AD HOC SHRIMP TRADE ACTION

COMMITTEE, VERSAGG I SHRIMP CORP ORATION, and INDIAN RID GE SHRIMP COMP ANY ,

Plaintiffs,

v. UNITED STAT ES ,

Def endant, and EASTE RN F ISH COMPA NY, INC. ,

Def endant- I nterve nor. Slip Op. 10-39 UNITED STAT ES COURT OF INTERNATIONAL TRADE

Before: Tim othy C. Stanceu, Judge Consol. Court No. 05-00192

OP INION [Affirming the rede termination by the United States De partment of Commerc e of the scope of less-than-f

air-va lue deter

minations in an antidumping proc eeding ] Dated: Apr il 14, 2010 Picard Kentz & Rowe LLP ( Nathaniel M. Rickard

and Andrew W

. Kentz ) for

plaintiffs Ad Hoc Shrimp Tra de Ac tion Com mittee and Ve rsag g i Shrimp C orporation. Stewart and Stewart

( Gee rt M. De Pre

st , Elizabeth J. Drake , and TerenceP. Stewart) and Leake & Andersson, LLP

( Edward T. Hayes ) for

plaintiff Indian Ridge Shrimp Com pany . Tony W est , Assistant Attorney

Gene ral, JeanneE. Davidson , Direc tor, Patricia M. McCarthy , Assistant Director , Commercial L itigation B ranc h, Civil Division, United St ates Depa rtment of Just ice ( Stephen C. Tosini ); Myk haylo A. Gryzlov , Offic e of the Chief Counsel for I mport Administration, United St ates De partment of Commerc e, of c ounsel, for de fenda nt. Kelley Dry e &W

arren LLP

( Michae l J. Courseyand Mary T. Staley ) for defe ndantintervenor

.Consol. Court No. 05-00192 P age 2

Stanceu, Judge : This matter arose from plaintiffs’ c ontesting six amended fina l “lessthan-fa ir-value ” (“ L TFV ”) de terminations that the International Trade Administration, United States Depa

rtment of Commerce (“Commerc e” or the “De partment” ) issued on imports of ce rtain frozen wa rmwate r shrimp (the “ subject merc handise” ). In Ad Hoc Shrimp Trade Ac tion Committee v. U

nited States , 33 CI T __, __, 637 F. Supp. 2d 1166, 1182 (2009) (“ Ad Hoc I II ”), the cour t ordere d Commerce to r edete rmine the scope of its amended f inal L TFVdeter

minations with respec t to dusted shrimp, a product consisting of flour- coate d frozen shrimp that the Depa rtment had e x cluded. The court he ld that Comm erc e did not state re asoning adequate to support the dusted shrimp exclusion and that, as a re sult, the L TFVdeter minations were c ontrary to law. Id. at __, 637 F. Supp. 2d at 1181. “ Commerce f ailed to consider , and fa iled to resolve, the question of whe ther dusted shrimp is within the proposed scope of the a ntidumping investigation or investigations sought by the Petitions.” Id. I n the re deter

mination issued by

Commerce pur suant to the court’ s remand or der, Commerce c oncluded that it had e rre d in excluding dusted shrimp from the sc ope of the L TFV deter minations and draf

ted amende d scope la

ng uag e to include the pr oduct. Fina l Results of Redeter mination pursuant to Ct. R emand 18, App. 1 ( “Rede termination”). Plaintiffs Ad H oc Shrimp Trade A ction Commi ttee (“ AHSTAC”), V ersa g g i Shrimp C orporation (“Ve rsag g i”), a nd I ndian Ridge Shrimp Com pany (“Indian Ridge ”) ( collectively “plaintiffs” or “pe titioners”) urg e the cour t to affirm the Rede termination. Pls.’ Comm ents Reg arding Final Results of Redeter mination pursuant to Ct. R emand 1 ( “AHSTAC & Ver sag g i Comm ents”); Comments of I ndian Ridge Shrimp Co. R eg ardingthe Remand Results 2 (“Indian Ridge Comments”). Def endant- intervenor

Easter n Fish Company , I nc. (“ Easter n Fish”) urg es the c ourt to rejec t theConsol. Court No. 05-00192 P age 3

