United States Court of Appeals 

for the Federal Circuit 

__________________________ 

AD HOC SHRIMP TRADE ACTION COMMITTEE, 

Plaintiff-Appellant, 

v. 

UNITED STATES, 

Defendant-Appellee, 

and 

GROBEST & I-MEI INDUSTRIAL (VIETNAM) CO., 

LTD., 

Defendant-Appellee. 

__________________________ 

2010-1027 

__________________________ 

Appeal from the United States Court of International 

Trade in case no. 07-CV-0380, Judge Thomas J. Aquilino, 

Jr. 

___________________________ 

Decided: September 8, 2010 

___________________________ 

KEVIN M. O’CONNOR, Picard, Kentz & Rowe LLP, of 

Washington, DC, argued for plaintiff-appellant. With him 

on the brief were NATHANIEL RICKARD, ANDREW W.

WENTZ, and DAVID A. YOCIS. 
AD HOC SHRIMP v. US 2

STEPHEN C. TOSINI, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department 

of Justice, of Washington, DC, argued for defendantappellee United States. With him on the brief were TONY 

WEST, Assistant Attorney General, JEANNE E. DAVIDSON, 

Director, and PATRICIA M. MCCARTHY, Assistant Director. 

MATTHEW R. NICELY, Thompson Hine LLP, of Washington, DC, argued for defendant-appellee Grobest & IMei Industrial (Vietnam) Co., Ltd. With him on the brief 

was CHRISTOPHER M. RASSI. 

__________________________ 

Before RADER, Chief Judge, BRYSON and DYK, Circuit 

Judges. 

RADER, Chief Judge. 

The Court of International Trade denied Ad Hoc 

Shrimp Trade Action Committee’s (“Ad Hoc”) motion for 

judgment upon the agency record following the first 

administrative review of an antidumping duty order 

covering certain frozen warmwater shrimp from the 

Socialist Republic of Vietnam. Ad Hoc Shrimp Trade 

Action Comm. v. United States, 31 I.T.R.D. (BNA) 1855 

(Ct. Int’l Trade 2009). Because the Court of International 

Trade should have affirmed the U.S. Department of 

Commerce’s (“Commerce”) decision on the merits, this 

court reverses the decision to dismiss and remands with 

instructions to enter judgment against Ad Hoc. 

I 

Commerce imposes antidumping duty orders upon 

imported merchandise that is sold in the United States 

below its fair value and materially injures or threatens to 
3 AD HOC SHRIMP v. US

injure a domestic industry. See 19 U.S.C. § 1673 (2006). 

An antidumping duty reflects the amount by which the 

normal value exceeds the export price of the merchandise. 

19 U.S.C. § 1673e(a)(1); 19 U.S.C. § 1677(35). The normal 

value is the price of the merchandise when sold for consumption in the exporting country. 19 U.S.C. 

§ 1677b(a)(1). The normal value may not reflect the fair 

value of the merchandise when the exporting country does 

not operate on market principles of cost or pricing structures. See 19 U.S.C. § 1677(18)(A). Therefore, when the 

exporting country has a nonmarket economy, Commerce 

must devise a constructed normal value: 

[Commerce] determine[s] the normal value of the 

subject merchandise on the basis of the value of 

the factors of production utilized in producing the 

merchandise and to which shall be added an 

amount for general expenses and profit plus the 

cost of containers, coverings, and other expenses. . . . [T]he valuation of the factors of production shall be based on the best available 

information regarding the values of such factors 

in a market economy country or countries considered to be appropriate by [Commerce]. 

19 U.S.C. § 1677b(c)(1). Commerce values certain factors 

of production, such as selling, general, and administrative 

expenses, factory overhead, and profit, by using financial 

ratios derived from financial statements of producers of 

comparable merchandise in the surrogate country. 

Dorbest Ltd. v. United States, 604 F.3d 1363, 1368 (Fed. 

