Calcutta Seafoods Pvt. Ltd. et al v. United States

Slip Op. 21-123
UNITED STATES COURT OF INTERNATIONAL TRADE
CALCUTTA 	SEAFOODS 	PVT. 	LTD.,
BAY SEAFOOD PVT. LTD., AND ELQUE
& CO.,
Plaintiffs,
v.
UNITED STATES,
Defendant,
and
AD 	HOC 	SHRIMP 	TRADE 	ACTION
COMMITTEE,
Defendant-Intervenor.
Before: Gary S. Katzmann, Judge
Court No. 19-00201
OPINION
[The court sustains Commerce’s Final Results of Redetermination.]
Dated: September 20, 2021
Neil R. Ellis, Sidley Austin LLP, of Washington, D.C., for Plaintiffs Calcutta Seafoods Pvt. Ltd,
Bay Seafood Pvt. Ltd., and Elque & Co. With him on the brief were Rajib Pal and Alexandra S.
Mauever.
Kara M. Westercamp, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S.
Department of Justice, of Washington, D.C., for Defendant United States. With her on the brief
were Brian M. Boynton, Acting Assistant Attorney General, Jeanne E. Davidson, Director, and
Patricia M. McCarthy, Assistant Director. 	Of Counsel Spencer Neff, Attorney, Office of Chief
Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce. With them on the
post argument submission was Jeffrey Bossert Clark, Acting Assistant Attorney General.
Nathaniel Maandig Rickard and Zachary J. Walker, Picard Kentz & Rowe LLP, of Washington,
D.C., for Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee.
Katzmann, Judge: The court returns to litigation involving the application of a statute that
enables small companies to receive additional assistance in antidumping duty (“AD”) reviews or
investigations. Calcutta Seafoods Pvt. Ltd. v. United States, 45 CIT __, __, 495 F. Supp. 3d 1318
(2021) (“Calcutta I”). Plaintiffs Calcutta Seafoods Pvt. Ltd., Bay Seafood Pvt. Ltd., and Elque &
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Co. (collectively, the “Elque Group” or “Plaintiffs”) brought this action to contest the final results
of the Department of Commerce’s (“Commerce”) administrative review of the AD order on
Certain Frozen Warmwater Shrimp from India for the period of review (“POR”) of February 1,
2017 to January 31, 2018. 	Certain Frozen Warmwater Shrimp from India: Final Results of
Antidumping Duty Administrative Review; 2017–2018, 84 Fed. Reg. 57,847 (Dep’t Commerce
Oct. 29, 2019) (“Final Results”). Plaintiffs challenged Commerce’s Final Results on the basis that
Commerce unlawfully applied adverse facts available (“AFA”) to the Elque Group for failing, in
Commerce’s estimation, to cooperate to the best of its ability in responding to Commerce’s
questionnaires. 	Compl., Nov. 20, 2019, ECF No. 4. 	The court determined that Commerce’s
application of AFA was unlawful and remanded the Final Results for reconsideration. Calcutta I,
495 F. Supp. 3d at 1335–36. The court now sustains Commerce’s Final Results of Redetermination
Pursuant to Court Remand, May 4, 2021, ECF No. 49-1 (“Remand Results”).
BACKGROUND
The court set out the relevant legal and factual background of the proceedings in further
detail in its previous opinion, Calcutta Seafoods Private Ltd. v. United States, 45 CIT __, __, 495
F. Supp. 3d 1318 (2021). Information relevant to the instant opinion is set forth below.
On April 16, 2018, Commerce published a notice of initiation regarding its administrative
review of the AD duty order covering warmwater shrimp from India. Initiation of Antidumping
and Countervailing Duty Administrative Reviews, 83 Fed. Reg. 16,298, 16,300–04 (Dep’t
Commerce Apr. 16, 2018). 	Commerce ultimately selected Calcutta Seafoods Pvt. Ltd. as a
mandatory respondent, 1 and after initial submissions collapsed Calcutta Seafoods Pvt. Ltd., Bay
1 In AD investigations or administrative reviews, Commerce may select mandatory respondents
pursuant to 19 U.S.C. § 1677f-1(c)(2), which provides:
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Seafood Pvt. Ltd., and Elque & Co. into the Elque Group for purposes of the administrative review.
