Ad Hoc Shrimp Trade Action Committee v. U.S.

• Decision Date: 15 February 2008
• Docket Number: No. 2007-4230.,2007-4230.
• Citation: 515 F.3d 1372
• Parties: AD HOC SHRIMP TRADE ACTION COMMITTEE, Versaggi Shrimp Corporation, and Indian Ridge Shrimp Company, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee, and Eastern Fish Company, Inc., Defendant-Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

515 F.3d 1372

AD HOC SHRIMP TRADE ACTION COMMITTEE, Versaggi Shrimp Corporation, and Indian Ridge Shrimp Company, Plaintiffs-Appellants, v. UNITED STATES, Defendant-Appellee, and Eastern Fish Company, Inc., Defendant-Appellee.

No. 2007-4230.

United States Court of Appeals, Federal Circuit.

February 15, 2008.

Bradford L. Ward, Dewey Ballantine LLP, of Washington, DC, argued for plaintiffs-appellants. With him on the brief were Rory F. Quirk, Mayur R. Patel, and Lisa W. Wang.

Stephen C. Tosini, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. With him on the brief were Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director.

Michael J. Coursey, Kelley Drye Collier Shannon, of Washington, DC, argued for defendant-appellee Eastern Fish Company, Inc. Of counsel was Mary T. Staley.

Before NEWMAN, Circuit Judge, ARCHER, Senior Circuit Judge, and GAJARSA, Circuit Judge.

GAJARSA, Circuit Judge.

This is a trade case dealing with the scope of an antidumping investigation and the trial court's authority to review the final scope determination. Plaintiffs-Appellants Ad Hoc Shrimp Trade Action Committee, Versaggi Shrimp Corporation, and Indian Ridge Shrimp Co. (collectively plaintiffs or "AHSTAC") appeal a final order and decision of the Court of International Trade, Ad Hoc Shrimp Trade Action Comm. v. United States, 473 F.Supp.2d 1336 (Ct. Int'l Trade 2007) ("AHSTAC"), which sua sponte dismissed plaintiffs' challenge to the Department of Commerce ("Commerce") determination to exclude "dusted shrimp" from the scope of its antidumping investigation of various frozen and canned shrimp products. The trial court concluded that dismissal was warranted because it had no power to order the relief requested. Commerce, although a defendant in this action, joins plaintiffs in arguing that the trial court erred in dismissing the action and has taken the unusual position of asking this court to grant the relief requested by plaintiffs—a remand to the trial court to determine on the merits whether Commerce erred in excluding dusted shrimp from its final determination. We agree with plaintiffs and Commerce. While we affirm the trial court's holding that it was without power to order Commerce to amend the antidumping order itself, we reverse its holding that it did not have power to review Commerce's final scope determination.

I.

A.

Importers of goods into the United States are subject to antidumping duties if (1) Commerce determines that "a class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value;" and (2) the International Trade Commission ("ITC") determines that a domestic industry will be harmed "by reason of imports of that merchandise, or by reason of sales (or the likelihood of sales) of that merchandise for importation." 19 U.S.C. § 1673 (emphasis added); see also Viraj Group v. United States, 476 F.3d 1349, 1351 (Fed.Cir.2007).

Under the statute, a multi-step process involving actions by both Commerce and the ITC must be completed before an antidumping order can issue. In most cases the process begins when an interested party files a petition with Commerce and the ITC requesting the imposition of antidumping duties for a certain class of merchandise. 19 U.S.C. 1673a. Commerce will then initiate an "antidumping duty investigation." Id. Within 45 days (barring exceptional circumstances) of Commerce's initiation of the investigation, the ITC is required to issue a preliminary determination of whether there is a "reasonable indication" that an industry in the United States is materially injured or threatened with injury by reason of imports of the "subject merchandise."¹ Id. 1673b(a). If the ITC makes a negative determination (i.e., finds no injury), the investigation is terminated. Id.

If the ITC makes an affirmative determination, then Commerce must issue a preliminary determination of whether there is "a reasonable basis to believe or suspect that the merchandise is being sold, or is likely to be sold, at less than fair value." Id. § 1673b(b). As part of this preliminary determination, Commerce will also make a preliminary determination of the scope of the investigation. Within 75 days after its preliminary determination, Commerce must issue a "final determination of whether the subject merchandise is being, or is likely to be, sold in the United States at less than its fair value." Id. § 1673d(a)(1). If Commerce determines that goods within the proper scope of the investigation are being or are likely to be sold at less than fair value, Commerce forwards its determination and "all information upon which such determination was based" to the ITC. Id. § 1673d(c). The ITC must then make a final determination of whether United States industry is materially threatened or injured by the importation of "the merchandise with respect to which [Commerce] has made an affirmative determination." Id. § 1673d(b). If Commerce and the ITC both issue final affirmative determinations, then Commerce "shall issue" an antidumping order. Id. §§ 1673d(c)(3), 1673e(a). If either of the final determinations is negative, the investigation is terminated. Id. § 1673d(c).

