AD HOC SHRI MP TRAD E ACTION

COMMITTEE, VERSAGGI SHRIMP CORP. and INDIAN RIDGE SHRIMP CO. , Plaintiff

s,

v. UNITED STATE S ,

Defend ant, and EASTERN FISH COMPANY, INC. ,

Defendant-Inte

rvenor. Slip Op. 07-11 UNITED STATES COURT OF INTERNATIONAL TRADE

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

OPINION [Plaintiffs’ motion for judgment on the agency record denied due to failure to challeng e final injury determination of U.S. I nternational Trade Commission] Dated: January 23, 2007 Dewey B allantine L

LP ( Bradford L. Ward

, Rory F. Q

uirk and Mayur R. Patel

) for plaintiff. Peter D. Keisler , Assistant Attorney Gene ral, David M. Cohen , Director, Patricia M. McCarthy , Assistant Director, Commercial Litiga tion Branch, Civil Division, United States Department of Justic e; Christine J. Sohar , Office of the Chief Counsel for I mport Administra

tion, Unite d States De

partmen t of Commer

ce, of c ounsel, f

or defe ndant. Kelley Drye &

Warre n LLP ( Michael J. Coursey

and Mary T. Staley ) for de fendant

intervenor. Stanceu, Judge: Pla

intiffs Ad Hoc Shrimp

Trade A ction Commit

tee, Ve rsaggi Shrimp Corp., an d Ind ian Ridg e Shrimp Co. (“plain tiffs”) challen

ge six ame

nded fina l antidumpi

ng “les sConsol. Court No. 05-00192 Page 2

than fair value” determinations issued on Februar y 1, 2005 by

the United States Department of Commerce (“Commerce”) pertaining to imported frozen shrimp. They alleg e that Commerce improperly excluded a produc t known as “dusted shrimp,” which is frozen shrimp that is coated with flour, from the scope of each of the investig ations resulting in the amended final determinations. Plaintiffs, as the petitioners in the administrative proceedings, had soug ht antidumping duty investiga tions on a proposed class or kind of imported merchandise that was sufficiently broa

d to include dusted shrimp and, during those proceedings, spe cifically had ur ged Commerce

to include

dusted shr

imp within th e scope o f the inve stigations. Because of the exclusion of dusted shrimp from the scope, the antidumping duty orders that resulted from the investigations, which together impose a ntidumping duties on frozen warmwater shrimp from Brazil, China, Ecuador, I ndia, Thailand and Vietnam (collectively “the exporting countries”), do not apply to dusted shrimp. Plaintiffs move under USCIT R. 56.2 for judgmen t on the ag ency

record , seeking

a reman d to Commer

ce unde r which Co mmerce would be directed to reissue its less than fair value determinations and a mend the resulting antidumping duty orders to include dusted shr imp within the scope of the investigations and the orders.
Becau se plainti ffs, although ha ving bro ught a ti mely challen ge to the amended final les s than fa

ir value determinations of Commerce, failed to challeng e the final affirmative injury determination of the U. S. Int

ernatio nal Trad

e Commission

(the “Com

mission”)on which t

he antidu mping dut

y orders on frozen shrimp were based, the court de nies plaintiffs’ motion for judgment on the
agency record and dismisses this action.Consol. Court No. 05-00192 Page 3 I. B ACKGROUND According to the findings of Commerce in the a ntidumping duty investigations, the coating of flour present on dusted shrimp facilitates fur ther processing, such as breading or battering, in the production of prepared f rozen shrimp products. As discussed in detail below, Commerce

included dusted shr

imp within th

e scope o f the inve stigations upon issu ing its preliminary less than fa

ir value determinations but expressly excluded dusted shrimp in the final and amended final determinations, despite the objections that plaintiffs had raised. Plaintiffs had filed their petitions with Commerce and the Commission on December 31, 2003, in wh

ich petiti ons they

sought th e impositio n of antid umping du

ties, in ac cordanc e with the procedures of 19 U.S.C. § 1673 et seq. , on imports of certain frozen and canned warmwa ter shrimp fr om the expor

ting cou ntries. T he petitions alleg ed that th ese impor ts are, or are lik

ely to be, sold in the United States at less than fair value, and are mater ially injuring or a

re threatening to materially injure an industry in the United States, within the meaning of 19 U.S.C. § 1673. In response to plaintiffs’ petitions, the Commission, on January 8, 2004, published a notice of initiation of its preliminary investiga tion under 19 U.S.C. § 1673b(a) to determine whether there is a reasonable indication that an industry or industries in the United States are materially injured or thr

eatened with material injury by reason of

the allegedly

unfairly trade d imports of shrimp. Certain Fro zen and Can ned W

armwater S

hrimp and P

rawns From Brazil, China, Ecuador, India, Thailand, and Vietnam , 69 Fed. Reg. 1301 (Jan. 8, 2004). Commerce published a notice of initiation of its antidumping duty investiga tions on January 27, 2004 (“Notice of Initiation”). Notice of Initiation of Antidumping Duty Investigations: Certain Frozen and Canned

Warm water Shrim

p From Bra

zil, Ecuad

or, India, Thailand, th e People ’s Repub licConsol. Court No. 05-00192 Page 4

1 In pertinent part, the Notice of Initiation preliminarily

described the scope of the investig ations as

follows: [C]ertain warmwater shrimp and prawns, whether frozen or ca nned, . . . head-on or head-off, shell-on or pee led, tail-on or tail-off, deveined or not deveined, cooked or raw, or otherwise processed in frozen or canne d form. * * * Frozen shrimp and prawns that are packed w ith marinade, spices or sauce are included in the scope of the investigations. I n addition, food preparations , which are not “prepa red meal

s , ” that contain more than 20 percent by weight of shrimp or prawn are also included in the scope of the investigations