Cir. 2010). Generally, if more than one producer’s financial statements are available, Commerce averages the 

financial ratios derived from all the available financial 

statements. Id. The statute “accords Commerce wide 

discretion in the valuation of factors of production.” 
AD HOC SHRIMP v. US 4

Nation Ford Chem. Co. v. United States, 166 F.3d 1373, 

1377 (Fed. Cir. 1999). 

II 

In 2005, Commerce imposed antidumping duties on 

certain frozen warmwater shrimp from the Socialist 

Republic of Vietnam. Certain Frozen Warmwater Shrimp 

from the Socialist Republic of Vietnam, 70 Fed. Reg. 5152 

(Feb. 1, 2005). In 2007, Commerce published the final 

results of its first administrative review of the antidumping duty order, covering entries from July 16, 2004, to 

January 31, 2006. See Certain Frozen Warmwater 

Shrimp From the Socialist Republic of Vietnam: Final 

Results of the First Antidumping Duty Administrative 

Review and First New Shipper Review, 72 Fed. Reg. 

52,052 (Sept. 12, 2007) (“Final Results”). Because the 

Socialist Republic of Vietnam has a nonmarket economy, 

Commerce selected Bangladesh as the surrogate country. 

Commerce used Bangladeshi shrimp market data as 

reported by the Network of Aquiculture Centres in AsiaPacific (“NACA Survey data”) to calculate the normal 

value of the imported shrimp. Although both parties had 

agreed that the market data from Apex Foods Ltd. 

(“Apex”), one of the largest Bangladeshi shrimp processors, were reliable, Commerce selected the NACA Survey 

data over the Apex data. 

In addition, Commerce calculated the surrogate financial ratios based on the financial statements of two 

Bangladeshi shrimp processors, Apex and Gemini Seafood 

Ltd. Commerce excluded the financial statements of 

Bionic Seafood Exports Ltd. (“Bionic”) because Bionic 

earned no profit during the period of review. In the Final 

Results, Commerce also acknowledged that its practice of 

using unprofitable companies’ financial statements had 

been inconsistent in prior administrative reviews of 
5 AD HOC SHRIMP v. US

antidumping duty orders. It therefore clarified its 

intention to disregard financial ratios of unprofitable 

companies when there are financial statements of other 

surrogate companies that have earned a positive profit on 

the record. Commerce ultimately assigned a zero antidumping margin to the sole mandatory respondent in the 

administrative review, Vietnam Fish One Co., Ltd. 

On October 13, 2007, Ad Hoc, a committee of domestic 

producers and processors of warmwater shrimp, filed a 

complaint in the Court of International Trade challenging 

two aspects of the final result: (1) the decision to value 

shrimp based on the surrogate value from the NACA 

Survey data rather than from the Apex data; and (2) the 

decision to exclude Bionic’s financial statements in calculating the surrogate financial ratios. On January 11, 

2008, Grobest & I-Mei Industrial (Vietnam) Co., Ltd. 

(“Grobest”), a party to an accompanying shipper review, 

intervened as a defendant. On April 24, 2008, Ad Hoc 

filed a motion for judgment upon the agency record. 

On August 12, 2009, the Court of International Trade 

denied the motion and dismissed the action without 

reaching the merits of Ad Hoc’s claims. Ad Hoc had been 

granted leave to intervene in a judicial review of the 

second administrative review of the underlying antidumping duty order (covering entries from February 1, 2006 to 

January 31, 2007) in which Ad Hoc again challenged 

Commerce’s reliance on the NACA Survey data. In dismissing the present action without reaching the merits, 

the trial court stated that “it seems safe to assume that 

that [the NACA Survey data] issue will entail multipartite litigation in the [later] consolidated case.” Ad Hoc 

Shrimp Trade Action Comm., 31 I.T.R.D. (BNA) 1855. 