See Mem. from B. Bauer to M. Skinner, re: Selection of New Respondents for Individual Review
(Aug. 7, 2018), P.R. 57; Mem. from B. Bauer to M. Skinner, re: Whether to Collapse Bay Seafood
Pvt. Ltd., Calcutta Seafoods Pvt. Ltd., and Elque & Co. in the 2017–2018 Antidumping Duty
Administrative Review of Certain Frozen Warmwater Shrimp from India (Oct. 19, 2018), P.R.
108. 	In the course of the review, the Elque Group responded to Commerce's Section D
Questionnaire and then replied to two supplemental questionnaires regarding Section D from
Commerce. Section D Questionnaire; Letter from Elque Group to Commerce, re: Elque Group
Resp. to Section D Questionnaire (Nov. 13, 2018), P.R. 117; Letter from Commerce to Elque
Group, re: Administrative Review of the Antidumping Duty Order on Certain Frozen Warmwater
Shrimp from India (Suppl. Section D Questionnaire) (Dec. 17, 2018), P.R. 122; Resp. from Elque
Group to Commerce, re: Submission of Suppl. Questionnaire Resp. Against Your Letter Dated
Dec. 17, 2018 for Elque Group for Administrative Review of the Antidumping Duty on Frozen
Warmwater Shrimp from India (Dec. 24, 2018), P.R. 138; Letter from Commerce to Elque Group,
re: Administrative Review of the Antidumping Duty Order on Certain Frozen Warmwater Shrimp
from India (Second Suppl. Section D Questionnaire) (Mar. 5, 2019), P.R. 142; Resp. from Elque
If it is not practicable to make individual weighted average dumping margin
determinations under paragraph (1) because of the large number of exporters or
producers involved in the investigation or review, the administering authority may
determine the weighted average dumping margins for a reasonable number of
exporters or producers by limiting its examination to—
(A) a sample of exporters, producers, or types of products that is statistically
valid based on the information available to the administering authority at
the time of selection, or
(B) exporters and producers accounting for the largest volume of the subject
merchandise from the exporting country that can be reasonably examined.
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Group to Commerce, re: Submission of Suppl. Questionnaire Resp. Against Your Letter Dated
Mar. 5, 2019 for Elque Group for Administrative Review of the Antidumping Duty on Frozen
Warmwater Shrimp from India (Mar. 20, 2019), P.R. 150. 	Commerce also granted the Elque
Group various extensions throughout the review. See, e.g., Letter from Commerce to the Elque
Group, re: 2017–2018 Administrative Review of Certain Frozen Warmwater Shrimp from India:
Grants Partial Extension for Section D Resp. (Nov. 6, 2018), P.R. 114; Letter from Commerce to
the Elque Group, re: 2017–2018 Administrative Review of Certain Frozen Warmwater Shrimp
from India: Grants Partial Extension for Second Section D Response (Mar. 11, 2019), P.R. 144.
In its preliminary results, Commerce determined that the Elque Group had been a non-
cooperative respondent and that it failed, despite multiple opportunities, to provide the necessary
product-specific conversion costs and complete cost reconciliations for Commerce’s calculation
of a final AD duty margin. 	Mem. from J. Maeder to G. Taverman, re: Decision Mem. for the
Preliminary Results of the 2017–2018 Administrative Review of the Antidumping Duty Order on
Certain 	Frozen 	Warmwater 	Shrimp 	from 	India 	at 	7–15 	(Apr. 	9, 	2019), 	P.R. 	59
(“PDM”). Commerce also preliminarily relied on AFA in its calculation of a 110.90% AD margin.