. Excluded from the scope are (1) breaded shrimp and prawns (1605.20.10.20); (2) shrimp and prawns . . . commonly referred to as coldwater shrimp, in any state of proc essing; (3) fresh shrimp and prawns whether shell-on or peeled (0306.23.00.20 and 0306.23.00.40); (4) shrimp and prawns in prepared meals (1605.20 .05.10); a

nd (5) dr ied shrimp

and praw ns. Notice of Initiation , 69 Fed. Reg. at 3877 (emphasis added). of China and the Socialist Republic of Vietnam , 69 Fed. Reg. 3876 (Jan. 27, 2004) (“ Notice of
Initiation ”). In the Notice of I nitiation, Commerce described the scope of the investigations according to the proposed class or kind of mer chandise as defined in the petitions. This proposed
scope langua ge encom passe d shri mp pro ducts that h ad und ergone v ariou s leve ls of p rocess ing, including shrimp that had been prepared by the addition of marinade, spices or sauces, but excluded breaded shrimp. The petitioners’ proposed scope lang uage, as stated in the petitions and as reflected in the Notice of I nitiation, was sufficiently broad to include dusted shrimp. 1
In the Notice of Initi ation, Comm erce se

t aside a brief pe riod of time for the

parties t o raise issues pertaining to the scope of the investiga tions. See id. at 3877. Between February and June 2004, interested parties submitted comments on various scope-related issues, including issues involving whether battered shrimp and dusted shrimp are or should be inc luded within thatConsol. Court No. 05-00192 Page 5

2 The five-part definition, as adopted by Commerce, is set forth later in this opinion. scope. Defendant-intervenor Easter n Fish Company, I

nc. requested that dusted shrimp be excluded f

rom the sc ope of the

investig ations. During July and Aug

ust 2004, Commerce published notices of its preliminary determinations that certain frozen and canned war mwater shrimp from each of the exporting

count ries a re bein g, or are likel y to be, so ld in the Un ited S tates at les s than fair v alue. Alth ough it included dusted shrimp within the scope of the investigations, Commerce indicated in each notice the possibility that, in the final determination, dusted shrimp might be e xcluded from the scope of the inves tigation s, stating as follow s: [W]hile substantial evidence exists to consider battered shrimp to fall within the meaning of the br eaded sh rimp exclus ion identif

ied in the scope of these proceedings, there is insufficient evidenc e to consider that shrimp which has been dusted falls within the meaning of ‘breaded’ shrimp. Howe ver, there is sufficient evidence for the Department to be pre pared to exclude this merchandise from the scope of the order provided an appropria te description can be developed. To that end, along with the previously solicited comments regarding brea ded and battered shrimp, the Department solicits comments from interested parties which enumerate and describe a clea r, administrable definition of dusted shrimp. Notice of P

reliminar y Determ ination of S

ales at Les

s Than Fair V

alue, Neg ative Pre liminary
Determi nation of Cri tical Circu mstance s and Postp onement

of Final De terminati

on: Certai

n Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam , 69 Fed . Reg. 42,672, 42,676-77 (July 16, 2004) (“ Preliminary Determination ”) (citation omitted). In response to the solicitation of comments, Eastern F ish Company, I nc. and Long John Silver’s, Inc. submitted a proposed definition for dusted shrimp that Commerce later adopted. 2
See App. to Pls.’ Ad Hoc Shrimp Trade Action Comm. et al. Mem. of Law in Support of J. on the Agency

R. Pursuant to Rule 56.2 (“App. to Pls.’ Mem.”), Ex. 15 ( Letter from CollierConsol. Court No. 05-00192 Page 6

Shannon Scott to Sec’y of Commerce (Aug. 2 , 2004)). Plaintiff s did not pr

ovide Comme

rce with a definition of dusted shrimp. However, on August 2, 2004, plaintiffs submitted comments and a declaration opposing the exclusion of dusted shrimp from the scope of the investig ation. Id. Ex. 25 ( Letter from Dewey Ballantine LLP to Sec’y of Commerce (Aug. 2, 2004)). Plaintiffs argued that a clear a

dministrable definition of dusted shrimp is not achievable. Id. Ex. 25 at 10. Plaintiffs also submitted to Commerce multiple case briefs arguing that dusted shrimp should be included in the scope. Id. Exs. 26-35 (case briefs submitted by De wey B allantine LL

P to the Secretary of Commerce in October and November 2004). Commerce held a scope hearing on N ovember 23, 2004 and subsequently issued memoranda regarding

the scope of its investigations. Id. Ex. 14 ( Commerce Scope Clarification Mem. Regarding Dusted Shrimp and Battered Shrimp (Nov. 29, 2004)), Ex. 36 ( Commerce Scope Clarification Mem. Regarding Shrimp Scampi (Nov. 29, 2004)). In one of the

memoranda, Commer

ce conc luded tha

t “dusted shrimp is c omprised

of components that c

reate clear phy sical characteristics that separate dusted shr imp from subject merchandise.” Id. Ex. 14 at 23. Commerce found that the definition of dusting does not encourag e removal of dusting after importation as a means to circumvent an antidumping duty order, as “removal of the dusting layer would be

costly, time consuming and f atal to the quality of the produc t.” Id. Ex. 14 at 25. Further more, “t he remov al of the

dusting l ay er would

compromis e the qua

lity of the pr oduct, such as its taste, appearance, moisture content and nutritional conte nt.” Id. Ex. 14 at 25. Commerce also excluded from the scope “battered shrimp,” whic h it described as a shrimp-based product that “when dusted in accordance w ith the definition of dusting, [is] coated with a wet viscous layer c ontaining egg and/or milk, and par -fried.” Id. Ex. 14 at 28.Consol. Court No. 05-00192 Page 7