The trial court did not address Ad Hoc’s claim regarding 

the exclusion of Bionic’s financial statements. Ad Hoc 
AD HOC SHRIMP v. US 6

appeals the decision to dismiss the case. This court has 

jurisdiction under 28 U.S.C. § 1295(a)(5). 

III 

A 

This court reviews Commerce’s antidumping decisions 

using the same standard of review used by the Court of 

International Trade. Ningbo, 580 F.3d at 1254. This 

court upholds Commerce’s decisions unless they are 

“unsupported by substantial evidence on the record, or 

otherwise not in accordance with law.” Id.; 19 U.S.C. 

§ 1516a(b)(1)(B)(i). “Substantial evidence is more than a 

mere scintilla and such relevant evidence as a reasonable 

mind might accept as adequate to support a conclusion.” 

Ningbo, 580 F.3d at 1254 (internal quotation marks 

omitted). 

B 

“Questions may occur which we would gladly avoid; 

but we cannot avoid them. All we can do is, to exercise 

our best judgment, and conscientiously to perform our 

duty.” Cohens v. Virginia, 19 U.S. 264, 404 (1821). 

Federal courts do not have the authority to decline to 

exercise jurisdiction conferred by the statute. See New 

Orleans Pub. Serv., Inc. v. Council of New Orleans, 491 

U.S. 350, 358 (1989) (“[F]ederal courts lack the authority 

to abstain from the exercise of jurisdiction that has been 

conferred[.]”). The Court of International Trade, just like 

any other federal court, must address the issues within its 

jurisdiction. Specifically, the Court of International Trade 

“has expertise in addressing antidumping issues and 

deals on a daily basis with the practical aspects of trade 

practice.” Int’l Trading Co. v. United States, 281 F.3d 

1268, 1274 (Fed. Cir. 2002). The trial court must therefore use its expertise to resolve the parties’ disputes 
7 AD HOC SHRIMP v. US

regardless of any complications or time-consuming processes. 

Specifically, the Court of International Trade cannot 

dismiss a complaint merely because one of the issues 

raised in the complaint is also present in a subsequent 

administrative review of the same antidumping duty 

order and could be addressed in judicial review of that 

proceeding. Each administrative review covers a different 

period of time and different product entries. Therefore, 

the trial court incorrectly assumed that the later litigation regarding the second administrative review will 

provide Ad Hoc with relief relating to the first administrative review. By dismissing the complaint, the trial 

court did not provide a decision on the merits of Ad Hoc’s 

claims. 

C 

This court declines to remand the case to the Court of 

International Trade to decide the case on the merits. This 

court’s review of the Court of International Trade’s decision is plenary and the merits decision must be made on 

the basis of Commerce’s record. See Ningbo, 580 F.3d at 

1254. Here, the agency record is extensive and includes 

comprehensive briefing on the merits of all disputed 

issues. Likewise, on appeal to this court, the parties 

extensively argued the merits of Ad Hoc’s two claims. For 

the reasons discussed below, the Court of International 

Trade would have no basis on remand for doing anything 

other than accepting Commerce’s decision. Remanding 

the case would unnecessarily prolong the litigation and 

uncertainty in the marketplace. Although this court 

usually gives “great weight to the informed opinion of the 

[Court of International Trade], and it is nearly always the 

starting point of our analysis,” Ningbo, 580 F.3d at 1253, 

in the interest of judicial economy, this court will exercise 
AD HOC SHRIMP v. US 8

its duty of reviewing this case on the exact same record 

with the exact same legal standards that govern the trial 

court. This court will address the merits of this case at 

this juncture on appeal. 