Redeter mination as contrar

y to law. Def

.-Interve nor’s Comments Reg ardingFinal Results of Redeter mination pursuant to Ct. R emand 15- 16 (“D ef.- I nterve nor Comments”). The arguments of Easte rn F ish fail to persuade the cour t. Be cause Commerce c omplied with the remand or der in Ad Hoc I II and lawf ully rede termined the sc ope of the investigations, the court will affir m the Redeter mination through the entry of judg ment. I. B A C K G R O U N D The ba ckg round of this ca se is prese nted in the cour t’s opinions in Ad Hoc Shrimp Trade Action Committee v. U

nited States , 31 CI T 102, 103-09, 473 F . Supp. 2d 1336, 1337-42 (2007) (“ Ad Hoc I ”), a nd Ad Hoc I

II , 33 CI T at __, 637 F . Supp. 2d at 1168-74, which the c ourt rec ounts in part below a

nd supplements as nec essar y to include deve lopments occurr ing sinc e Ad Hoc I II was de cided on July

1, 2009. Plaintiffs broug ht multi ple ac tions, later consolidated, to c ontest six amende d final aff irmative L TFVantidumping de terminations that Commerce issued in 2005 on c erta in imported frozen wa

rmwate r shrimp from e ach of the following countries: B razil, Ecuador , I ndia, the People’s Republic of

China, the Socialist Republic of Vietnam, and T hailand. See, e .g., 1 Notice of Am. Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen W armwater Shrimp from Thai land , 70 Fe d. Reg . 5145 (F eb. 1, 2005). Eac h of the fina l and amende d final L TFVdeter minations ex cluded dusted shr imp from the

The a dminist rative r ecor d provided in this case , Consolidated Court No. 05-00192, sets 1 forth the doc uments for the Tha iland investigation. Accor dingly , the cour t cites to the Fe dera l Reg ister notice f

or Thailand. T he cour

t also provides the c itations for para llel determinations made in the c oncurr ent investig ations of B razil, Ecuador , India, the People’ s Republic of China, and the Socialist Republic of Vie tnam.Consol. Court No. 05-00192 P age 4

scope of the investig ation, and Commerce acc ording ly excluded dusted shrimp from the scope of

eac h of the six antidum ping duty order s. Id. at 5147. 2 I n this li tigation, plaintiffs, who were petitioners in the under ly ing a ntidumping proce eding s, sought a s relief a re mand direc ting Commerc e to amend the antidumping duty order s to include dusted shrimp. Ad Hoc I , 31 CI T at 112-14, 473 F . Supp. 2d. at 1345-46. The Court of International Trade dismiss ed the c onsolidated ac tion, concluding that the re quested relief was unavailable be cause the final a ffirmative injury deter mination of the U.S. I nternational Trade Commi ssion (“I TC” or the “ Commi ssion”), which pla intiffs did not contest, had not included dusted shrimp. Id. at 112-14, 116, 473 F . Supp. 2d. at 1345-46, 1348. The Court of Appea ls for the F eder al Circuit (“Court of A ppeals” ), af

firming in part and r ever sing in pa rt, held that the Court of International Trade , althoug h corr ectly concludingthat the re quested re lief of a

rema nd to amend the a

ntidumping duty

order s was unava ilable bec ause of the abse nce of

a fina l Commi ssion injury

deter mination on dusted shrimp, erre d in dismi ssing the c ase. Ad Hoc Shrimp Trade Action Comm. v. United States , 515 F.3d 1372, 1375 ( Fe d. Cir. 2008) (“ Ad Hoc I I ”). The Court of Appea ls concluded that plaintiffs had soug ht, in addition to amendment Commerce published, on the same da y , five amended f

inal less-than-f

air-va lue 2 deter minations and antidumping duty order s for the f

ive other e x porting countries. See Notice of Am. Final Determ ination of Sal es at Less Than Fair Value &Antidumping Duty Order: Ce rtain Frozen W armwater Shrimp from Brazil , 70 Fe d. Reg . 5143, 5145 (F eb. 1, 2005); Notice of Am. Final Determination of Sales at Less T han Fair Value &Antidumping Duty Order: Ce rtain Frozen W armwater Shrimp from Ecuador , 70 Fe d. Reg . 5156, 5158 (F eb. 1, 2005); Notice of Am. Final Determination of Sales at Less T han Fair Value &Antidumping Duty Order: Ce rtain Frozen W armwater Shrimp from India , 70 Fe d. Reg . 5147, 5148 (F eb. 1, 2005); Notice of Am. Final Determination of Sales at Less T han Fair Value &Antidumping Duty Order: Ce rtain Frozen W armwater Shrimp From the People ’s Republic of China , 70 Fe d. Reg . 5149, 5152 (F eb. 1, 2005); Notice of Am. Final Determination of Sales at Less Than Fair Value &Antidumping Duty Orde r: Certain Frozen W armwater Shrimp From the Socialist Republic of Vietnam , 70 Fe d. Reg . 5152, 5156 (F eb. 1, 2005).Consol. Court No. 05-00192 P age 5