3 As to the scope of the investigation, Commerce used the same lang uage and reached the same conclusions in the other five final less than fair value dete rminations. See Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp Fro m Brazil , 69 Fed. Reg. 76, 910 (Dec . 23, 2004) ; Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the People’s Republic of China , 69 Fed. Reg. 70,997 (Dec. 8, 2004) ; Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From Ecuador , 69 Fed. Reg. 76, 913 (Dec . 23, 2004) ; Notice of F inal Dete rmination o

f Sales at Le

ss Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Frozen and Canned

Warm water Shrim

p From Ind

ia , 69 Fed. Reg. 76, 916 (Dec . 23, 2004) ; Notice of Final Determination of Sales at Less Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Frozen and Canned Warmwater Shrimp From Thailand , 69 Fed. Reg. 76,918 (Dec. 23, 2004). In its final determinations, in which it found that certain fr ozen and canned warmwater shrimp fr om the expor

ting cou ntries ar e being , or are

likely to be, sold

in the Unit

ed States at less than fair value, Commerce excluded dusted shrimp from the scope of the inve stigations and, accordingly , from the class or kind of merchandise it found to be sold at less than fair va lue. See Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69 Fed. Reg. 71,005 (Dec. 8, 2004). 3 To exclude du sted shrim

p from the

scope, Co mmerce, in each o f the six final deter minations, adopted the definition proposed by Eastern Fish Company, I nc. and Long John Silver’s, I nc., defining “dusted shrimp” a s a produc t that: (1) Is produced f

rom fresh (or thawed-from-frozen) a nd peeled shrimp; (2) To which a ‘dusting’ lay

er of rice or wheat flour of at lea st 95 percent purity ha s been applied; (3) So tha

t the entir e surfa ce of the shrimp fle sh is thoro

ughly and eve nly coated with the flour; and (4) The non-shrimp content of the end pr oduct constitutes between 4 to 10 percent of the product’s total weig ht after being dusted, bu

t prior to b eing fr

ozen; and ( 5) Is

subjecte d to IQ F free zing immed iately after application of the dusting lay er. Id. at 71,008 n.4.Consol. Court No. 05-00192 Page 8

On December 7, 2004, plaintiffs filed comments alleging ministerial errors in the calculations performed in connection with the final less than fair va lue determinations issued by Commerce. Plaintiffs alleged as a ministerial error the exclusion of dusted shrimp from the scope of the investigations and argue d that Commerce failed to consider plaintiffs’ submitted declaration on the dusted shrimp issue. While it was

publishing

its final le ss than fa

ir value determinations, Com

merce s ent a letter to the Commission, apparently in response to a Commission request for clarification on the question of dusted shrimp. The letter clarified that dusted shrimp, as identically defined in each of the not ices ann ouncing the fina l determi nations, i s excluded

from the s cope of t

he six investigations. Letter from Edward C. Yang, Senior Enforcement Coordinator, Dep’t of Commerce, to Robert G. Carpenter, Dir., Office of Investigations, Int’l Trade Comm’n (Dec. 21, 2004) (Vietnam Public Admin. R. Doc. No. 608). In January

2005, the Commission published a notice summarizing its findings in the final phase of its injury investiga tion. See Certain Frozen or Canned Warmwater Shrimp and Prawns From Brazil, China, Ecuador, India, Thailand, and Vietnam , 70 Fed. Reg. 3943 (Jan. 27, 2005) (“ Commission Final Injury Determination ”). The Commission separately published its detailed findings. See Certain Fro zen or Cann ed W

armwater S

hrimp and P

awns [ sic ] From Brazi l, China, Ecuador, India, Thailand, and Vietnam , USITC Pub. 3748, Inve stigations Nos. 731-TA1063-1068 (Final) (Jan. 2005) (“ USITC Pub. 3748 ”). The Commission found two domestic like products. One like product, to which the Commission referred as “ce rtain non-canned warmwater shrimp,” consisted of fresh war mwater shrimp and prawns and those frozen warmwater shrimp and prawn products included in Commerce ’s scope definition. Id. at 11. TheConsol. Court No. 05-00192 Page 9

4 See also Notice of Am. Final Determination of Sales at Less Than Fair Value and Antidumpi

ng Duty Or

der: Cert ain Frozen

Warm water Shrim

p from Braz

il , 70 Fed. Reg. 5143 (Feb. 1 , 2005); Notice of Am. Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From the People’ s Republic of China , 70 Fed. Reg. 514 9 (Feb. 1, 2005); Notice of A m. Final De terminati on of Sales

at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From Ecuador , 70 Fed. Reg. 515 6 (Feb. 1, 2005); Notice of A m. Final De terminati on of Sales

at Less Than Fair Va lue and An tidumping D uty Orde r: CertainFrozen W

armwater S

hrimp FromIndia , 70 Fed. R eg. 514 7 (Feb. 1, 2005); Notice of A m. Final De terminati on of Sales

