Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 1 of 10
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`UNITED STATES COURT OF INTERNATIONAL TRADE
`__________________________________________
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`Z.A. SEA FOODS PRIVATE LIMITED,
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`B-ONE BUSINESS HOUSE PVT. LTD.,
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`HARI MARINE PRIVATE LIMITED,
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`MAGNUM EXPORT,
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`MEGAA MODA PVT. LTD.,
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`MILSHA AGRO EXPORTS PRIVATE LTD.,
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`SEA FOODS PRIVATE LIMITED,
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`SHIMPO EXPORTS PRIVATE LIMITED,
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`FIVE STAR MARINE EXPORTS PVT. LTD.,
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`HN INDIGOS PRIVATE LIMITED,
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`RSA MARINES, AND ZEAL AQUA LTD.,
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` Plaintiffs,
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`v.
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`UNITED STATES,
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` Defendant.
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`__________________________________________)
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`Court No. 21-00031
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`COMPLAINT
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`Pursuant to Rule 3(a)(2) of the Rules of the United States Court of International Trade,
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`Plaintiffs, Z.A. Sea Foods Private Limited, B-One Business House Pvt. Ltd., Hari Marine Private
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`Limited, Magnum Export, Megaa Moda Pvt. Ltd., Milsha Agro Exports Private Limited, Sea
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`Foods Private Limited, Shimpo Exports Private Limited, Five Star Marine Exports Private
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`Limited, HN Indigos Private Limited, RSA Marines, and Zeal Aqua Limited (“Plaintiffs”), by
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`and through their counsel, allege and state, as follows:
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`JURISDICTION
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`Plaintiffs bring this action pursuant to, and in accordance with, sections
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`1.
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`516A(a)(2)(A)(i)(I) and 516A(a)(2)(B)(iii) of the Tariff Act of 1930, as amended (codified at 19
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`U.S.C. §§ 1516a(a)(2)(A)(i)(I) and (a)(2)(B)(iii)), contesting certain aspects of the final results of
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`Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 2 of 10
`Court No. 21-00031
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`Complaint
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`the 2018-2019 administrative review of the antidumping duty order on Certain Frozen
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`Warmwater Shrimp From India (Case No. A-533-840), issued by the U.S. Department of
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`Commerce (“Commerce”), International Trade Administration, as they apply to Plaintiffs. See
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`Certain Frozen Warmwater Shrimp From India: Final Results of Antidumping Duty
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`Administrative Review and Final Determination of No Shipments; 2018–2019, 85 Fed. Reg.
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`85,581 (Dec. 29, 2020) (“Final Results”), and accompanying Issues and Decision Memorandum
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`Dec. 21, 2020).
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`2.
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`This Court has jurisdiction over this matter pursuant to 28 U.S.C. § 1581(c) and
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`19 U.S.C. § 1516a(a)(2).
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`STANDING
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`Plaintiffs are foreign producers and exporters in India of subject merchandise,
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`3.
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`certain frozen warmwater shrimp from India, and therefore are interested parties within the
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`meaning of 19 U.S.C. § 1677(9)(A). Plaintiffs participated in the proceedings that constituted
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`the administrative review that is the subject of this action, and accordingly have standing to
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`commence this action pursuant to 19 U.S.C. § 1516a(d) and 28 U.S.C. § 2631(c).
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`TIMELINESS
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`4.
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`The Final Results, which are being challenged herein, were published in the
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`Federal Register on December 29, 2020. See 85 Fed. Reg. 85.581. On January 28, 2020,
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`Plaintiffs timely filed a Summons initiating this action within thirty days of the publication of the
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`Final Results, and Plaintiffs are timely filing the Complaint today within thirty days of the filing
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`of the Summons. The filing of the Summons and Complaint thus are timely in accordance with
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`19 U.S.C. § 1516a(a)(2)(A), 28 U.S.C. § 2636(c), and Rules 3(a)(2) and 6(a) of the Rules of the
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`U.S. Court of International Trade.