Judicial review of the antidumping procedure is available in the Court of International Trade. In particular, the statute provides that within. 30 days of publication in the Federal Register, an interested party can commence an action in the Court of International Trade for a review of "[a] final negative determination by [Commerce] or the [ITC] under section 705 or 735 of this Act [19 U.S.C. § 1671d or 1673d], 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), 1516a(a)(2)(A)(i)(I) (emphasis added).

B.

The antidumping proceedings at issue in this case proceeded as required by statute. On December 31, 2003, AHSTAC, a coalition of members of the domestic shrimp industry, filed an antidumping duty petition concerning frozen and canned warmwater shrimp from Brazil, Ecuador, India, Thailand, China, and Vietnam. In response, Commerce announced that it was initiating an antidumping investigation. 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 public of Vietnam, 69 Fed.Reg. 3876 (Jan. 27, 2004) ("Initiation Notice"). In the Initiation Notice, Commerce announced that it was preliminarily defining the scope of the investigation to include "products which are processed from warmwater shrimp and prawns through either freezing or canning and which are sold in any count size," but was excluding certain categories of shrimp including breaded shrimp and prawns, fresh shrimp, and dried shrimp. Id. at 3877. Commerce set aside a period of time, however, for parties to "raise issues regarding product coverage" prior to the issuance of the preliminary determinations. Id.

In February 2004 the ITC issued its preliminary determination that there was a reasonable indication that United States industry was materially injured by reason of imports of certain frozen or canned warmwater shrimp and prawns from the countries named in the petition. Certain Frozen or Canned Warmwater Shrimp and Prawns from Brazil, China, Ecuador, India, Thailand, and Vietnam, USITC Pub. 3673 (Feb.2004).

Meanwhile, in response to Commerce's initial request for comments regarding product coverage, various foreign producers, including Defendant Eastern Fish Company, Inc. ("Eastern Fish"), submitted briefs to Commerce arguing that "battered shrimp" and "dusted shrimp" should be excluded from the scope of the investigation. According to Eastern Fish and the other foreign producers, "dusted shrimp," i.e., shrimp coated with a light layer of flour, is only used as an intermediate to making the already excluded breaded shrimp and, therefore, should similarly be excluded.

After considering the interested parties' comments, Commerce issued its preliminary determinations finding that certain frozen and canned warmwater shrimp from the countries under investigation were being sold in the United States at less than fair value. Notice of Preliminary Determination of Sales at Less than Fair Value, Partial Affirmative Preliminary Determination of Critical Circumstances and Postponement of Final Determination, 69 Fed.Reg. 42654 (July 16, 2004) ("Commerce Preliminary Determination").² In its preliminary determinations, Commerce excluded "battered shrimp" from the scope of the investigation under the exclusion for "breaded shrimp" but did not exclude "dusted shrimp." U.S. Dep't of Commerce Memorandum, Antidumping Investigation on Certain Frozen and Canned Warmwarter Shrimp from Brazil, Ecuador, India, Thailand, the People's Republic of China and the Socialist Republic of Vietnam: Scope Clarification: Dusted Shrimp and Battered Shrimp 18 (July 2, 2004) ("July Scope Memorandum"). Commerce found, however, that there was "sufficient evidence for the Department to be prepared to exclude [dusted shrimp] from the scope of the order provided an appropriate description [could] be developed." Commerce Preliminary Determination, 69 Fed.Reg. at 42660; see also July Scope Memorandum at 18. In response, certain importers proposed a definition of "dusted shrimp" based on various physical requirements, and Commerce determined that this definition provided a workable definition that would not lead to circumvention of the antidumping order. U.S. Dep't of Commerce Memorandum, Antidumping Investigation on Certain Frozen and Canned Warmwater Shrimp from Brazil, Ecuador, India, Thailand, the People's Republic of China and the Socialist Republic of Vietnam: Scope Clarification: Dusted Shrimp and Battered...