Court of International Trade Upholds Two Commerce Determinations Applying Antidumping Duties to Imported Shrimp

Last week, the Court of International Trade (CIT) issued two decisions upholding determinations by the U.S. Department of Commerce (Commerce) to impose antidumping duties on unfairly-traded shrimp.

In Apex Frozen Foods Private Ltd. v. United States, the CIT rejected a motion, filed by Indian shrimp exporters, seeking to amend a judgment issued by the Court in December 2014 affirming Commerce’s imposition of antidumping duties on Indian shrimp imports entered into the country between February 2011 and January 2012. The Indian exporters claimed that the CIT had made two legal errors in its opinion, including a determination that one of the arguments made by the exporters could not be heard because it was not first raised with Commerce. The Court rejected the exporters’ arguments, but made clear that it understood the gravity of the circumstances:

The court understands the consequences of its decision.  By rejecting Plaintiffs’ arguments on exhaustion grounds, the court has robbed Apex of what might have been a victory.   Apex and its cohorts will have to pay significant sums in antidumping duties as the result of an administrative decision that may have been flawed.  To the casual observer, this seems unfair.”

 

The CIT nevertheless observed that “it would be equally unfair to remand the decision when Commerce had no notice of the argument below” because administrative agency actions are presumed to be correct and “the plaintiff bears the burden to bring flaws to the agency’s attention.” Where a party fails to raise concerns with the agency, the agency is not afforded the opportunity to correct a mistake. The Court further observed that the Indian exporters could appeal to a higher court for further review, noting: “if the Plaintiffs disagree with the court’s conclusions, they may raise their grievances to the Court of Appeals for the Federal Circuit-the usual venue for protesting the trial court’s reasoning.”

In Viet I-Mei Frozen Foods Co. v. United States, the CIT upheld Commerce’s imposition of a 25.76% antidumping duty rate on shrimp imports from Grobest & I-Mei Industrial (Vietnam) Co., Ltd. entered into this country between February 2008 and January 2009. The Vietnamese shrimp exporter had previously sued Commerce at the CIT seeking an individual review and determination of a dumping margin regarding its sales of shrimp during the 2008-2009 period. However, after winning its appeal, the exporter decided that it no longer wanted to participate in an individualized review and declined to respond to Commerce’s requests for additional information. The Vietnamese exporter appealed Commerce’s decision to continue the individualized review and the determination to apply a 25.76% antidumping duty rate.

The Court held that Commerce was not required to stop the individualized review simply because the Vietnamese exporter no longer wished to participate. The CIT found that a refusal to terminate an individualized review was a reasonable measure in order to prevent abuse where Commerce expended resources to initiate an individual examination but the exporter thereafter seeks to withdraw from the proceeding “when it changes its mind about the benefit of such examination” and prefers that its antidumping duty rate be calculated through a different methodology. The CIT further upheld Commerce’s decision to apply a 25.76% antidumping duty to the exporter’s shipments as reasonable under law. As with the Indian exporter plaintiffs in Apex Frozen Foods, the Vietnamese shrimp exporter in Viet I-Mei may also appeal the CIT’s ruling to a higher court for further review.

 

In both cases, the Ad Hoc Shrimp Trade Action Committee participated as a defendant-intervenor in support of the agency determinations.

Read the Court of International Trade’s decision in Apex Frozen Foods Private Ltd. v. United States, Slip Op. 15-81 (July 27, 2015) here: http://www.cit.uscourts.gov/SlipOpinions/Slip_op15/15-81.pdf

Read the Court of International Trade’s decision in Viet I-Mei Frozen Foods Co. v. United States, Slip Op. 15-82 (July 30, 2015) here: http://www.cit.uscourts.gov/SlipOpinions/Slip_op15/15-82.pdf

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