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`Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 3 of 10
`Court No. 21-00031
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`Complaint
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`STANDARD OF REVIEW
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`This Court reviews actions concerning determinations issued by Commerce
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`5.
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`brought under 19 U.S.C. § 1516a(a)(2) to determine whether they are “unsupported by
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`substantial evidence on the record, or otherwise not in accordance with law.” 19 U.S.C. §
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`1516a(b)(1)(B)(i).
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`PROCEDURAL HISTORY
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`6.
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`In February 2005, Commerce published in the Federal Register an antidumping
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`duty (“AD”) order on shrimp from India. See Notice of Amended Final Determination of Sales
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`at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from
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`India, 70 Fed. Reg. 5147 (February 1, 2005). Subsequently, on February 8, 2019, Commerce
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`published in the Federal Register a notice of opportunity to request an administrative review of
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`the AD order on shrimp from India for the period February 1, 2018 through January 31, 2019.
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`See Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation;
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`Opportunity to Request Administrative Review, 84 Fed. Reg. 2816 (February 8, 2019).
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`7.
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` Pursuant to section 751(a)(1) of the Tariff Act of 1930, as amended (the Act),
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`and 19 CFR 351.213(b)(1), in February 2019, Commerce received requests to conduct an
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`administrative review of the AD order on shrimp from India from two domestic interested
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`parties, the Ad Hoc Shrimp Trade Action Committee (“the petitioner”) and the American Shrimp
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`Processors Association (“ASPA”), for numerous Indian producers/exporters, including Plaintiffs.
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`On May 2, 2019, in accordance with 19 CFR 351.221(c)(1)(i), Commerce published a notice of
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`initiation of administrative review for 254 companies, including for Plaintiffs. See Initiation of
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`Antidumping and Countervailing Duty Administrative Reviews, 84 Fed. Reg. 18777 (May 2,
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`2019). Commerce’s period of review was February 1, 2018, through January 31, 2019.
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`Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 4 of 10
`Court No. 21-00031
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`Complaint
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`8.
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`In June 2019, after considering the large number of potential producers/exporters
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`involved in the administrative review, Commerce determined that it was not practicable to
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`examine all exporters/producers of subject merchandise for which a review was requested. As a
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`result, pursuant to section 777A(c)(2)(B) of the Act, Commerce determined that it could
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`reasonably individually examine only the two largest producers/exporters accounting for the
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`largest volume of shrimp from India by volume during the POR. Accordingly, Commerce issued
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`the AD questionnaire to these companies, “Devi” (comprised of Devi Fisheries Limited, Satya
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`Seafoods Private Limited, Usha Seafoods, and Devi Aquatech Private Ltd.) and “Falcon”
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`(comprised of Falcon Marine Exports Limited and K.R. Enterprises).
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`9.
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`In July 2019, all requests for administrative review of Devi and Falcon and 69
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`other companies were withdrawn, and Commerce rescinded the review for those companies. See
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`Certain Frozen Warmwater Shrimp from India: Rescission of Antidumping Duty Administrative
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`Review; 2018-2019, In Part, 84 Fed. Reg. 62506 (November 15, 2019). In August 2019,
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`Commerce selected two new respondents to examine: Plaintiff Z.A. Sea Foods Private Limited
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`(“ZA Sea Foods”) and Razban Seafoods Ltd. (“Razban”). Subsequently, Razban reported that it
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`had no shipments of subject merchandise to the United States during the period examined, and
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`Commerce suspended the questionnaire deadlines for Razban, leaving Plaintiff ZA Sea Foods as
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`the sole mandatory respondent.
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`10.
