637 F.Supp.2d 1166 (CIT 2009), 05-00192, Ad Hoc Shrimp Trade Action Committee v. United States

Docket Nº:Court 05-00192.
Citation:637 F.Supp.2d 1166
Opinion Judge:STANCEU, Judge.
Party Name:AD HOC SHRIMP TRADE ACTION COMMITTEE, Versaggi Shrimp Corporation, and Indian Ridge Shrimp Company, Plaintiffs, v. UNITED STATES, Defendant, and Eastern Fish Company, Inc., Defendant-Intervenor. Slip Op. 09-69.
Attorney:Dewey Ballantine LLP, Washington, DC (Bradford L. Ward, Linda A. Andros, Rory F. Quirk, and Mayur R. Patel) for plaintiffs. Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States De...
Case Date:July 01, 2009
Court:Court of International Trade
 
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637 F.Supp.2d 1166 (CIT 2009)

AD HOC SHRIMP TRADE ACTION COMMITTEE, Versaggi Shrimp Corporation, and Indian Ridge Shrimp Company, Plaintiffs,

v.

UNITED STATES, Defendant,

and

Eastern Fish Company, Inc., Defendant-Intervenor.

Slip Op. 09-69.

Court No. 05-00192.

United States Court of International Trade.

July 1, 2009

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[Copyrighted Material Omitted]

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Dewey Ballantine LLP, Washington, DC (Bradford L. Ward, Linda A. Andros, Rory F. Quirk, and Mayur R. Patel) for plaintiffs.

Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, (Stephen C. Tosini); Christine J. Sohar and Peter J. Kaldes, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of counsel, for defendant.

Kelley Drye & Warren LLP (Michael J. Coursey and Mary T. Staley) for defendant-intervenor.

OPINION AND ORDER

STANCEU, Judge.

On remand from the United States Court of Appeals for the Federal Circuit (" Court of Appeals" ), the court determines that the International Trade Administration (" ITA" ), United States Department of Commerce (" Commerce" or the " Department" ) erred when it excluded from the scope of its antidumping duty investigations, and resulting " less-than-fair-value" (" LTFV" ) determinations, an imported product known as " dusted shrimp," which is a frozen product consisting of shrimp coated with flour. The court remands the matter to Commerce with instructions to reconsider its decisions to exclude dusted shrimp from the scope of the amended final LTFV determinations and redetermine the scope of those determinations in accordance with this Opinion and Order.

I. BACKGROUND

Plaintiffs Ad Hoc Shrimp Trade Action Committee (" AHSTAC" ), Versaggi Shrimp Corporation (" Versaggi" ), and Indian Ridge Shrimp Company (" Indian Ridge" ) (collectively " plaintiffs" or " petitioners" ) brought multiple actions, later consolidated, to contest six amended final affirmative LTFV antidumping determinations that Commerce issued in 2005 on certain imported frozen warmwater shrimp (the " subject merchandise" ) from each of the following countries: Brazil, Ecuador, India, the People's Republic of China (" China" or the " PRC" ), the Socialist Republic of Vietnam (" Vietnam" ), and Thailand (collectively, the " Exporting Countries" ).1 See, e.g.,

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Notice of Am. Final Determination of Sales at Less Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Thailand, 70 Fed.Reg. 5145 (Feb. 1, 2005) (" Thailand Am. Final Determination & Order " ).2 Each of the final and amended final LTFV determinations excluded dusted shrimp from the scope of the investigation, and as a result dusted shrimp was excluded from the scope of each of the six antidumping duty orders.

A. Initiation of the Antidumping Duty Investigations

On December 31, 2003, plaintiff AHSTAC filed petitions (" Petitions" ) with Commerce and the United States International Trade Commission (" Commission" or " ITC" ) seeking the imposition of antidumping duties on a proposed class or kind of imports consisting of various frozen and canned warmwater shrimp from Brazil, Ecuador, India, China, Vietnam, and Thailand in accordance with the procedures of 19 U.S.C. §§ 1673 and 1673a(b) (2000). See, e.g., Letter from Dewey Ballantine LLP to Sec'y of Commerce & Sec'y of Int'l Trade Comm'n (Dec. 31, 2003) (Admin.R.Doc. No. 2) (" Thailand Antidumping Petition " ). On February 4, 2004, plaintiffs Versaggi and Indian Ridge joined AHSTAC in the Petitions. Letter from Dewey Ballantine LLP to Sec'y of Commerce & Sec'y of Int'l Trade Comm'n 2 (Feb. 4, 2004) (Admin.R. Doc. No. 48); see, e.g., Notice of Prelim. Determination of Sales at Less Than Fair Value, Postponement of Final Determination, and Negative Critical Circumstances Determination: Certain Frozen and Canned Warmwater Shrimp From Thailand, 69 Fed.Reg. 47,100, 47,100 n. 1 (Aug. 4, 2004) (" Thailand Prelim. Determination " ).3

