Friday, March 13, 2009

Fresh Arguments no help to Green Fresh

In an anti-dumping battle with the US Commerce Department application of country wide rates for mushrooms from Green Fresh, a Chinese exporter, the arguments raised in the motion for summary judgment were excluded because they were different than the arguments raised during the administrative hearing.

The commerce decided to apply the country wide anti dumping duty rate for mushrooms exported from Green Fresh of 198.63% additional duty. The reason was based on the failure of Green Fresh to obtain and supply tax records from their customers in the US. Because they were either unable to, or refused to, or forgot to, or failed to file for an extension of time to file, the Commerce Department was able to make an 'adverse inference' from the omission. If they do not get the information they request they assume what they do not get is bad.

During the administrative hearing Green Fresh challenges the use of the adverse inference because they provided sufficient information that the Commerce Department could construct an accurate price. The Commerce Department rejected that argument and Green Fresh did not challenge that reject in court.

Instead they raised two new argument 1) that application of the country wide rate was unsupported by the facts and 2) that the application of the higher duty rate was impermissibly punitive.

Judge Stanceu ruled that these two arguments were not made during the administrative process and therefore they failed to exhaust administrative remedies.

Moral of the story: 1) Move hell or high water to comply with Commerce Department requests for information and file extensions for time if you can not come a document even you think it has little relevance. 2) Complain about everything conceivable during the administrative proceedings. 3) Re raise those same arguments if you need to go to court for relief.


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