at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Thailand , 70 Fed. Reg. 5145 (Feb. 1, 2005). other domestic like product was canned warmwate r shrimp and prawns (“canned warmwa ter shrimp”). Id. The Commission found no injury or threat with respe ct to the canned warmwater shrimp industry, which consisted of a single domestic producer. Id. at 3, 9. The Commission found that material injury to the “ certain non-canned warmwater shrimp” industry in the United States was being caused by imports of subject merchandise other than canned shrimp. I t found injury to the domestic non-canne d shrimp industry “by reason of imports from Brazil, China, Ecuador, India, Tha

iland, and Vietnam of certain non-canned wa rmwater shrimp and prawns . . . that have been found by

the Department of Commerce (Commerce) to be sold in the United States at less than fair value (LT FV).” Id. at 1. The Commission expressly recog nized the exclusion by Commerce of dusted shrimp from the sc ope of the subject non-canned warmwate r shrimp and prawns. Id. at 5 (“Commerce has additionally excluded shrimp sauce, certain dusted shrimp, and certain battered shrimp from the scope def inition.”). On February

1, 2005, Commerce published amended final determinations and antidumping duty order

s. See Notice of A m. Final De terminati on of Sales

at Less Than Fair Value and Antidumpi

ng Duty Or

der: Cert ain Frozen

Warm water Shrim

p From the

Socialist Republic of Vietnam , 70 Fed. Reg. 5152 (Feb. 1, 2005) (“ Am. Final Determination and Order ”). 4Consol. Court No. 05-00192 Page 10

5 Plaintiff s broug ht six separ

ate act ions by filing si x summonses a

nd six compla

ints corresponding to each of the ame nded less than fair value determinations. The cases we re consolidated under Court Number 05-00192 by order of the Court of Inter national Trade on April 6, 2005, in response to plaintiffs’ consent motion for consolidation. Commerce declined to alter the scope of the investig ations to include dusted shrimp and retained, in the six ame

nded fina l determi nations, t he same e xclusion de finition f

or “duste d shrimp”

that it had adopted in the final determinations. See id. at 5155-5 6. Commerc e disag reed wit h plaintif fs’ contenti on that its e

xclusion of

dusted shr

imp from th e scope o f the inve stigations was a ministeria

l error, stating

that its “d

ecision to exclude du sted shrim

p from the

scope of this investig ation was

an intent ional dec ision, and

not a minist

erial er ror.” A pp. to Def

’s. Mem. in Resp. to Pls.’ Mot. for J. on the Agency R., Ex. 22 at 21 ( Commerce Analysis of Ministerial Error Allegations (Jan. 26, 20 05)). Commerce excluded imp orts of c anned wa rmwater shrimp and prawns from the scope of the antidumping duty orders due to the findings by the Commission that injury to the domestic non-canned shrimp industry was caused by

imports of subject non-canned warmwater shrimp and that imports of ca nned warmwater shrimp did not result in injury or threat to either of the domestic industries producing the like products. See Am. Final Determination and Order , 70 Fed. Reg. at 5153 (stating that the antidumping duty order reflects the Commission’s “distinction between canned warmwater shrimp and prawns and certain non-canned warmwater shrimp and prawns. Specifically , canned warmwater shrimp and prawns are excluded from the scope of the orde r.”). In this consolidated action, plaintiffs alleg e that Commerce’s less than fair value determinations, in excluding dusted shrimp from the scope of the investigations, are unsuppor ted by substantial evidence

on the record and are otherwise not in ac cordance with law. 5 PlaintiffsConsol. Court No. 05-00192 Page 11

move for judgment on the agency record pursuant to USCIT R. 56.2. As relief , plaintiffs seek a remand o f the fina

l less than fair va lue dete rmination s to Commer

ce unde r which th e court would instruct Commerce to rescind its exclusion of dusted shrimp from the scope of the underly ing antidumping duty investiga tions and to amend the resulting antidumping duty orders to include dusted shrimp within the scope of those orders. See Pls.’ Mot. for J. on the Agency R. at Or der

. They also see

k an order requiring Commerce a nd the U.S. Bureau of Customs and Border Protection (“Custom s”) to en sure, to t he extent p ossible, c ollection of cash d eposits on all unliquida ted entr ies of dus ted shrimp

made sinc e publica

tion of the

prelimina

ry less than fair value determinations in the investigations. Id.
II. D ISCU SSI ON A. Subject Matter Jurisdiction Plaintiffs bring their challenges to the final amende d less than fair value determinations under Section 516A of the Tariff Act of 1930, as ame nded, 19 U.S.C. § 1516a (2000), which provi des fo r judi cial r eview of vari ous de termi natio ns of C ommer ce and t he Com miss ion ar isin g under the antidumping laws. Plaintiffs assert jurisdiction under 28 U.S.C. § 1581(c) (2000) and 19 U.S.C. § 1516a(a)(2)(A)(i)(I I). Plaintiffs’ reliance on 28 U.S.C. § 1581(c) for subject matter jurisdiction is correc t, but they err in citing to 19 U.S.C. § 1516a(a)(2)(A)(i)(I I). Plaintiffs’ case does not a rise under subsection (a)(2)(A)(i)(I

