commingling Indian and Vietnamese shrimp, then shipping the shrimp to the U.S. as being of Vietnamese origin. At the trade court, Commerce eventually relied on the Vietnamese sales to calculate normal value after Judge Gary Katzmann said Commerce failed to support its position that the EAPA case established that ZASF's Vietnam sales made it to the U.S. and were thus unusable (see 2212070036).

The Ad Hoc Shrimp Trade Action Committee appealed the ruling to the Federal Circuit, arguing in its April 10 brief that the rejection of the Vietnamese sales should have been sustained since the Vietnamese customers' status as exporters and the exports' involvement in the AD evasion scheme raised legitimate concerns about the third country sales' basis for normal value. In particular, the petitioner took issue with the trade court's reassessment of the relevance of the EAPA investigation evidence. CIT said that ZASF itself is not listed in the EAPA case, rejecting the weight Commerce afforded this investigation.

"The CIT’s reweighing of the EAPA investigation evidence was inconsistent with the standard of review applied to factual determinations like those made by Commerce in deciding whether the price of ZA Sea Foods’ sales to customers in Vietnam were representative," the brief said.

The committee also argued that claims it made on Commerce's remand results at CIT on the interpretation of the "for consumption" language in the AD statute should have been considered and were not waived.