Certain Frozen Warmwater Shrimp From India: Preliminary Results of Antidumping Duty
Administrative Review; 2017–2018, 84 Fed. Reg. 16,843, 16,844 (Dep't Commerce Apr. 23, 2019)
(“Preliminary Results”). 	Ultimately, Commerce maintained its application of AFA and the
resultant 110.90% AD margin in its Final Results and stated that it had adequately considered the
Elque Group’s small business status by providing extensions and supplemental questionnaires in
the course of the review. Mem. From J. Maeder to J. Kessler re: Issues and Decision Mem. for the
Final Results of the 2017–2018 Antidumping Duty Administrative Review of Certain Frozen
Warmwater Shrimp from India 11–19 (Dep’t Commerce Oct. 21, 2019), P.R. 188 (“IDM”).
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This action was initiated on November 20, 2019 by the Elque Group and a complaint was
timely filed. Summons, ECF No. 1; Compl. Plaintiffs alleged in their complaint that Commerce’s
application of a 110.90% weighted-average AD margin to the Elque Group was unsupported by
substantial evidence and not in accordance with law because (1) Commerce applied AFA without
identifying 	deficiencies 	in 	the 	Elque 	Group’s 	questionnaire 	responses 	and 	providing 	an
opportunity to remedy those deficiencies; (2) the Elque Group cooperated to the best of its ability
throughout the administrative review; (3) the 110.90% AFA rate was unduly punitive and not
representative of the facts and circumstances of the review; and (4) Commerce failed to take into
account the Elque Group’s small company status in the course of the review. Compl. at 5–8. In
light of these allegations, Plaintiffs requested that the court remand the Final Results to Commerce
with instructions to “take into account the difficulties experienced by the Elque Group as a small
company” and to recalculate the applicable AD margin. Id. at 9.
On November 22, 2019, the Ad Hoc Shrimp Trade Action Committee (“AHSTAC”) joined
the litigation as Defendant-Intervenor. Order Granting Consent Mot. to Intervene, ECF No. 13.
On February 26, 2020, the Elque Group filed a Rule 56.2 Motion for Judgment on the Agency
Record, ECF No. 20. The United States (“Government”) and AHSTAC each submitted a response
to the Elque Group’s motion on May 1, 2020. Def.-Inter.’s Resp. to Pls.’ Mot. for J. on the Agency
R., ECF No. 23; Def.’s Resp. to Pls.’ Mot. for J. on the Agency R., ECF No. 25. Oral argument
on the motion was held on November 16, 2020. Oral Argument, ECF No. 42. The court issued
its ruling on February 3, 2021, concluding that Commerce failed to satisfy its statutory duty to
provide further assistance to the Elque Group as a small company under 19 U.S.C. § 1677m(c)(2)
and thus Commerce’s application of AFA was unlawful. Calcutta I, 495 F. Supp. 3d at 1333–36.
The court remanded Commerce’s Final Results for further action consistent with the court’s
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opinion. 	Id. at 1336. 	On remand, and under respectful protest, Commerce recalculated the
weighted-average AD margin for the Elque Group using neutral facts available by analyzing
existing sales data to reapportion the product-specific input costs and recalculating the general and
administrative expenses. Remand Results at 5. Commerce ultimately assigned a revised AD rate
of 27.66%. Remand Results at 8. On June 3, 2021, AHSTAC submitted comments requesting the
court sustain the Remand Results, Def.-Inter.’s Cmts. on Remand Redeterm., ECF No. 51, and on
June 17, 2021 the Government submitted reply comments further requesting the Remand Results
be sustained, Def.’s Resp. to Cmts. on Remand Redeterm., ECF No. 52. 	Plaintiffs filed no
additional comments before the court.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction over this action pursuant to 28 U.S.C. § 1581(c). The standard
of review in this action is set forth in 19 U.S.C. § 1516a(b)(1)(B)(i): “[t]he court shall hold
unlawful any determination, finding or conclusion found . . . to be unsupported by substantial
evidence on the record, or otherwise not in accordance with law.” 	The court also reviews the
determinations pursuant to remand “for compliance with the court’s remand order.” See Beijing
Tianhai Indus. Co. v. United States, 39 CIT __, __, 106 F. Supp. 3d 1342, 1346 (2015) (citations
omitted).
