Shrimp Trade Action Committee v. U.S.
| Decision Date | 23 January 2007 |
| Docket Number | Slip Op. 07-11. Court No. 05-00192. |
| Citation | 473 F.Supp.2d 1336 |
| Parties | Ad hoc SHRIMP TRADE ACTION COMMITTEE, Versaggi Shrimp Corp. and Indian Ridge Shrimp Co., Plaintiffs, v. UNITED STATES, Defendant, and Eastern Fish Company, Inc., Defendant-Intervenor. |
| Court | U.S. Court of International Trade |
Dewey Ballantine LLP, Washington, DC (Bradford L. Ward, Rory F. Quirk and Mayur R. Patel) for plaintiff.
Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Patricia M. McCarthy, Assistant. Director, Commercial Litigation Branch, Civil Division, United States Department of Justice; Christine J. Sohar, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.
Kelley Drye & Warren LLP, Washington, DC (Michael J. Coursey and Mary T. Staley) for defendant-intervenor.
Plaintiffs Ad Hoc Shrimp Trade Action Committee, Versaggi Shrimp Corp., and Indian Ridge Shrimp Co. ("plaintiffs") challenge six amended final antidumping "less than fair value" determinations issued on February 1, 2005 by the United States Department of Commerce ("Commerce") pertaining to imported frozen shrimp. They allege that Commerce improperly excluded a product known as "dusted shrimp," which is frozen shrimp that is coated with flour, from the scope of each of the investigations resulting in the amended final determinations. Plaintiffs, as the petitioners in the administrative proceedings, had sought antidumping duty investigations on a proposed class or kind of imported merchandise that was sufficiently broad to include dusted shrimp and, during those proceedings, specifically had urged Commerce to include dusted shrimp within the scope of the investigations.
Because of the exclusion of dusted shrimp from the scope, the antidumping duty orders that resulted from the investigations, which together impose antidumping duties on frozen warmwater shrimp from Brazil, China, Ecuador, India, Thailand and Vietnam (collectively "the exporting countries"), do not apply to dusted shrimp. Plaintiffs move under USCIT R. 56.2 for judgment on the agency record, seeking a remand to Commerce under which Commerce would be directed to reissue its less than fair value determinations and amend the resulting antidumping duty orders to include dusted shrimp within the scope of the investigations and the orders. Because, plaintiffs, although having brought a timely challenge to the amended final less than fair value determinations of Commerce, failed to challenge the final affirmative injury determination of the U.S. International Trade Commission (the "Commission") on which the antidumping duty orders on frozen shrimp were based, the court denies plaintiffs' motion for judgment on the agency record and dismisses this action.
According to the findings of Commerce in the antidumping duty investigations, the coating of flour present on dusted shrimp facilitates further processing, such as breading or battering, in the production of prepared frozen shrimp products. As discussed in detail below, Commerce included dusted shrimp within the scope of the investigations upon issuing its preliminary less than fair 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 which petitions they sought the imposition of antidumping duties, in accordance with the procedures of 19 U.S.C. § 1673 et seq., on imports of certain frozen and canned warmwater shrimp from the exporting countries. The petitions alleged that these imports are, or are likely to be, sold in the United States at less than fair value, and are materially injuring or are 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 investigation 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 threatened with material injury by reason of the allegedly unfairly traded imports of shrimp. Certain Frozen and Canned Warmwater Shrimp and Prawns 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 investigations on January 27, 2004 ("Notice of Initiation"). Notice of Initiation of Antidumping Duty Investigations: Certain Frozen and Canned Warmwater Shrimp From Brazil, Ecuador, India, Thailand, the People's Republic of China and the Socialist Republic of Vietnam, 69 Fed.Reg. 3876 (Jan. 27, 2004) ("Notice of Initiation"). In the Notice of Initiation, Commerce described the scope of the investigations according to the, proposed class or kind of merchandise as defined in the petitions. This proposed scope language encompassed shrimp products that had undergone various levels of processing, including shrimp that had been prepared by the addition of marinade, spices or sauces, but excluded breaded shrimp. The petitioners' proposed scope language, as stated in the petitions and as reflected in the Notice of Initiation, was sufficiently broad to include dusted shrimp.1
In the Notice of Initiation, Commerce set aside a brief period of time for the parties to raise issues pertaining to the scope of the investigations. 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 included within that scope. Defendant-intervenor Eastern Fish Company, Inc. requested that dusted shrimp be excluded from the scope of the investigations.
During July and August 2004, Commerce published notices of its preliminary determinations that certain frozen and canned warmwater shrimp from each of the exporting countries are being, or are likely to be, sold in the United States at less than fair value. Although 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 excluded from the scope of the investigations, stating as follows:
[W]hile substantial evidence exists to consider battered shrimp to fall within the meaning of the breaded shrimp exclusion identified in the scope of these proceedings, there is insufficient evidence to consider that shrimp which has been dusted falls within the meaning of `breaded' shrimp. However, there is sufficient evidence for the Department to be prepared to exclude this merchandise from the scope of the order provided an appropriate description can be developed. To that end, along with the previously solicited comments regarding breaded and battered shrimp, the Department solicits comments from interested parties which enumerate and describe a clear, administrable definition of dusted shrimp.
Notice of Preliminary Determination of Sales at Less Than Fair Value, Negative Preliminary Determination of Critical Circumstances and Postponement of Final Determination: Certain 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 Fish Company, Inc. 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 ( ), Ex. 15 (). Plaintiffs did not provide Commerce 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 investigation. Id. Ex. 25 (). Plaintiffs argued that a. clear administrable 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 ().
Commerce held a scope hearing on November 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 . In one of the memoranda, Commerce concluded that "dusted shrimp is comprised of components that create clear physical characteristics that separate dusted shrimp from subject merchandise." Id. Ex. 14 at 23. Commerce found that the definition of dusting does not encourage 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 fatal to the quality of the product." Id. Ex. 14 at 25. Furthermore, "the removal of the dusting layer would compromise the quality of the product, such as its taste, appearance, moisture content and nutritional content." Id. Ex. 14 at 25. Commerce also excluded from the scope "battered shrimp," witch it described as a shrimp-based product that "when dusted in accordance with the definition of dusting, [is] coated with a wet viscous layer containing egg and/or milk, and par-fried." Id. Ex. 14 at 28.
In its final determinations, in which it found that certain frozen and canned warmwater shrimp from the exporting countries are...
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Ad Hoc Shrimp Trade Action Committee v. U.S.
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