Ad Hoc Shrimp Trade Action Committee v. United States
802 F.3d 1339
| Fed. Cir. | 2015Background
- Hilltop International (exporter) and Ocean Duke Corp. (U.S. affiliate) were mandatory respondents in the 4th and 5th administrative reviews of the antidumping order on frozen warmwater shrimp from China. Commerce initially granted Hilltop a separate rate and calculated de minimis margins in the preliminary and final results for those reviews.
- Subsequent evidence developed in the 6th review (including plea materials and Cambodian corporate registrations) showed Hilltop’s general manager, To Kam Keung, was a 35% shareholder and board member of a Cambodian company, Ocean King, and that Ocean Duke imported large quantities of shrimp declared as product of Cambodia despite negligible Cambodian production data.
- Hilltop repeatedly failed to disclose the Ocean King affiliation in its questionnaire responses, initially denied the affiliation when confronted, and only later admitted an affiliation that lasted until September 28, 2010. Commerce found these omissions and misrepresentations rendered Hilltop’s submissions unreliable.
- Commerce applied adverse facts available (AFA) and assigned Hilltop the China‑wide AFA rate of 112.81% in the 6th review, and on remand incorporated the Sixth Review evidence into the 4th and 5th reviews, denying Hilltop separate‑rate status and assigning the 112.81% China‑wide rate for those periods.
- The Court of International Trade (CIT) sustained Commerce’s determinations on both separate‑rate denial and corroboration of the China‑wide AFA rate; Hilltop appealed to the Federal Circuit. The Federal Circuit affirms, holding Commerce’s actions were supported by substantial evidence and lawful.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce permissibly applied AFA/denied separate‑rate status to Hilltop | Hilltop: omission of Ocean King was immaterial to margin calc; no missing "core" data, so AFA and total AFA inappropriate | Gov & Commerce: Hilltop repeatedly withheld/misrepresented affiliate info, impeded proceedings, failed to act to best ability; misrepresentations tainted all submissions | Held: AFA and total AFA proper — omissions undermined credibility and core separate‑rate showing; substantial evidence supports denial |
| Whether transshipment/circumvention evidence was improper to consider in administrative reviews | Hilltop: circumvention is separate proceeding; transshipment evidence irrelevant to these reviews | Commerce: transshipment evidence impeached Hilltop’s credibility and justified inquiry; credibility failure affects separate‑rate analysis | Held: Commerce relied on evidence to assess credibility, not to make a definitive transshipment finding; permissible in review context |
| Whether Hilltop’s Hong Kong location automatically entitles it to a separate rate | Hilltop: Hong Kong exporter 100% foreign‑owned = automatic separate rate | Commerce: location/ownership not dispositive when undisclosed affiliates in NME raise control concerns | Held: No automatic exemption; undisclosed affiliate facts defeated presumptive separate rate |
| Whether Commerce corroborated the 112.81% China‑wide AFA rate adequately | Hilltop: rate is outdated/cherry‑picked; more recent cooperative margins show commercial reality far lower | Commerce/Gov: corroboration may use prior investigation data; Commerce updated analysis with Section 129 recalculations (Red Garden CONNUM data) showing probative value | Held: Corroboration adequate — Commerce showed the petition rate remained relevant/probative using updated Red Garden CONNUM data; substantial evidence supports selection |
Key Cases Cited
- Ad Hoc Shrimp Trade Action Comm. v. United States, 992 F. Supp. 2d 1285 (Ct. Int'l Trade 2014) (CIT decision sustaining Commerce’s 4th‑review determinations)
- Ad Hoc Shrimp Trade Action Comm. v. United States, 925 F. Supp. 2d 1315 (Ct. Int'l Trade 2013) (CIT decision sustaining Commerce’s 5th‑review determinations)
- KYD, Inc. v. United States, 607 F.3d 760 (Fed. Cir. 2010) (standard for corroborating secondary/AFA information)
- Nippon Steel Corp. v. United States, 337 F.3d 1373 (Fed. Cir. 2003) (definition of "best of its ability" for cooperation)
- F.lli De Cecco di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027 (Fed. Cir. 2000) (use of secondary sources for AFA and need for corroboration)
- Gallant Ocean (Thai.) Co. v. United States, 602 F.3d 1319 (Fed. Cir. 2010) (Commerce discretion in selecting AFA sources)
- Landgraf v. USI Film Prods., 511 U.S. 244 (1994) (retroactivity presumption and temporal reach analysis)
- Fernandez‑Vargas v. Gonzales, 548 U.S. 30 (2006) (statutory retroactivity rules and application)