US Admission It Didn't Review Entire Record in EAPA Case No Ground for Extra Argument, Plaintiff Argues

Shrimp exporters Minh Phu Seafood Joint Stock Co.'s and MSeafood Corp.'s surprise at the U.S. government's concession at oral argument that it did not review the entire record in an antidumping duty and countervailing duty evasion case does not stand as proper grounds for supplemental briefing, plaintiff Ad Hoc Shrimp Trade Enforcement Committee (AHSTEC) argued. Submitting a May 13 reply brief at the Court of International Trade, the U.S. producers group argued that the supplemental briefing motion represents a bid to revisit the arguments presented in the case and should be rejected as such.

The case concerns an Enforce and Protect Act investigation into frozen warmwater shrimp from India. In its complaint, AHSTEC claimed that CBP should have compelled Minh Phu to provide additional information in the public version of its responses and that CBP should have stuck with its original finding that Minh Phu transshipped Indian shrimp through Vietnam (see 2103240069).

Arguing that AHSTEC may appear to "misunderstand EAPA proceedings," the defendant-intervenors fought back against the plaintiff's attacks on the public summaries. Minh Phu and MSeafood (collectively, MPG) said that the statute does not require EAPA respondents to disclose any information (see 2112140067). At the case's oral argument, though, the U.S. conceded, to MPG's surprise, that CBP's Office of Regulations and Rulings did not review the full administrative record. MPG then filed a motion for supplemental briefing to account for the concession, arguing that this was the first mention of such a concession from the U.S.

In its reply, AHSTEC said that the concession was not a surprise, and that it knew of this failure to review the entire record, pointing to its briefs arguing as much as evidence. "Minh Phu’s 'surprise' does not constitute a legitimate basis for requiring additional briefing in this case," the brief said. "Defendant-Intervenors had the opportunity to present all of the arguments they now seek to place before this Court in their original response brief. Instead, Minh Phu adopted a different litigation strategy. Having made that strategic decision, there is no valid reason to allow Minh Phu a second bite at the apple through modifying the briefing schedule to grant a 139-day extension for Defendant-Intervenors’ response brief so that it might now address arguments they initially chose to ignore."

Elsewhere in the reply, AHSTEC argued that MPG failed to show any justification or good cause to modify the briefing schedule and that AHSTEC does not seek additional briefing. The plaintiff said it already presents its arguments over ORR's failure to look at the whole record and that no additional arguments on this point are needed. "It is therefore unclear as to what arguments AHSTEC would present in another opening supplemental brief that would not be merely duplicative of the arguments previously submitted to the Court," the brief said. "Duplicative and unnecessary briefing would frustrate 'the just, speedy, and inexpensive determination' of this action."