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`In September 2019, ZA Sea Foods submitted its response to section A of the
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`questionnaire indicating that it did not have a viable home market and that Vietnam was its
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`largest third country market. Commerce issued a supplemental questionnaire to ZA Sea Foods
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`related to its third country market sales, and ZA Sea Foods submitted its response on October 2,
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`2019, confirming Vietnam as ZA Sea Foods’ largest third country market, and also identifying
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`Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 5 of 10
`Court No. 21-00031
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`Complaint
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`its Vietnam market as most similar to its U.S. market in terms of product mix. On October 4,
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`2019, ZA Sea Foods submitted its responses to the remaining sections of the AD questionnaire
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`(i.e., sections B, C, and D, the sections covering comparison market sales to Vietnam, U.S. sales,
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`and cost of production, respectively.
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`11.
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`From December 2019 through January 2020, Commerce issued supplemental
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`sales and cost questionnaires to ZA Sea Foods, all of which addressed ZA Sea Foods’s sales to
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`Vietnam. ZA Sea Foods submitted responses to the questionnaires in January 2020.
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`12.
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`On February 27, 2020, Commerce issued its preliminary results of the 2018-2019
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`administrative review. See Certain Frozen Warmwater Shrimp From India: Preliminary Results
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`of Antidumping Duty Administrative Review; 2018-2019, 85 Fed. Reg. 13,131 (Dep’t Commerce
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`Mar. 6, 2020) (“Preliminary Results”) and accompanying unpublished Decision Memorandum
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`for the Preliminary Results (Dep’t Commerce Feb. 27, 2020).
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`13.
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`In accordance with section 773(a)(1)(B)(i) of the Act, Commerce normally uses
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`home market sales as the basis for normal value. In the Preliminary Results, in order to
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`determine whether there was a sufficient volume of sales in the home market to serve as a viable
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`basis for calculating normal, Commerce compared the volume of ZA Sea Foods’ home market
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`sales of the foreign like product to the volume of its U.S. sales of subject merchandise, in
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`accordance with section 773(a)(1)(C) of the Act. Commerce determined that the aggregate
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`volume of ZA Sea Foods’ home market sales was insufficient to permit a proper comparison
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`with U.S. sales of the subject merchandise (i.e., the aggregate volume of home market sales of
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`the foreign like product was not five percent or more of the aggregate volume of U.S. sales). In
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`such case, pursuant to section 773(a)(1)(C)(ii), Commerce normally uses third country sales of
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`the foreign like product as the basis for normal value. But in the Preliminary Results, Commerce
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`Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 6 of 10
`Court No. 21-00031
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`Complaint
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`determined that ZA Sea Foods’ sales to Vietnam were not appropriate for consideration as
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`comparison sales to establish normal value, and instead of comparing ZA Sea Foods’ U.S. sales
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`to third country sales, Commerce therefore compared ZA Sea Foods’ U.S. sales to constructed
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`value in accordance with section 773(a)(4) of the Act and 19 C.F.R. § 351.404. In so doing,
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`Commerce calculated a 3.57% rate for ZA Sea Foods, and also assigned the same review-
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`specific rate to the 182 other Indian producers/exporters subject to the review, including the
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`remaining Plaintiffs. See 85 Fed. Reg. at 13,132-13,134.
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`14.
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`In April 2020, Plaintiff ZA Sea Foods and other Plaintiffs, the petitioner, and
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`ASPA submitted case and rebuttal briefs addressing various issues in the Preliminary Results,
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`including Commerce’s preliminary decision regarding the use of constructed value instead of ZA
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`Sea Foods’ sales to Vietnam for the calculation of normal value for ZA Sea Food.
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`15. On April 24, 2020, Commerce issued a tolling memo in which it tolled all
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`deadlines in antidumping and countervailing duty administrative reviews by fifty days. On July
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`21, 2020, Commerce issued a second tolling memo in which it tolled all deadlines in
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`administrative reviews by another sixty days. Additionally, on October 7, 2020, Commerce
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`extended the final results of review by 60 more days.
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`16.
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`On October 27, 2020, Commerce placed the final decision of U.S. Customs and
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`Border Protection (“CBP”) regarding circumvention of the Indian shrimp order by Vietnamese
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`companies on the record of this investigation. Commerce allowed parties an opportunity to
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`comment on this CBP determination, and on November 3, 2020, Plaintiff ZA Sea Foods, the
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`petitioner, and ASPA submitted comments on the CBP determination.
