Federal Circuit Authorizes Commerce to Consider Evidence Regarding Circumvention

News & Insights
May 28, 2013

In a nonprecedential per curiam order issued Friday, the Court of Appeals for the Federal Circuit granted the Department of Commerce a voluntary remand to consider evidence of potential fraud discovered subsequent to the completion of the 2008-09 administrative review of the antidumping duty order on shrimp from China. The Court rejected arguments from an exporter that claimed “Commerce must meet a demanding standard of proof.” In response, the Federal Circuit clarified that such voluntary remands are “usually appropriate” as long as Commerce’s concern is “substantial and legitimate.” The Court further noted that Commerce possesses “the inherent authority to protect the integrity of its yearly administrative review decisions.”

The Federal Circuit found that the government properly “provided a sufficiently particularized basis for the requested remand. It has identified a concrete set of allegations and evidence involving the period covered by the ruling under review, while taking care not to explore the merits of the issues prematurely.” Based on the facts presented by the government, the Court ruled that the basis for remand was “sufficiently specific and non-speculative to pass any applicable threshold for allowing Commerce to look into the matter before this court proceeds with a review of an order that might be modified.” Commerce now can consider evidence that suggests transshipment through Cambodia to evade antidumping duties and resulted in an exporter acknowledging its failure to disclose a Cambodian affiliate. This evidence was made public in 2012 and brought to Commerce’s attention by the Ad Hoc Shrimp Trade Action Committee (AHSTAC). Through Picard Kentz & Rowe, AHSTAC filed suit in 2010 challenging Commerce’s use of certain data in the 2008-09 administrative review. The Court of International Trade (CIT) ordered remand in 2011, finding that Commerce improperly ignored AHSTAC’s evidence – including documented instances of transshipment to evade antidumping duties.

AHSTAC appealed to the Federal Circuit in 2012 after the CIT found that Commerce had adequately responded to the evidence on the record at the time.  While this appeal was pending, the evidence suggesting transshipment and proving affiliation misrepresentation was placed on the record of the 2010-11 administrative review. With the Federal Circuit’s per curium order, the case will go back to the CIT and eventually back to Commerce to reconsider the 2008-09 administrative review determination in light of the new evidence.