DISCUSSION
In Calcutta I, the court held that the Elque Group adequately notified Commerce of its need
for assistance, and that Commerce’s failure to provide sufficient assistance rendered its application
of AFA unlawful. 	The court noted that “the Elque Group made multiple attempts to notify
Commerce of its difficulties throughout the review,” including by directly informing Commerce
that it was a small company respondent without previous experience with investigations and
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reviews, and providing abundant, albeit inadequate, responses to Commerce’s questionnaires.
Calcutta I, 495 F. Supp. 3d at 1329–30. Given these attempts to communicate its difficulties to
Commerce and to cooperate with the review, the court concluded that “it is clear that Commerce
had sufficient notice that the Elque Group was having trouble providing the requested information
and . . . needed additional help.” Id. at 1330. Because Commerce failed to “take into account any
difficulties” experienced by the Elque Group during the review, as required by 19 U.S.C. §
1677m(c)(2), the court further concluded that Commerce did not provide adequate assistance to
the Elque Group as a small company respondent. Id. (citing 19 U.S.C. § 1677m(c)(2)). Finally,
because the application of AFA requires a determination, “[a]t a minimum, that a respondent could
comply, or would have had the capability of complying if it knowingly did not place itself in a
condition where it could not comply,” the court concluded that the facts did not support application
of AFA in this instance. Nippon Steel Corp. v. United States, 24 CIT 1158, 1171, 118 F. Supp. 2d
1366, 1378–79 (2000); Calcutta I, 495 F. Supp. 3d at 1334. 	The court remanded to Commerce
with instructions to reconsider its decision to apply AFA, whether by reopening the record to
provide further assistance to the Elque Group or by applying neutral facts available, and revising
its Final Determination accordingly. Calcutta I, 495 F. Supp. 3d at 1335–36.
On remand, Commerce applied neutral facts available. Commerce stated that “while we
continue to find that we cannot rely on the Elque Group’s submitted costs,” the record nevertheless
“provide[s] some basis to calculate a dumping margin for the Elque Group as facts otherwise
available.” Remand Results at 4–5. Accordingly, Commerce reallocated the Elque Group’s input
costs using previously submitted sales data and recalculated its general and administrative expense
ratio “using the information contained in the reported trial balance for the fiscal year ending March
31, 2018.” Id. at 5; see generally, Mem. From S. Medillo to N. Halper re Cost of Production and
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Constructed Value Calculation Adjustments for the Court Remand (Dep’t Commerce Apr. 21,
2021), R.P.R. 6 (“Cost Memo”). Commerce then recalculated the weighted average AD margin
for the Elque Group to 27.66% and for non-examined companies to 6.13%. Remand Results at 8.
The court concludes that Commerce’s Remand Results comply with the court’s order
requesting redetermination and are both supported by substantial evidence and in accordance with
law. As requested by the court, Commerce recalculated the Elque Group’s AD duty rate without
applying AFA. 	Calcutta I, 495 F. Supp. 3d at 1335–36. 	The recalculated AD rate reflects the
evidence in the record and is sufficiently explained by Commerce. 	See generally, Cost Memo.
The revised rate also adequately accounts for the Elque Group’s small company status under 19
U.S.C. § 1677m(c)(2) and does not penalize the Elque Group for failing to provide information it
did not possess. See Calcutta I, 495 F. Supp. 3d at 1335 (citing Tung Fong Indus. Co., 28 CIT
459, 476–77, 318 F. Supp. 3d 1321, 1335–36 (2004)). 	The Remand Results thus comply with
Commerce’s legal obligations, as ordered by the court in Calcutta I, and are supported by
substantial evidence in the record.
CONCLUSION
For the foregoing reasons, Commerce’s Remand Results are sustained. 	Judgment will
enter accordingly in favor of the Defendant.
SO ORDERED.
/s/ Gary S. Katzmann
Gary S. Katzmann, Judge
Dated: September 20, 2021
New York, New York
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