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Following receipt of the Petitions, Commerce initiated antidumping duty investigations under 19 U.S.C. § 1673a(b)(1). 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, 3877 (Jan. 27, 2004) (" Notice of Initiation " ). Commerce published an initiation notice, which preliminarily defined the scope of its investigations to reflect plaintiffs' proposal in the Petitions.4 Id. In March 2004, the Commission issued its preliminary injury determination pursuant to 19 U.S.C. § 1673b(a) (2000), finding " a reasonable indication that an industry in the United States is materially injured by reason of imports from [the Exporting Countries] of certain frozen or canned warmwater shrimp and prawns" in the same scope of investigation. Certain Frozen or Canned Warmwater Shrimp and Prawns from Brazil, China, Ecuador, India, Thailand, and Vietnam, 69 Fed.Reg. 9842, 9842 (Mar. 2, 2004). Neither the Department's initiation notice nor the Commission's preliminary determination mentioned the term " dusted shrimp" or specifically referred to dusted shrimp as a product within the scope of the investigations.

B. The Scope Exclusion for Dusted Shrimp

Following the initiation of the antidumping duty investigations, Ocean Duke Corporation (" Ocean Duke" ), an importer and wholesaler of the subject merchandise, with the support of Rubicon Resources LLP (" Rubicon" ), an importer of the subject merchandise, requested that Commerce exclude " dusted shrimp" from the scope of the concurrent investigations on certain frozen and canned warmwater shrimp. See, e.g., Thailand Prelim. Determination, 69 Fed.Reg. at 47,101 n. 2.5 In rebuttal scope comments, plaintiffs objected to the exclusion of dusted shrimp and battered shrimp, arguing that because Ocean Duke and Rubicon had not " sufficiently

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and publicly defined" the products for which they were requesting exclusion, Commerce should not address the request. Mem. from Dir., Office 9, Imp. Admin., to Deputy Assistant Sec'y for Imp. Admin. 7 (July 2, 2004) (Admin.R.Doc. No. 274) (" July Scope Clarification Mem. " ). Thereafter, Ocean Duke, defendant-intervenor Eastern Fish Company, Inc. (" Eastern Fish " ), and Long John Silver's, Inc. (" LJS" ) submitted additional comments arguing that dusted shrimp and battered shrimp fall within the meaning of the already-excluded " breaded shrimp." Id. at 12-14. Plaintiffs argued, however, that they had " constructed the scope definition and scope exclusions with care such that as a general rule, all warmwater shrimp and prawns were presumptively within the scope of these investigations, with the exception of a small number of carefully defined and delimited exceptions." Id. at 10.

After considering the interested parties' comments, Commerce found that " while 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." 6 Thailand Prelim. Determination, 69 Fed.Reg. at 47,102-037; see also July Scope Clarification Mem. 18. However, Commerce also found that there was " sufficient evidence for the Department to consider excluding [dusted shrimp] from the scope of these proceedings provided an appropriate description can be developed." Thailand Prelim. Determination, 69 Fed.Reg. at 47,1038; see also July Scope Clarification Mem. 18. Commerce cited concerns, raised by plaintiffs, that exclusion of dusted shrimp based on " Ocean Duke's requests, due to their lack of specificity, could invite circumvention of a subsequent

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antidumping duty order in that batter (or dust) added to the shrimp might be removed after entry." July Scope Clarification Mem. 22. Accordingly, Commerce solicited further comments from interested parties, in anticipation of its final LTFV determination, to " enumerate and describe a clear, administrable definition of dusted shrimp." Id. at 23. Commerce noted that although there was insufficient evidence to subsume dusted shrimp under the meaning of breaded shrimp, the evidence before it " strongly suggests that dusted shrimp may indeed be in the same category as breaded and battered shrimp" but it had been " unclear where the separation lies between subject merchandise and dusted shrimp." Id. at 25.

In August 2004, Commerce issued its preliminary LTFV determinations, which found that " certain frozen and canned warmwater shrimp," excluding breaded and battered shrimp, but not excluding dusted shrimp, from the Exporting Countries is being, or is likely to be, sold in the United States at LTFV and invited interested parties to comment on the preliminary LTFV determination. See, e.g., Thailand Prelim. Determination, 69 Fed.Reg. at 47,100, 47,102 & n. 6, 47,102-03.9 Eastern Fish and LJS responded by proposing a definition of dusted shrimp based on various physical requirements, as well as a testing protocol by which United States Customs and Border Protection could monitor compliance. Mem. from Senior Enforcement Coordinator, China/NME Group, to Acting Deputy Assistant Sec'y for Imp. Admin. 4-13 (Nov. 29, 2004) (Admin.R.Doc. No. 453) (" Nov. Scope Clarification Mem. " ). Plaintiffs, on the other hand, did not propose a definition for dusted shrimp. Rather, plaintiffs continued to argue that there was no clear, administrable way to define dusted shrimp and repeated their initial...

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