Bergeron's Seafood v. U.S. Intern.
| Decision Date | 05 February 2004 |
| Docket Number | No. Slip Op. 04-12. Court No. 03-00448.,Slip Op. 04-12. Court No. 03-00448. |
| Citation | 306 F.Supp.2d 1353 |
| Parties | BERGERON'S SEAFOOD, Plaintiff, v. UNITED STATES INTERNATIONAL TRADE COMMISSION and United States Bureau of Customs and Border Protection, Defendants. |
| Court | U.S. Court of International Trade |
Peter D. Keisler, Assistant Attorney General; David M. Cohen, Director; Jeanne E. Davidson, Deputy Director; Paul D. Kovac, Trial Attorney, United States Department of Justice, Civil Division, Commercial Litigation Branch; Ellen C. Daly, Senior Attorney, Office of Chief Counsel, for Defendant United States Bureau of Customs and Border Protection.
Lyn M. Schlitt, General Counsel; James M. Lyons, Deputy General Counsel; Michael Diehl, Office of the General Counsel, for Defendant United States International Trade Commission; William Brown, for Plaintiff.
This case is before the court on Plaintiff's Motion for Evidentiary Hearing and/or Inclusion of Affidavits in Agency Record ("Plaintiff's Motion"). Plaintiff challenges the United States International Trade Commission's ("ITC") decision not to include Plaintiff on the list of "affected domestic producers" eligible to receive distributions of antidumping duties collected on crawfish tail meat imported from the People's Republic of China pursuant to the Continued Dumping and Subsidy Act of 2000, 19 U.S.C. § 1675c (1999)("CDSOA" or "Byrd Amendment"). Plaintiff now moves for either an evidentiary hearing to present evidence that it mailed a questionnaire response to the ITC in satisfaction of the CDSOA, or, alternatively, the inclusion of two affidavits in the agency record. Defendants1 argue that the case must be decided solely upon the agency record and that Plaintiff has failed to present any legal basis for supplementing the agency record. The Court has jurisdiction pursuant to 28 U.S.C. § 1581(i) (1994).2 For the foregoing reasons, Plaintiff's Motion is denied.
The CDSOA modified the Tariff Act of 1930 and provided that duties collected under antidumping or countervailing duty orders be held in accounts for distribution to "affected domestic producers" to offset "qualifying expenditures." Pub.L. No. 106-387, 114 Stat. 1549, 1549A72-1549A73. The ITC administers the Byrd Amendment jointly with the Bureau of Customs and Border Protection ("Customs"). See 19 U.S.C. § 1675c.
The Byrd Amendment is intended to strengthen the remedial purpose of the antidumping and countervailing duty laws. CDSOA, Pub.L. No. 106-387, 114 Stat. 1549, 1549A72-1549A73; Candle Corp. of America, Blyth Inc. v. USITC, 27 CIT ___, 259 F.Supp.2d 1349, 1351 (2003). Under the CDSOA, only "affected domestic producers" are eligible for offsets. 19 U.S.C. § 1675c(a). In order to qualify as an affected domestic producer, a person must demonstrate, inter alia, that it "was a petitioner or interested party in support of the petition with respect to which an antidumping duty order ... has been entered...." 19 U.S.C. § 1675c(b)(1)(A).
The ITC's prepares a list of "petitioners" and "persons that indicate support of the petition...." 19 U.S.C. § 1675c(d)(1). To be included on the ITC's list, the interested party must indicate support for the petition "by letter or through questionnaire response" that appears on the Commission's administrative record. 19 U.S.C. § 1675c(d)(1); Candle Corp., 259 F.Supp.2d at 1351.
On September 15, 1997, the ITC entered an antidumping duty order on crawfish tail meat from China. Notice of Amendment to Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Freshwater Crawfish Tail Meat From the People's Republic of China, 62 Fed.Reg. 48,218, 48,219 (Sept. 15, 1997). On December 29, 2000,3 the ITC provided Customs with a "list of petitioners and other entities that indicated public support of the petition during each ... antidumping and countervailing duty investigation." Letter from Stephen Koplan, Chairman, ITC, to The Honorable Raymond Kelly, Commissioner of Customs, United States Customs Service (Dec. 29, 2000). The list of petitioners in support of the petition on crawfish tail meat from China did not include the Plaintiff, Bergeron's Seafood. Id. On July 3, 2002, Customs issued a notice of intent to distribute offset for fiscal year 2002 for distribution of antidumping duties collected in fiscal year 2002, including antidumping duties collected on crawfish tail meat from China. Distribution of Continued Dumping and Subsidy Offset to Affected Domestic Producers, 67 Fed Reg. 44,722 (July 3, 2002).