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`17.
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`On December 20, 2020, Commerce issued its final results of review in which it
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`affirmed its preliminary decision and continued to compare ZA Sea Foods’ dumping margin by
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`Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 7 of 10
`Court No. 21-00031
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`Complaint
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`comparing ZA Sea Foods’ U.S. sales to constructed value. In other respects, Commerce changed
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`the weighted-average margins from those presented in the Preliminary Results, and assigned all
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`Plaintiffs a final review-specific dumping margin of 3.06%. Commerce published its final
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`results in the Federal Register at 85 Fed. Reg. 85,581 (Dec. 29, 2020). The legal bases for
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`Commerce’s Final Results were set forth in an unpublished Issues and Decision Memorandum
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`dated December 21, 2020.
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`ISSUES PRESENTED BY THE ACTION AND
`PLAINTIFFS’ STATEMENT OF CLAIMS
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`In the following respects, and for other reasons apparent from the record of the
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`18.
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`administrative proceeding, Commerce’s Final Results in its 2018-2019 antidumping duty
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`administrative review were unsupported by substantial record evidence and/or were otherwise
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`not in accordance with law.
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`COUNT ONE
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`Paragraphs 1 through 18 are incorporated herein by reference.
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`19.
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`20. Under section 773(a)(1)(B)(i) of the Act, Commerce normally uses home market
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`sales as the basis for normal value. In the review, Commerce determined that the volume of ZA
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`Sea Foods’ home market sales was insufficient to permit a proper comparison with U.S. sales of
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`the subject merchandise. In such case, pursuant to section 773(a)(1)(C)(ii), Commerce normally
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`uses third country sales of the foreign like product as the basis for normal value. But instead of
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`comparing ZA Sea Foods’ U.S. sales to Vietnam, Commerce compared ZA Sea Foods’ U.S.
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`sales to constructed value under 773(a)(4) of the Act and 19 C.F.R. § 351.404. In disregarding
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`ZA Sea Foods’ third country sales to Vietnam, Commerce ignored substantial record information
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`establishing that such sales were reliable, verifiable, and representative, and Commerce’s
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`decision therefore was unsupported by substantial evidence.
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`Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 8 of 10
`Court No. 21-00031
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`Complaint
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`COUNT TWO
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`Paragraphs 1 through 18 are incorporated herein by reference.
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`21.
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`22.
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`Section 773(a)(4) of the Act permits normal value to be based on constructed
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`value notwithstanding the existence of third country sales, but 19 C.F.R. §351.404(c) of
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`Commerce’s regulations allow such departure in only limited circumstances. Commerce’s
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`decision in this review to deviate from the regulatory exceptions and to rely on constructed value
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`as the comparison to ZA Sea Foods’s U.S. sales was inappropriate because the facts of this case
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`and the circumstances did not support such departure. As such, Commerce’s decision to rely on
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`constructed value was unsupported by substantial evidence.
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`COUNT THREE
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`Paragraphs 1 through 18 are incorporated herein by reference.
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`23.
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`24. Commerce’s regulations at 19 C.F.R. §351.404(f) specify that Commerce
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`normally will calculate normal value based on sales to a third country rather than on constructed
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`value if adequate information is available and verifiable. In this case, ZA Sea Foods submitted a
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`complete and reconciled Vietnam export sales database in the format required by Commerce, and
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`that Commerce planned to verify the responses of ZA Sea Foods. Given that adequate
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`information regarding ZA Sea Foods’ Vietnam export sales was both available and verifiable,
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`Commerce’s decision to rely on constructed value as the comparison for ZA Sea Foods’s U.S.
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`sales was unsupported by substantial evidence and contrary to law.
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`COUNT FOUR
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`Paragraphs 1 through 18 are incorporated herein by reference.