I) of 19 U.S.C. § 1516a but arises instead under subsection (a)(2)(A)(i)(I

). The Court of International Tr ade is granted, in 28 U.S.C. § 1581(c), “exclusive jurisdiction of any civil action commenc ed under section 516A of the Tariff Act of 1930.” 28 U.S.C. § 1581(c). Section 516A of the Act specifies as judicially reviewable variousConsol. Court No. 05-00192 Page 12

determinations in countervailing duty and antidumping proceedings. See 19 U.S.C. § 1516a(a)(2)(B). Specifica lly identified as a re

viewable determination by clause (ii) of 19 U.S.C. § 1516a(a)(2)(B) is “[a] final negative de termination by the administering authority or the Commission under section . . . 1673d of this title [referring to a final determination in an antidumping duty investiga tion], including, at the option of the appellant, any part of a final affirmative determination which specifically excludes any company

or product.” Id. § 1516a(a)(2)(B)(ii). This provision prec isely describes the challenge that plaintiffs are bringing to the amended final less than fair value determinations by Commerce. To obtain review of such a determination, an interested party must proceed under 19 U.S.C. § 1516a(a)(2)(A)( i)(I) by filing a summons within 30 days of the F ederal Register publication of notice of the determination and, within thirty day s thereafter, by

filing a complaint. Id. § 1516a(a)(2)(A)(i). Plaintiffs’ reliance on subsection (a)(2)(A)( i)(II ) is incorrect because that provision addresses judicial review of a determination “de scribed in clause (i) of subparag raph B” of 19 U.S.C. § 1516a(a)(2). Id. § 1516a( a)(2)( A)(i)( II ). Clause (i) of sub parag raph B s pecific ally excludes from its scope a part of an affirmative final less than f air value determination, as referred to in clause (ii), that specifica lly excludes a product. See id. § 1516a(a)(2)(B)(i) (“Final affirmative determinations by the administering authority and by the Commission under section . . . 1673d of this title, including any neg ative part of such a determination (other than a pa rt referred to in clause (ii))”). Plaintiffs’ summonses were timely filed on Ma rch 3, 2005, thirty day

s after the Federal Registe r publica tion of the

amended final les s than fa

ir value determinations. Their comp laints, filed on A

pril 1, 200 5, also we

re timely under 19 U.S.C. § 151 6a(a)(2)(A)( i)(I ). The c ourt, in itsConsol. Court No. 05-00192 Page 13

discretion, will deem this case to have been brought under the correct statutory

provision, 19 U.S.C. § 1516a(a)(2)(A)(i)(I ). Accordingly , the court will consider the amended final determinations of Commerce to be properly before the court for judicial review. The court reaches the opposite conclusion with respec t to the final injury determination of the Commission. Although plaintiffs appealed the six amended final less than fair value determinations that Commerce issued, they did not appeal the final affirmative injury determination of the Commission that pre ceded, and was necessa ry to, the issu

ance of the six antidumping duty order

s. Consequently, pursuant to 19 U.S.C. § 1516a(a)(2), the Commission’s final injury determination bec ame unappealable, i.e. , beyond judicial revie w by the Court of International Trade , when thirty day s had passed following publication without the filing of a

summ ons co mmenc ing an a ppeal . Becaus e plai ntiff s, in bringi ng thi s acti on, di d not chall enge the final injury deter

mination of the Commission, the court is now without subject matter jurisdiction to remand that determination to the Commission or otherwise order the Commission

to recon sider it. B. Plaintiffs’ Rule 56.2 Motion Plaintiffs’ Rule 56.2 motion raises several issues. Because, for the r easons discussed above, the court lacks jurisdiction to review the Commission’s final injury determination, the first issue is whether that determination, in its current form, may be construed as a finding that injury occurr

ed to the domestic non-canned warmwater shrimp industry as a result of imported subject merchandise that included dusted shrimp. Because the court concludes that the Commission’s final injury determination cannot be so construe d, the court next considers whether it could no w direct

Commerce , on rema

nd, to ame

nd the ant idumping duty orders t oConsol. Court No. 05-00192 Page 14

include dusted shrimp within the scope of those orders. The court concludes tha t the antidumpin

g statut e prohibi ts it from d

oing so. As a cons equenc e, the mod ification that pla

intiffs urge th e court t

o order C ommerce

to make to

the antid umping du

ty orders, a

nd the re lated fo rms of relief sought by

plaintiffs in their Rule 56.2 motion, are unavailable. Finally , in response to a point rais ed by

plaintiff s at oral a rgumen t, the cou rt consid ers whether, in the altern

ative, it should remand the amended final less than fair value dete rminations to Commerce in anticipation that the Commission might modify its final injury determination voluntarily and ther eby allow for a possible later remand directing Commerc e to amend the antidumping duty orders to include dusted shr

imp. For t

he sever al reas ons discus sed below , the cour t conclud es that thi s alterna

te form of relief is not available to plaintiffs in the circumstances of this ca se. 1. The Commission’s Final Injury Determination Did Not Find Injury by Reason of Im ports of F oreign

Mercha ndise Tha t Inc luded Dus ted Shrimp Commerce’s less than fair value determinations did not apply to a class or kind of mercha ndise tha t include d dusted sh

rimp. I nstead, a s discusse d previou sly , Commerc e express ly excluded dusted shrimp from its determinations of sales at less than fair value. I n its final determination, the Commission found material injury “by reason of imports from Brazil, China, Ecuador, India, Tha

iland, and Vietnam of certain non-canned wa rmwater shrimp and prawns . . . that have been found by

the Department of Commerce (Commerce) to be sold in the United States at less than fair value (LT FV).” USITC Pub. 3748 at 1; see also CommissionFinal Inju ry Determination . The Commission determined that a domestic industry is materially injured by reason of imports of the subject merchandise other than imports of “c anned warmwater shrimp,”
i.e. , that the domestic industry is materially injured by rea son of imports of the “certain non-Consol. Court No. 05-00192 Page 15