of the a ntidumping duty

order s, a dec laratory

judgme nt that Comm erc e ac ted unlawf ully in excluding dusted shrimp fr om the scope of the antidumping inve stigations. Id. at 1381-82. The Court of Appea ls held that the lack of judicial authority

to order a

revie w of the Commission’s injury deter mination did not preclude a djudication on the merits of plaintiffs’ claim contesting Commerce’ s final amende d L TFVdeter minations. Id. at 1382-83. The Court of Appea ls

vacated the dismissal and rema nded the a ction, direc ting the Court of I nternational Trade to “addr ess the mer its of AHSTAC’s claim that ‘dusted shrimp’ should [not] be excluded fr om the scope of Commerce’ s final deter

mination.” Id. at 1385. I n Ad Hoc I

II , the Court of Interna

tional Trade conclude d “that the De partment’s decisions to exclude dusted shrimp from the scope of the fina l L TFVdeter minations were contra ry to law bec ause the y

wer e unsupported by

any valid rea son.” Ad Hoc I

II , 33 CI T at __, 637 F. Supp. 2d at 1181. The court e x plained that Commerce f

ailed to consider , and fa iled to resolve, the que stion of whether dusted shrimp is withi n the proposed sc ope of the antidumping investig ation or investigations sought by

the Petitions. Alt houg h Commerce ha s discretion to make e x clusions from the scope , even when doingso appea rs to be contr ary

to the proposed sc ope as se t forth in a petition, it must exercise this authority rea sonably

. The thre e re asons set for

th in the Scope Clarification Memorandum in support of the exclusion, for the re asons discussed in this Opinion and Orde r, do not suffice

. Id. The c ourt order ed the De partment to re consider a nd rede termine the sc ope of the final and amende d final L TFV

deter minations with respect to the issue of the inclusion of dusted shrimp. Id. at 1182. After obtaining c omments on a draf t remand r edete rmination, Commerce pr epar ed a f inal version, which it filed on O ctober 29, 2009, and also filed a n acc ompanying a dminist rative

rec ord on Nove mber 19, 2009. AH STAC, Versag g i, and I ndian Ridge filed comments with theConsol. Court No. 05-00192 P age 6

court on Nove mber 30, 2009 urg ing the court to af firm the Rede termination. AHSTAC & Ver sag g i Comm ents 1; I ndian Ridge Comments 2. Eastern F ish filed comments with the court on Dec ember

15, 2009, arguing that the Redeter mination must be set a side as contr ary to law and seekingan additional re mand. Def .-Interve nor Comments 15-16. II. D I S C U S S I O N I n the Redete rmination, Commerce de termined that its ear lier exclusion of dusted shrimp from the sc ope of the L TFVdeter minations was in error . Redeter mination 18. After c onsidering the proposed sc ope languag e in the petitions filed by the domestic industry

to initi ate the L TFV investigations (“Petitions”), which included f ood prepa rations, Commerce deter

mined that “dusted shrimp constitutes a food pr epar ation within the meaningof the scope of the orig inal investigations.” Id. at 16. Commerce conclude d that it “employ ed the c orre ct ana ly tical framework in its draf

t remand r edete rmination in determining that dusted shrimp would be considere d food pre parations (which ar e included in the pla in lang uag e of the scope) , and that dusted shrimp would not fall under the brea ded shrimp exclusion li sted in the scope la nguag e.” Id. at 13. Commerce conclude d that dusted shrimp should be added to the sc ope as se t forth in the L TFVdeter

minations and included “F inal Scope L anguag e on Remand” to be used for this purpose. Id. at 18, App. 1. I n the Redete rmination, Commerce a lso “ana ly zed the impact of findingdusted shrimp to be within the scope on our antidumping duty calc ulations.” Id. at 18. Commerce conclude d that no chang e in the ca lculations for a ny of the six L TFVdeter

minations would be neede d. Id. “Out of all investig ations, only one re spondent, the Allied Pacific Group in the investig ation cover ing the People’s Republic of

