CAFC Affirms Rejection of Shrimp Exporter's Third-Country Sales to Set Normal Value in AD Review

The U.S. Court of Appeals for the Federal Circuit in a June 7 order affirmed the Court of International Trade's decision to sustain the Commerce Department's use of antidumping duty respondent Z.A. Sea Food's (ZASF's) Vietnamese sales to calculate normal value in an AD review on Indian frozen warmwater shrimp. The unanimous order from Judges Alan Lourie, Raymond Clevenger and Todd Hughes was issued without an accompanying opinion.

Oral argument was held in the case on June 4 and saw petitioner Ad Hoc Shrimp Trade Action Committee argue that, since ZASF's Vietnamese sales were not actually for consumption in Vietnam, Commerce couldn't use them to set normal value (see 2406040051). The petitioner's argument was based in part on an Enforce and Protect Act investigation, which found that one of ZASF's Vietnamese customers, the Minh Phu Group, was transshipping Indian shrimp and sending it to the U.S.

The trade court said the petitioner failed to flesh out this claim in the review since it merely recited the statute and didn't cite prior cases or Commerce practice interpreting the words "for consumption" (see 2212070036). At oral argument, the appellate court judges suggested that this decision was made at the height of CIT's discretion. Judge Hughes said the petitioner had a "mountain to overcome on abuse of discretion" regarding this decision.

The government defended its original decision not to use ZASF's Vietnamese sales for normal value at the trade court, but it didn't appear in the appeal. Hughes at oral argument questioned this development.

(Z.A. Sea Foods Private Ltd. v. United States, Fed. Cir. # 23-1469, dated 06/07/24; Judges: Alan Lourie, Raymond Clevenger and Todd Hughes; Attorneys: MacKensie Sugama of Trade Pacific for plaintiffs-appellees led by Z.A. Sea Foods Private Ltd.; Zachary Walker of Picard Kentz for defendant-appellant Ad Hoc Shrimp Trade Action Committee)