canned warmwater shrimp” subset of the subject merchandise defined by Commerce. Commission Final Injury Determination. The limitation to subject merchandise that the Commission observed in its causation analysis is required by

statute. The Commission is directed to “make a final determination of whether –(A) an industry in the Unit

ed States –(i) is ma terially injured, or (ii) is

threate ned with material injury, or (

B) the establishment of an industry in the United States is materially reta rded, by reason of

imports, or sales (or the likelihood of sales) for importation, of the merc handise with respect to which the administering authority has made an affirmative determination under subsection (a)(1) of this section. ” 19 U.S.C. § 1673d(b)(1) (2000) (emphasis added). The determination under subsection (a)(1) is the determination by Commerce “of whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value.” 19 U.S.C. § 1 673d(a) (1). Be cause Co mmerce e xcluded dus ted shrimp

from its le ss than fa

ir value de terminat ions, the Commission’s

injury determination may

not prope

rly be constr ued as a finding that the injury the Commission determined to be occurring to the domestic non-canned warmwater shrimp industry occurred by

reason of subject merchandise that included dusted shrimp. In response to questions by the court concerning the eff ect of the Commission’s final injury determination on the re lief plaintiffs are seeking, counsel for pla intiffs argued that the Commission’s analysis culminating in its final injury determination would not have been different had Commerce included dusted shrimp within the scope of the fina l investigation. Oral Argument Tr. 39-42, Jan. 19, 2006. Counsel for plaintiffs also arg ued that the dumping margin calculations of Commerce that were relied upon by the Commission included sales ofConsol. Court No. 05-00192 Page 16

6 Plaintiffs also argued that respondents had the opportunity and incentive to advocate for identification of dusted shrimp as a separate like product befor e the Commission. See Oral Argument Tr. at 26, Jan. 19, 2006 (“the parties who mig ht have said something about dusted shrimp as a

separa te like pr oduct had multiple op

portunitie s at the pr

elim inves tigation

phase before the [Commissi on] and did n ot take a dvantag e of that .”); see also Pls.’ Reply Br. 17. The court does not see the relevance of this arg ument, which pertains to the Commission’s determination of domestic like products, to the issues presented by this case. By

statute, the Commission was directed to determine, in the final phase of its investigation, injury or threat to a domestic industry or industries by reason of imports or sales of the subject merchandise, whic h did not include dusted shrimp. dusted shrimp. The Commission’s published results, particularly the data r elied upon by the Commission, lend some

support to

these contentions . The bac kgroun d analy sis publishe d with the views of the Commission states that U.S. imports of subject merchandise were based on Commerce statistics. See USITC Pub. 3748 at I-2, n.3. The backg round analysis states in seve ral places t hat “[t]o the

extent off

icial sta tistics contain any

imports of

‘dusted’ or ‘batte

red’ shr imp (which Co mmerce e

xcluded fr

om the sco

pe of inve stigations in its final deter minations)

imports may be slightly

overstated.” Id. ; see also id. at IV-6 & I V-7. Even were the court to acce pt plaintiffs’ argument that the Commission’s analy sis would not have been different had Commerce

included dusted shr

imp in the sc ope of the

investig ations fo r the fina l less than fair value determinations, the court could not overlook the point that the Commission did not determine, and cannot consistent with law be considered to have determined, that injury re sulted to a domestic industry as a re sult of subject merchandise that included dusted shrimp. As the

statute r equired , the Commis sion issue d an injur y de terminat ion that e xpressly

limited its analysis of ca

usation to certain subject merchandise, i.e. , all subject merchandise except canned warmwater shrimp. Dusted shrimp was not included within that subject merchandise. 6Consol. Court No. 05-00192 Page 17

7 As provid

ed by 19 U.S.C. § 1 673, “[i]f–( 1) the ad ministerin

g autho rity

determines that a class or kind of foreign merchandise is being , or is like ly to be, sold in

the Unite d States a

t less than its fair value, and (2) the Commission determines that–(A) an industry in the United States–(i) is materially injured, or ( ii) is threatened with material injury , or (B) the establishment of an industry in the United States is materia lly retarde d, by reason of

imports of that merchandise or by rea son of sales (or the likelihood of sales) of that merchandise for importation, then there shall be imposed upon such mer chandise an antidumping duty . . . .” 19 U.S.C. § 1673 (emphasis added). 2. Commerce Lacks Authority to Amend the Antidumping Duty Or ders to Include Dusted Shrimp Abse

nt a Fina l Inju ry Determi nation Per

taining to Dusted S hrimp Pl ai nt if fs ’ R ul e 5 6. 2 m ot io n s ee ks tw o b as ic fo rm s o f r el ie f. As th ei r f ir st , a nd pr im ar y, plea for relief, plaintiffs seek an order directing Commerce to rescind its determinations excluding dusted shr

imp from th e scope o f the ant idumping duty investig ations an

d to “ame nd its determinations to include ‘dusted shrimp’ among the products subject to the various re levant antidumping duty order

s for which cash deposits are required.” Pls.’ Mot. for J. on the Ag ency R. at Orde

r at 1. The

y a ugment t his propos ed relie f by

seeking an order directin g Commer

ce to “take su ch other steps as a

re nece ssary

to ensure that impor

ts of ‘dus ted shrimp ’ . . . are subject to the antidumping duty orde rs.” Id. at Order at 2. The primary r