On August 16, 2002, Jeffery S. Bergeron submitted a letter to the ITC requesting that it revise the list to include the Plaintiff. The basis of this request was a claim that "[Plaintiff] expressed support for the petition in the Commission's original investigation...." Letter from Jeffery S. Bergeron, Owner of Bergeron's Seafood, Inc., to the Honorable Marilyn Abbott, Secretary of the ITC (Aug. 16, 2002). The letter said that "[Plaintiff] did not retain a copy of its questionnaire response in the original investigation and in discussion with Mr. Lynn Featherstone, a copy resides with his office." Id.
On August 27, 2002, the Commission denied the request. It explained that Letter from Deanna Tanner Okun Chairman of the ITC, to Jeffery S. Bergeron, Owner, Bergeron's Seafood, Inc. (Aug. 27, 2002).
On September 13, 2002, Mr. Bergeron again requested that his company be added to the list. This second letter was substantially the same as the August 16, 2002 letter with the exception of the inclusion of a copy of what Mr. Bergeron purported to be Plaintiff's questionnaire response. The letter states: "[p]lease find attached with this request a copy of our Processors' Questionnaire Crawfish Tail Meat from China, which we file in a timely manner by May 5th 1997." Letter to the Honorable Marilyn Abbott, Secretary of the ITC, from Jeffery S. Bergeron, Owner, Bergeron's Seafood, Inc. (Sept. 13, 2002).
On October 2, 2002, the Commission rejected Bergeron's second request, stating that: Letter to Jeffery S. Bergeron, Owner, Bergeron's Seafood, Inc., from Deanna Tanner Okun, Chairman of the ITC (Oct. 2, 2002).
On January 27, 2003, Plaintiff's counsel sent a request for reconsideration to the ITC. This request included affidavits by Jeffery Bergeron and an independent tax accountant, Mary Gail Petro. Mr. Bergeron indicated that, with the assistance of Ms. Petro, he completed the questionnaire indicating support for the petition, signed it, and gave it to Ms. Petro to be mailed on April 17, 1997. Ms. Petro indicated that she helped Mr. Bergeron complete the questionnaire, that it indicated support for the petition, and that she mailed it sometime around April 17, 1997. Letter to the Honorable Marilyn Abbott, Secretary of the ITC, from William E. Brown, attorney for Bergeron's Seafood, Inc. (Jan. 27, 2003).
On May 1, 2003, the ITC denied Plaintiff's request of January 29, 2003, stating:
After examining the partial questionnaire you attached to your request, and the affidavits that it was mailed in a timely manner, we completed another review of the official record of the original investigation of crawfish tail meat from China. We can find no copy of a questionnaire response from [Plaintiff] in our record nor any indication that [Plaintiff] filed a questionnaire response with the Commission."
Letter to William E. Brown, attorney for Bergeron's Seafood, Inc., from Deanna Tanner Okun, Chairman of the ITC (May 1, 2003). The ITC's letter goes on to explain that because the underlying investigation was a record proceeding, the ITC must rely solely on the record established in the investigation. Id.
This court has discretion to grant an evidentiary hearing as provided for in Rule 43 of the CIT rules which states that "When a motion is based on facts not appearing in the record, the court may hear the matter on affidavits presented by the respective parties, but the court may direct that the matter be heard wholly or partly on oral testimony or deposition." USCIT R. 43(c); see also Ammex, Inc. v. United States, 23 CIT 549, 555, 62 F.Supp.2d 1148, 1156 (1998), discussed infra at ___.
Plaintiff moves for an evidentiary hearing to present evidence that it mailed a questionnaire response in support of the petition for an antidumping duty order on crawfish tail meat imported from China in satisfaction of Section (d)(1) of the CDSOA, or, alternatively, for the inclusion of two affidavits submitted to the ITC in the agency record. Plaintiff's Motion at 1. Defendant4 claims that Plaintiff's motion amounts to an attempt to insert non-record evidence into the proceedings and is therefore contrary to law. Defendant ITC's Opposition at 1.
Plaintiff's arguments for an evidentiary hearing are based primarily on equitable grounds. Plaintiff states that "[t]he plaintiff's owners are citizens who feel wronged by the government and seek their day in court — an opportunity to tell their story." Plaintiff's Motion at 2.
Plaintiff claims to have found no authority precluding the granting of its motion. Plaintiff states that it has "not found or been cited a definitive case that prohibits the taking of evidence in an action to determine eligibility under CDSOA." and that "[t]here does not appear to be a statute,...
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