Federal Court of Appeals Authorizes Commerce to Consider Evidence Regarding Circumvention

On Friday, the United States Court of Appeals for the Federal Circuit issued a non-precedential per curiam opinion granting the government’s request to reopen the 4th annual review of the antidumping duty order covering shrimp from China imported between 2008 and 2009.  The Court of Appeals’ decision follows a federal district court’s similar decision in January to allow the government to reopen the 5th annual review covering shrimp imported from China between 2009 and 2010.

The Court of Appeals’ decision opens the way to the U.S. Department of Commerce reopening the record in the 4th annual review to consider evidence that the Ad Hoc Shrimp Trade Action Committee (AHSTAC) brought to the agency’s attention in the 6th annual review covering shrimp from China imported between 2010 and 2011.  This evidence was made public in 2012 as part of a criminal prosecution related to mislabeled imported catfish.  The evidence suggested involvement of a Chinese company in transshipping shrimp through Cambodia to evade antidumping duties.  In the course of the 6th annual review, Commerce found that an exporter had made material misrepresentations regarding its relationship with a purportedly unrelated shrimp exporter in Cambodia.  As a result, subject imports from the exporter between February 2010 and January 2011 were assigned a final antidumping duty rate of 112.81%.

Friday’s court decision authorizes Commerce to take additional remedial action to address any fraud that might have also occurred in the 4th annual review.  Based on the same evidence, the government also reopened a 2007 proceeding regarding the exporter’s corporate status and re-opened the 5th annual review.

The Court of Appeals’ opinion rejected arguments that Commerce is required to “meet a demanding standard of proof” before being allowed to revisit a completed annual review.  Based on the facts presented, the Court stated that the government’s request was “sufficiently specific and non-speculative to pass any applicable threshold for allowing Commerce to look into the matter . . .”

The Southern Shrimp Alliance applauds the decision of the Court of Appeals for the Federal Circuit allowing Commerce to conduct further investigations of prior proceedings.  The Southern Shrimp Alliance further commends Commerce for its willingness to fully investigate whether prior proceedings were tainted by fraud.   Whatever the outcome of the additional investigations, Commerce continues to demonstrate a commitment to addressing fraud in trade proceedings.

 

Read the United States Court of Appeals for the Federal Circuit’s Per Curiam Opinion in Ad Hoc Shrimp Trade Action Committee v. United States, Court No. 2012-1416 (May 2013) here:      http://www.cafc.uscourts.gov/images/stories/opinions-orders/12-1416.Order.5-24-2013.1.PDF

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