elief that plaintiffs seek is bey ond the power of the court to grant. The statute, i n the cir cumstanc e of this c ase, doe s not perm it Commerc e to issue

an antidu mping dut

y order that imposes antidumping duties on merchandise not included within the class or kind of merchandise that was the subject of Commerce’s af firmative determination of sales at less than fair value and that also was the subject of an af firmative final injury de

termination by the Commission. See 19 U.S.C. § 1673. 7 Because of the statutory relationship between the final determination of sales of a class or kind of merchandise a t less than fair value and the subject of the Commissi on’s fina

l determi nation, th e court m ay

not direct Commerc e to take action th at isConsol. Court No. 05-00192 Page 18

contrary to the governing statute. Therefor e, even were the court to remand the a mended final less than fair value determinations with instructions to include dusted shrimp within the class or kind of me

rchandi se that is s

ubject to investig ation, the

court wo uld not hav e the aut

hority to instruct Commerce concurrently to amend the antidumping duty or ders so as to achieve the remedy that plaintiffs se ek. Plaintiffs seek an additional form of relief by means of their Rule 56.2 motion. They se ek an order requirin g Commer

ce and Cu stoms to ens

ure, to th e extent po ssible, tha t cash de posits are collected for all unliquidated entries of dusted shrimp made sinc e publication of the preliminary less than fa

ir value determinations in the investigations. Pls.’ Mot. for J. on the Agency R. at Order at 1-2. Plaintiffs essentially seek the retroactive benefit of provisional

measure s under th e antidum ping law . In it s preliminary less than fair va lue dete rmination s, Commerce included dusted shrimp within the scope of the subject merchandise. Upon the publication of an affirmative preliminary determination, Commerce is required to order the suspension of liquidation of entries of merchandise subject to the determination and the posting of a cash deposit, bond, or other security for antidumping duty liability on such entries. 19 U.S.C. § 1673b(d)(1)(B) & (d)(2). Entr ies of dusted shrimp therefore would have been subject to provisional measures, i.e. , suspensi on of liqui dation an d the posti

ng of se curity, until the issuance of the final less than fair value deter minations, at which point Commerce excluded dusted shrimp from the scope of the investigations. After the publication of the f inal determinations, Com

merce presumab ly d

irected Customs to r

elease past entr ies of dus ted shrimp from suspension of liquidation and to liquidate those entries without regard to antidumping duties. Plaintiffs’ request for relief would require that Commerce be directed to order, again, theConsol. Court No. 05-00192 Page 19

suspension of liquid

ation for any entries o f dusted shrimp that still may be unliqui dated an

d to require , again , securi

ty f or antidu mping dut

y lia bility , this time in

the form t

hat plain tiffs re quest,
i.e. , cash deposits. Plaintiffs’ request for this form of relief is based on an implied assumption that entries of dusted shrimp from the six exporting countries eventually could be liquidated so as to subject this merchandise to antidumping duties. That is not a valid assumption. Absent antidumping duty order

s applicable to dusted shrimp from the exporting countries, antidumping duties may not be assessed on those entries. Because the court lacks the power to direct Commerce to issue amended antidumping duty orders such as those sought by plaintiffs, the court cannot grant plaintiffs this additional relief. 3. Plaintiffs Are Not Entitled to the Alternate Relief They Sought at Oral Argument For the reasons discussed previously , the court is unable to grant the specific re lief sought by plaintiffs in their Rule 56.2 motion for judgment on the a gency record. Plaintiffs, however, raise on e additio nal issue , and in so d oing impl iedly

seek a f orm of re lief not so

ught in th eir motion. At oral argument, in response to questions by the court concerning the eff ect of the Commission’s final injury determination on the relief be ing requested, counsel for plaintiffs suggested that the court could rema nd to Commerce the amended final less than fair value determinations without concurrently directing a modification of the antidumping duty orders. Oral Argument Tr. 42-43, Jan. 19, 2006. I n that way, plaintiffs suggest, the court could allow for the possib ility

that the Co mmission co

uld modify

its injury determination volu

ntarily , perhap s in response to a possible referral by Commerce. The court interprets this sugge stion asConsol. Court No. 05-00192 Page 20

8 Arguably , plaintiffs’ complaint describes generally this proposed relief by se eking that the court “[p]rovide such other relief as is just and appropriate.” Compl. ¶ 21d. Howeve r, neither the complaint nor the Rule 56.2 motion describes the complicated and conting ent remand procedu re that p laintiff

s sugg ested at

oral ar gument. contempl ating a

possible f

uture re mand to Commerce to

modify the antid umping du

ty orders to include dusted shrimp, should it happen that the Commission takes such a voluntary a ction. The court observes that plaintiffs, although sugg esting this alternate form of relief at ora l argument, have not sought leave to a mend their complaint or their Rule 56.2 motion

ac co rd in gl y. 8 The cour

t is not oblig ated to a

ct on its ow

n to rewr ite plaint iffs’ co mplaint or

their motion. That motion, for the reasons discussed previously , seeks relief that the court is not empowered to grant. For these reasons alone, plaintiffs’ current Rule 56.2 motion must be denied.
Even wer

e the cou rt to cons ider pla

intiffs to have sou ght, ac cording

to applic able cou

rt rules, the alternate form of relief they now contemplate, the court nevertheless would conclude that this relief is not available to plaintiffs in the circumstances of this case. Those cir cumstances are such that plaintiffs could have obtained judicial review of the Commission’s final injury determination but d

id not do so. Congre ss specif ically provided , in 19 U.S.C

. § 1516a(a)(2)(B)(ii), for judicia l review that would have allowed plaintiffs to challenge “[a] final negative determination by the administering authority or the Commission under section . . . 1673d of this title, including, at the option of the appellant, any part of a final affirmative determination whic

h specif ically excludes a

ny c ompany

or produc

t.” 19 U.S. C. § 1516a(a)(2)(B)(ii). Plaintiffs had full opportunity to pursue an appeal of the Commission’s determination, having been placed on notice by Commerce’s original, final less than fair valueConsol. Court No. 05-00192 Page 21