China, repor

ted sales of

dusted shrimp during the per iod of theConsol. Court No. 05-00192 P age 7

investigation, and these sale s comprised a very small perce ntag e of its total sales.” Id. Commerce a lso found that it inadvertently had included the dusted shrimp sales of Allied Pac ific Group in the mar g in calcula tion for that re spondent and that, a s a re sult, “it is unnecessar y to

rec alculate any

antidumping duty

marg ins in thi s remand de termination.” Id. The Rede termination addre sses the objec tions that Eastern F ish and L ong J ohn Silver’s, I nc. (“ L J S”) made in comments on the draf t remand r edete rmination and re jects all but one of these objec tions. Id. at 8 n.10, 13-17. Commerc e ac knowledg ed that its “re fer ence s to amending the scope of the [antidumping duty ] orders in its Draft Remand Re deter mination were in error ” and agree d with Eastern F ish and L J S that “the [Court of I nternational Trade ] i nstructed the Depa rtment to addre ss in its rede termination only the issue of whe ther the sc ope of the final and amende d final dete rminations should include dusted shrimp, and not the scope of the orde rs.” Id. at 13. Commerce there fore decide d that dusted shrimp should be added to the sc ope languag e of the L TFVdeter

minations but not to the scope of the antidumping duty

order s. Id. Ba sed on its reviewof the Rede termination and the r ecor d Commerce ha s filed, the cour t conclude s that the Redeter mination complies with the court’s orde r in Ad Hoc I II and sets for

th

rea soning that is adequate to support the Depa rtment’s finding s and conc lusions. The Redeter mination determines that dusted shrimp is included within the plain meaningof the proposed sc ope languag e as se t forth in the orig inal petitions and, specific ally , is describe d by the term “f ood prepa rations” a s used there in. Id. at 7. The Rede termination furthe r dete rmines, logic ally and consistently

with the rec ord evide nce in this ca se, that dusted shrimp does not fa ll within the brea ded shrimp exclusion. Id. at 8 (“ Dusted shrimp is an input into the production ofConsol. Court No. 05-00192 P age 8

brea ded and ba

ttered shr imp, rather tha

n brea ded or battered shr imp its elf. Shrimp coate d with flour is phy sically

differ ent from shrimp coated with brea ding or batter.” ). I n its comments to the court, defe ndant-interve nor Easte rn F ish argues that Commerce , havingdeter

mined that dusted shrimp is within t he scope of the investig ations, “wa s require d on

rema nd to ag ain deter

mine whether

dusted shrimp is within a class or kind of mer chandise separ ate f rom the cla ss that cover s all other subjec t mercha ndise, but failed to do so without providing any

lawful re ason.” D ef.- I nterve nor Comments 15. Eastern F ish seeks a se cond

rema nd order to “direc t the ag ency

to determine whether

dusted shrimp constitutes a separ ate class or kind of me rcha

ndise from the c lass that cover s all other subjec t mercha ndise in these investigations, and if so, to take the a ppropriate administrative ac tions that are r equire d by this result.” Id. at 15-16. It argues that Commerce “for eac h petition . . . must deter mine (1) the number of c lasses or kinds of mer chandise cover ed by that petition’s sugg ested scope lang uag e, and (2) the boundar

y for e ach suc h class.” Id . at 5. Def endant- intervenor

points to a practice by Commerce of

deter mining whe ther the sc ope of imported me rcha ndise set forth in a pe tition encompa sses more than one class or kind of me rcha ndise by apply ing the five c riteria se t forth in Diversified Products Corp. v. United States , 6 CI T 155, 572 F. Supp. 883 (1983) . Def .- I nterve nor Comments 7. Def endant- intervenor

identifies what it consider s to be indications that the scope of the investigations includes more than one class or kind of me rcha ndise. Id. at 9-11. It submit s that during the investig ations petitioners not only argued that all propose d subject merc handise constituted a sing le domestic like produc t despite widely vary ing de g ree s of post-har

vest proce ssing, but also a

rgued that bre aded shr imp, for which pe titioners wanted a n exclusion, wasConsol. Court No. 05-00192 P age 9

not part of that domestic like pr oduct. Id. at 10-11. Ac cordingto Eastern F ish, Comm erc e’s

acc epting petitioners’ position on a bre aded shr imp ex clusion strong ly sug g ests that brea ded shrimp is withi n a sepa

rate class or kind of me rcha ndise from other

subject merc handise. Id. at 11. Wit h specific respe ct to dusted shrimp, Eastern F ish recounts that Commerc e, apply ing a Diversified Products analy sis, ex cluded dusted shr imp from the investig ations “larg ely on its finding that dusted shrimp constituted a sepa rate class or kind of me rcha ndise from a ll covere d

merc handise.” Id. at 13. Easter n Fish submits that it was improper for Commerc e, on re mand, to place dusted shrimp within the scope of the investigations y et also conc lude that it was not require d to perfor

