AD Petitioner Says CIT Illegally Eclipsed Commerce's Authority to Reject Third Country Sales
Antidumping respondents led by Z.A. Sea Foods (ZASF) mischaracterized the record when arguing in favor of the Court of International Trade's rejection of the Commerce Department's finding that ZASF's third country sales to Vietnam were not representative of the company's sales in the third country market, petitioner Ad Hoc Shrimp Trade Action Committee said in a reply brief. The petitioner told the U.S. Court of Appeals for the Federal Circuit that the trade court illegally reweighed the evidence on ZASF's Vietnamese sales, usurping Commerce's authority in the AD review on frozen warmwater shrimp from India (Z.A. Sea Foods Private Ltd. v. U.S., Fed. Cir. # 23-1469).
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In the review, the agency said the sales to Vietnam mostly went to three companies that made up the Minh Phu Group -- a company that uses these shipments as inputs for their shrimp exports to the U.S. As a result, Commerce said these sales were not representative of ZASF's sales in the third country and unusable to determine normal value given that the shrimp sold to the Minh Phu Group may not have been consumed in Vietnam. CIT rejected that position, leading Commerce to eventually rely on the Vietnamese sales (see 2212070036).
The coalition took to the Federal Circuit, where ZASF responded to claims arguing that the trade correct correctly said Commerce failed to support its finding that ZASF's Vietnamese sales were not representative, and that the trade court legally declined to consider petitioners' arguments regarding the interpretation of the term "for consumption." The petitioner responded on June 26, arguing against ZASF's argument that none of Commerce's factual findings were backed by evidence.
The coalition said this claim "mischaracterizes the record," since the substantial evidence standard only requires a reasonable mind to probably have accepted the conclusion. The trade court illegally applied this standard in remanding the original decision, the petitioner claimed. "In this case, the trade pattern evidence of ZA Sea Foods’ customers, and in particular evidence that shrimp sold to customers in Vietnam had historically been commingled with Vietnamese-origin shrimp and then exported from Vietnam, was reasonably interpreted by Commerce as supporting a conclusion that ZA Sea Foods’ sales to Vietnam were not representative of sales in that third country market," the brief said.
ZASF further attempted to "re-characterize the primary issue of the appeal" by centering on when a third country market is viable. But this was not at issue, the petitioner said, adding that "the primary issue in this case is whether the CIT erred in concluding that Commerce failed to support its determination that ZA Sea Foods’ third country sales were not representative with substantial evidence."