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`25.
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`26. Commerce has a well-established practice with respect to determining the
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`appropriate market for sales made. If a seller has no control over the merchandise after sale, or
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`Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 9 of 10
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`Complaint
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`other knowledge sufficient to demonstrate that it knew or should have known at the time of sale
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`that the merchandise sold would be exported to specific foreign destinations with or without any
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`further processing, the market of sale is the market of its customer. In this case, ZA Seafoods
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`had no control over the merchandise after its sales to Vietnam and did not know nor should have
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`known that any shrimp sold to its Vietnamese customers would be sold domestically in Vietnam
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`with or without further processing or exported from Vietnam with or without processing. ZA
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`Sea Foods did not know the disposition of the products at the time of sale nor does not record
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`contain any evidence to the contrary, and Commerce’s attribution to ZA Sea Foods of U.S. sales
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`of which ZA Sea Foods had no knowledge was unsupported by substantial evidence.
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`COUNT FIVE
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`Paragraphs 1 through 18 are incorporated herein by reference.
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`27.
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`28.
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`ZA Sea Foods made bona fide arm’s-length sales to Vietnam that were shipped to
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`Vietnam and for which prices were negotiated in good faith without any knowledge of any
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`further processed ultimate destination of the merchandise. Commerce’s consideration of, and
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`presumption of, the trade patterns of ZA Sea Foods’ Vietnam customers was not relevant to
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`determining whether ZA Sea Foods’ Vietnam selling prices were non-representative, outside the
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`ordinary course of trade, or otherwise unusable for consideration as comparison sales to establish
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`normal value in the review. Commerce’s decision to disregard ZA Sea Foods’ Vietnam sales
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`therefore was unsupported by substantial evidence.
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`COUNT SIX
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`Paragraphs 1 through 18 are incorporated herein by reference.
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`29.
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`30.
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`There was no information on the record that the shrimp sold to Vietnam by ZA
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`Sea Foods was not processed into merchandise outside the scope of the antidumping duty order.
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`Case 1:21-cv-00031-N/A Document 6 Filed 01/28/21 Page 10 of 10
`Court No. 21-00031
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`Complaint
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`There also was no information on the record for Commerce’s claim that ZA Sea Foods’ sales to
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`Vietnam were not otherwise consumed in Vietnam and thus were not Vietnamese sales.
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`Moreover, there was no evidence on the record for Commerce’s claim that ZA Sea Foods’ sales
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`prices to Vietnam were not truly prices for consumption in Vietnam as the shrimp was exported
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`without further manufacturing. Further, there was no evidence on the record for Commerce’s
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`claim that ZA Sea Foods’ sales prices to Vietnam were prices for sales that eventually became
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`U.S. sales. Commerce’s conclusion that ZA Sea Foods’s selling prices to Vietnam were “not
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`representative” therefore was unsupported by substantial evidence.
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`DEMAND FOR JUDGMENT AND PRAYER FOR RELIEF
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`For the reasons stated above, Plaintiffs respectfully request that the Court:
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`31.
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`(a)
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`(b)
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`enter judgment in Plaintiffs’ favor;
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`declare that with respect to the issues raised in this Complaint,
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`Commerce’s determinations and all related findings and conclusions are unsupported by
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`substantial evidence on the record or are otherwise not in accordance with law;
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`(c)
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`remand these matters to Commerce for redetermination consistent with the
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`Court’s opinion, including a recalculation of Plaintiffs’ antidumping duty margins; and
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`(d)
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`provide such other relief as the Court deems just and proper.
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`Respectfully submitted,
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`/s/ Robert G. Gosselink
`Robert G. Gosselink
`Jonathan M. Freed
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`TRADE PACIFIC PLLC
`700 Pennsylvania Avenue, SE, Suite 500
`Washington, DC 20003
`Tel: (202) 223-3760
`Email: rgosselink@tradepacificlaw.com
`Counsel to Plaintiffs
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`Dated: January 28, 2021
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