m a class- or-kind ana ly sis with respect to dusted shrimp. Id. at 4. Easter n Fish’s a rgument does not persua de the c ourt that the Redete rmination is contrary to law. The pr emise of the a rgument–that Commerce imprope rly has avoide d making a deter mination on whether or

not dusted shrimp is a separate class or kind of subject

merc handise–misconstrues the Redeter mination and is contrar

y to the rec ord and pr ocedur al history of this case . I mplicit in t he Rede termination is a dec ision by the Depa rtment that dusted shrimp is included within the same class or kind of merc handise a s all other subjec t shrimp. Commerce issued the Redeter mination in response to the orde r in Ad Hoc I II , which found fa ult with the Depar

tment’s deter

mination that dusted shrimp was a sepa rate class or kind of merc handise fr om the subject merc handise. Ad Hoc I II , 33 CI T at __, 637 F . Supp. 2d at 1179. The c ourt observe d that the g ener al scope lang uag e wa s not lim ited to frozen shrimp that lacke d any

form of a coating , seasoning , marinade , or sauc e and tha t it appear ed to include all forms of pr ocesse d frozen wa rmwate r shrimp, as def

ined in the g ener al scope lang uag e, thatConsol. Court No. 05-00192 P age 10

wer e not spec ifically

excluded. Id. The c ourt also noted that the g ener al scope languag e also encompa ssed food pre parations, other than pre pare d meals, that conta ined more tha n twenty perc ent by

weig ht of war

mwater shrimp. Id. Easter n Fish’s objec tion relies in part on the f ollowing se ntence in the Redeter mination: “Given that the Depa

rtment now finds dusted shrimp to be cove red by the plain languag e of the scope a nd is thus subj ect mer chandise , we a re no long er e x amining whether it is a separate class or kind of mer chandise for pur poses of de termining whether it should be covere d or excluded.” Retermination 17. Def

endant- intervenor

construes this sentenc e, and r elated disc ussion in the Redeter mination, as signify

ing that Comm erc e has de cided that it nee d not consider whe ther dusted shrimp constitutes a separ ate c lass or kind of mer chandise . Def .-I nterve nor Comments 3-4. Def endant- intervenor ’s ar gument rests on a se lective r eadingof the De partment’s discussion of the “c lass or kind” issue. Considere d as a whole, the ana ly sis in the Redeter mination is not consistent with a deter mination that dusted shrimp is a separate class or kind of merc handise. In the investig ations, Commerce r eg arde d all imported merc handise within the scope of the investig ations to comprise a sing le class or kind of merc handise, a

nd nothing in the Redete rmination modifies that approa ch. To the c ontrary , Commerce e x plicitly stated in the Redeter mination its conclusion that dusted shrimp is “cove red by the plain languag e of the scope and is thus subject merc handise.” Redeter mination 17. Moreover , Commerce e x pressly reje cted Easter n Fish’s c omment, made in re sponse to the dra ft rema nd rede termination, that “be cause dusted shrimp constitutes a separ ate c lass or kind of mer chandise from all other subject

merc handise, the D epar

tment must ensure that all of the initiation require ments have be en metConsol. Court No. 05-00192 P age 11

for dusted shr imp for ea ch countr y , and must conduct a

n L TFVinvestigation for dusted shrimp from ea ch countr

y .” Id. at 12. In disag ree ing w ith the comment, Commerce e x plained that beca use of its conc lusion that dusted shrimp “constitutes a food pre paration within t he mea ning of the scope of the orig inal investigations, we do not need to c onduct new inve stigations for dusted shrimp.” Id. at 16. Commerce expressly disclaimed the e arlier Diversified Products analy sis under which it cha rac terized dusted shrimp as a se parate class or kind of subject

merc handise. Id. at 17 (“ We no longe r employ the irre levant ana ly sis that the Court rejec ted.”)

. When rea d in its entirety

and in the conte x t of the re cord a nd proce dural history , the Redeter mination does not support defenda nt-intervenor ’s objection that Commerce improperly disreg arde d the question of whe ther dusted shrimp constitutes a se parate class or kind of

merc handise. B eca

use the c ourt reje cts defe ndant-interve nor’s interpr etation of Commerc e’s decision as state d in the Redeter mination, it also m ust rejec t the reque st for a se cond re mand. III. C O N C L U S I O N The Rede termination is in accor dance with law and c omplies with the court’s orde r in Ad Hoc I II . The c ourt will affirm the Re deter mination by

enter ing judg ment acc ording ly

. /s/ Timot hy

C. St ance u Timothy C. St ance u J udg e Dated: April 14, 2010 New Y ork, Ne w York