Commerce has broad discretion to determine the best 

available information for an antidumpting review. See

Nation Ford Chem., 166 F.3d at 1377. Commerce found 

the NACA Survey data to be “the best available information” because it presented “a broad market average, 

specific to the input in question, exactly contemporaneous 

with the [period of review], and reliable.” (J.A. 45). The 

NACA Survey data drew data from actual records of sales 

maintained by nearly 200 Bangladeshi shrimp industry 

stakeholders, including eight shrimp processors from five 

major shrimp producing districts of Bangladesh. The 

NACA Survey data included Rupsha Fish and Allied Co., 

Ltd., which are two of the largest Bangladeshi shrimp 

exporters to the United States. The NACA Survey corroborated the collected sales data with general price 

information obtained from the Bangladeshi Department 

of Fisheries and another exporter. Although Ad Hoc 

criticizes that data as unaudited, no statute or regulation 

requires Commerce to use audited data in calculating the 

surrogate values. In any event, NACA relied on actual 

transaction data and validated the general accuracy of the 

collected data with independent sources. Thus, Commerce had ample reason to rely on the accuracy and 

comprehensiveness of the NACA Survey data. 

Ad Hoc argues that the NACA Survey data is incomplete because it lacks specific price information for two of 

the ten shrimp sizes examined in the review. Commerce 

accounted for these two sizes by averaging percentage 

decreases in value for the other eight sizes to extrapolate 

the values for the two sizes at issue. The Court of International Trade has previously sustained Commerce’s 
9 AD HOC SHRIMP v. US

determinations based on extrapolations drawn from 

reliable data. See Zhejiang Native Produce & Animal ByProducts Imp. & Exp. Grp. v. United States, 2008 WL 

2410210, at *9 (Ct. Int’l Trade June 16, 2008). Ad Hoc 

provides no reason to distrust this extrapolation method 

in this case. 

The NACA Survey data contains a broad market average of product-specific data that are contemporaneous 

with the period of review. Commerce has explained that 

it “prefers, whenever possible, to use countrywide data, 

and only resorts to company-specific (or regional) information when countrywide data are not available.” (J.A. 44). 

In accordance with its policy, Commerce chose the NACA 

Survey data over the Apex data, which is specific to one 

company. Commerce’s policy on using countrywide data, 

whenever available, is reasonable, as such data gives a 

broad overview of the relevant market. Ad Hoc does not 

identify any reasoning or evidence to support its contention that the NACA Survey data is unreliable or incomplete. For this reason, substantial evidence supports 

Commerce’s finding that the NACA Survey data presented the best available information. 

Commerce also excluded Bionic’s financial statements 

from the calculation of the surrogate financial ratios 

because Bionic did not make any profit during the period 

of review. Commerce has always disregarded 

unprofitable companies’ profits in calculating the average 

profit amount in the surrogate market. However, 

Commerce has inconsistently used the same companies’ 

expenses in calculating the average overhead and selling, 

general, and administrative expenses. In the present 

review, Commerce articulated its preference for profitable 

companies’ financial statements for determining both 

surrogate amounts of profits and expenses. Commerce 

reasoned that using unprofitable companies’ financial 
AD HOC SHRIMP v. US 10

statements to calculate expenses does “not account for the 

interconnectedness of the overhead and [selling, general, 

and administrative expenses] with the zero profit.” (J.A. 

50). A company’s profit amount is a function of its total 

expenses and thus, is intrinsically tied to the company’s 

expenses and its financial ratio. Commerce therefore 

reasonably preferred to use financial statements from 

profitable companies when available. Substantial evidence supports Commerce’s decision to exclude Bionic’s 

financial statements in calculating the surrogate financial 

ratios, in favor of using financial statements from the two 

profitable surrogate companies. 

IV 

The Court of International Trade erred by dismissing 

the case without reaching the merits of Ad Hoc’s claims. 

Substantial evidence supports Commerce’s decisions to 

calculate the surrogate shrimp value based on the NACA 

Survey data and to exclude Bionic’s financial statements 

in calculating the surrogate expenses. Accordingly, this 

court reverses the trial court’s decision to dismiss the 

action and remands with instructions to enter judgment 

against Ad Hoc. 

REVERSED AND REMANDED 

COSTS

Costs to Ad Hoc.