9 It also would have been possible for plaintiffs, acting expeditiously, to file a summons and complaint seeking judicial review of Commerce’ s original, final less than fair value determinations. Although there is no way to know how such filing would have affected the course of these proceedings, the action could have served as notice to the Commission that the scope as defined in Commerce’s final investigations mig ht later have been enlarge d.

10 The court is aware of circumstance s, not analogous to those of this case, in which the Commission voluntarily has reconsidered a previous determination, such as where the data on which the determination was based later proved to be f alse or fraudulent. See Elkem Metals Co. v. United States , 26 CIT 234, 193 F. Supp. 2d 1314 (2002) (where the Commission reconsidered an injury deter

mination to determine whether the data on which that injury determination was based were false or misleading)

. determinations that dusted shrimp was excluded from the scope of the subject mercha ndise. As discussed in the background section of this opinion, those determinations were published in the Federal Register on Dec ember 8 and December 23, 2004. 9 Federal Register notice of the Commission’s final injury determination was published on January 27, 2005. Because plaintiffs did not appeal the Commission’s final injury determination, a court order directing Commerce to include dusted shrimp within the scope of the investigations and reissue its less tha

n fair va lue dete rmination s would be

futile sho

uld the Comm

ission ref use to act voluntarily to modify

its final injury determination. The cour t can now have no assurance that the Commission would modify its final determination in the way necessary

to the issuance of amended antidumpin

g duty orders. 10 Plaintiff

s are not entitled t o a reme dy t

hat forc es a
gover nment ag ency , in this ca se Commer ce, to conduct the

administr

ative pr ocess ne cessar

y to the issuance of remand redeterminations wher e that process, due to plaintiffs’ failure to bring the Commission’s final determination within the jurisdiction of the court, might well prove to be a useless exercise.Consol. Court No. 05-00192 Page 22

The Commiss ion’s oblig ation to lim it the cau sation analy sis of its in jury determination to subject merchandise as defined by Commerce would have been no bar to plaintiffs’ obtaining judicial review of the Commission’s final determination. Nor does it matter for purposes of obtaining any such judic ial revie

w that the Commission ma

y ha ve acte d corre ctly

at the time

in issuing a n injury determination in re liance on a defin ition by Commerce

of subject mercha

ndise that, thro ugh no f ault of the

Commission’ s, might la

ter have been determined

to be cont

rary to law. Indeed, had plaintiffs a ttempted to appeal the Commission’s final determination, the releva nt circu mstance s, in import

ant resp ects, wo

uld have b een ana

logous to those pre sent in Borlem S.A.–Empreedimentos Industriais v. United States , 91 3 F. 2d 9 33 ( Fed . C ir. 199 0). In Borlem , the Court of Appeals for the Federal Circuit held that the Court of I nternational Trade, under the remand a uthority of 28 U.S.C . § 2643(c )(1), ha d the powe

r to orde r the Commis sion to reconsider a final affirmative threa t of injury determination wher e, subsequent to the issuance of that determination, Commerce had amended the less than fair va lue determination and the antidumpin

g duty order to effec t substanti al reductions in the dumping margins

and rend er some of them de minimi

s . Id. at 935-36. Borlem , however, involved a final Commission determination that the Court of Appeals for the Federa l Circuit recognized to be properly under review in the Court of Interna tional Trade, a circumstance not present in this case. See id. at 936.
III. CONCL USION The Commission’s final determination, which is not before the court for review, f ound injury to a domes tic industr

y by reason o f imports o f a subse t of the su bject mer chandise that did not include dusted shrimp. In the absence of a determination by the Commission of injury or threat of injury by

reason of subject merchandise including dusted shrimp, the c ourt has no powerConsol. Court No. 05-00192 Page 23

to order Commerce, on remand, to amend the antidumping duty orders on frozen warmwater shrimp so a s to extend the scope o f the ord ers to inc lude duste d shrimp e ntries. T he speci fic relief plaintiffs seek in their Rule 56.2 motion is therefore unavailable. The court will deny plaintiffs’ Rule 56.2 motion and enter judgment dismissing this action.

/s/ Timothy C. Stanceu Timothy C. Stanceu Judge Dated: January 23, 2007 New York, New YorkAD HOC SHRI MP TRAD E ACTION

COMMITTEE, VERSAGGI SHRIMP CORP. and INDIAN RIDGE SHRIMP CO. , Plaintiff

s,

v. UNITED STATE S ,

Defend ant, and EASTERN FISH COMPANY, INC. ,

Defendant-Inte

rvenor. UNITED STATES COURT OF INTERNATIONAL TRADE

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

JUDGMENT Upon review of plaintiffs’ motion for judgment on the ag ency re cord and all relevant papers and proceedings had he rein, and upon due deliberation; it is hereby
ORDERED that plaintiffs’ motion is DENIED; and it is further
ORDERED that this action is dismissed.

/s/ Timothy C. Stanceu Timothy C. Stanceu Judge Dated: January 23, 2007 New York, New York