Affirmative Evidence Needed for Exporter 'Knowledge Test,' US, Exporter Say
The U.S. and Indian frozen shrimp exporter Megaa Moda supported March 7 the Commerce Department’s results on remand of an antidumping duty administrative review (see 2411270055). Finding that Megaa Moda knew certain of its home market sales would be exported required affirmative evidence that the record lacked, they said (Ad Hoc Shrimp Trade Action Committee v. U.S., CIT Consol. # 23-00202).
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Petitioner Ad Hoc Shrimp Trade Action Committee argued in comments on the remand that Megaa Moda “knew or should have known” its home market sales could have been destined for a third country (see 2501240062).
The Court of International Trade had remanded the review with the same concern, saying that Commerce hadn’t adequately supported its determination otherwise with evidence (see 2408210040). As a result, Commerce reopened the record. It continued to find on remand that there was no “affirmative evidence” showing that Megaa Moda should have known its Indian sales could be exported, the U.S. said in its March 7 filing.
It said the ad hoc committee was incorrect as to the “knowledge test” the department applied to Megaa Moda in its determination. The department wasn’t required to analyze whether the exporter’s home market sales were destined to stay in the country -- it was required to analyze whether they were destined for export, the government said.
This is supported by the CIT case INA Walzlager, in which the court held that “the appropriate burden of proof for determining whether to exclude sales from the home market database in calculating [normal value] is whether [the respondent] knew or should have known that the merchandise was not for home consumption,” it said. It also claimed the petitioner hadn’t exhausted the argument, as it hadn’t raised it during administrative briefing.
The ad hoc committee’s “misunderstanding of the knowledge test colors its opposition comments as it attacks Commerce’s reliance on various administrative decisions as irrelevant,” the U.S. said. These decisions help identify, for instance, what “documentary or physical evidence” that would have reasonably tipped Megaa Moda off that its home market sales were being exported might look like.
The department must look for affirmative evidence of exportation, it noted, such as signed certifications, contracts, shipment documentation "or other such documents stating that the merchandise was destined for an export market.”
The U.S. also said the actual record evidence the ad hoc committee cited as showing constructive knowledge of exportation, such as the particular characteristics of Megaa Moda’s home market sales, actually “stand[s] for the opposite position, especially considering record information submitted after Commerce reopened the record on remand.”
The petitioner “essentially assumes that any differences in Megaa Moda’s sales are automatically sufficient to assume a sale was meant for export and places the burden on Commerce to prove otherwise,” it said. “That is the exact type of speculation this Court does not accept. “
In its own brief, Megaa Moda agreed with everything the U.S. argued. It said that the knowledge test sets a high standard, requiring proof of the exporter’s “particular knowledge at the time of sale” that home market sales were destined for a third country.
In this review, the department “very carefully adhered to the same practice that it has developed and used over the course of decades,” it said.