Ad Hoc Shrimp Trade Action Comm. v. United States

• Decision Date: 14 April 2010
• Docket Number: Court No. 05-00192.,Slip Op. 10-39.
• Citation: 703 F.Supp.2d 1330
• Parties: AD HOC SHRIMP TRADE ACTION COMMITTEE, Versaggi Shrimp Corporation, and Indian Ridge Shrimp Company, Plaintiffs,v.UNITED STATES, Defendant,andEastern Fish Company, Inc., Defendant-Intervenor.
• Court: U.S. Court of International Trade

703 F.Supp.2d 1330

International Trade.

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

Slip Op. 10-39.

Court No. 05-00192.

United States Court of

April 14, 2010.

Picard Kentz & Rowe LLP (Nathaniel M. Rickard and Andrew W. Kentz) for plaintiffs Ad Hoc Shrimp Trade Action Committee and Versaggi Shrimp Corporation.

Stewart and Stewart (Geert M. De Prest, Elizabeth J. Drake, and Terence P. Stewart) and Leake & Andersson, LLP (Edward T. Hayes), Washington, DC, for plaintiff Indian Ridge Shrimp Company.

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); Mykhaylo A. Gryzlov, 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), Washington, DC, for defendant-intervenor.

OPINION

STANCEU, Judge.

This matter arose from plaintiffs' contesting six amended final “less-than-fair-value” (“LTFV”) determinations that the International Trade Administration, United States Department of Commerce (“Commerce” or the “Department”) issued on imports of certain frozen warmwater shrimp (the “subject merchandise”). In Ad Hoc Shrimp Trade Action Committee v. United States, 33 CIT ----, ----, 637 F.Supp.2d 1166, 1182 (2009) (“ Ad Hoc III ”), the court ordered Commerce to redetermine the scope of its amended final LTFV determinations with respect to dusted shrimp, a product consisting of flour-coated frozen shrimp that the Department had excluded. The court held that Commerce did not state reasoning adequate to support the dusted shrimp exclusion and that, as a result, the LTFV determinations were contrary to law. Id. at ----, 637 F.Supp.2d at 1181. “Commerce failed to consider, and failed to resolve, the question of whether dusted shrimp is within the proposed scope of the antidumping investigation or investigations sought by the Petitions.” Id.

In the redetermination issued by Commerce pursuant to the court's remand order, Commerce concluded that it had erred in excluding dusted shrimp from the scope of the LTFV determinations and drafted amended scope language to include the product. Final Results of Redetermination pursuant to Ct. Remand 18, App. 1 (“Redetermination”). Plaintiffs Ad Hoc Shrimp Trade Action Committee (“AHSTAC”), Versaggi Shrimp Corporation (“Versaggi”), and Indian Ridge Shrimp Company (“Indian Ridge”) (collectively “plaintiffs” or “petitioners”) urge the court to affirm the Redetermination. Pls.' Comments Regarding Final Results of Redetermination pursuant to Ct. Remand 1 (“AHSTAC & Versaggi Comments”); Comments of Indian Ridge Shrimp Co. Regarding the Remand Results 2 (“Indian Ridge Comments”). Defendant-intervenor Eastern Fish Company, Inc. (“Eastern Fish”) urges the court to reject the Redetermination as contrary to law. Def.-Intervenor's Comments Regarding Final Results of Redetermination pursuant to Ct. Remand 15-16 (“Def.-Intervenor Comments”). The arguments of Eastern Fish fail to persuade the court. Because Commerce complied with the remand order in Ad Hoc III and lawfully redetermined the scope of the investigations, the court will affirm the Redetermination through the entry of judgment.

I. Background

The background of this case is presented in the court's opinions in Ad Hoc Shrimp Trade Action Committee v. United States, 31 CIT 102, 103-09, 473 F.Supp.2d 1336, 1337-42 (2007) (“ Ad Hoc I ”), and Ad Hoc III, 33 CIT at ----, 637 F.Supp.2d at 1168-74, which the court recounts in part below and supplements as necessary to include developments occurring since Ad Hoc III was decided on July 1, 2009.

Plaintiffs 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 from each of the following countries: Brazil, Ecuador, India, the People's Republic of China, the Socialist Republic of Vietnam, and Thailand.¹ See, e.g., 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). Each of the final and amended final LTFV determinations excluded dusted shrimp from the scope of the investigation, and Commerce accordingly excluded dusted shrimp from the scope of each of the six antidumping duty orders. Id. at 5147.²

In this litigation, plaintiffs, who were petitioners in the underlying antidumping proceedings, sought as relief a remand directing Commerce to amend the antidumping duty orders to include dusted shrimp. Ad Hoc I, 31 CIT at 112-14, 473 F.Supp.2d. at 1345-46. The Court of International Trade dismissed the consolidated action, concluding that the requested relief was unavailable because the final affirmative injury determination of the U.S. International Trade Commission (“ITC” or the “Commission”), which plaintiffs did not contest, had not included dusted shrimp. Id. at 112-14, 116, 473 F.Supp.2d. at 1345-46, 1348. The Court of Appeals for the Federal Circuit (“Court of Appeals”), affirming in part and reversing in part, held that the Court of International Trade, although correctly concluding that the requested relief of a remand to amend the antidumping duty orders was unavailable because of the absence of a final Commission injury determination on dusted shrimp, erred in dismissing the case. Ad Hoc Shrimp Trade Action Comm. v. United States, 515 F.3d 1372, 1375 (Fed.Cir.2008) (“ Ad Hoc II ”). The Court of Appeals concluded that plaintiffs had sought, in addition to amendment of the antidumping duty orders, a declaratory judgment that Commerce acted unlawfully in excluding dusted shrimp from the scope of the antidumping investigations. Id. at 1381-82. The Court of Appeals held that the lack of judicial authority to order a review of the Commission's injury determination did not preclude adjudication on the merits of plaintiffs' claim contesting Commerce's final amended LTFV determinations. Id. at 1382-83. The Court of Appeals vacated the dismissal and remanded the action, directing the Court of International Trade to “address the merits of AHSTAC's claim that ‘dusted shrimp’ should [not] be excluded from the scope of Commerce's final determination.” Id. at 1385.

In Ad Hoc III, the Court of International Trade concluded “that the Department's decisions to exclude dusted shrimp from the scope of the final LTFV determinations were contrary to law because they were unsupported by any valid reason.” Ad Hoc III, 33 CIT at ----, 637 F.Supp.2d at 1181. The court explained that

Commerce failed to consider, and failed to resolve, the question of whether dusted shrimp is within the proposed scope of the antidumping investigation or investigations sought by the Petitions. Although Commerce has discretion to make exclusions from the scope, even when doing so appears to be contrary to the proposed scope as set forth in a petition, it must exercise this authority reasonably. The three reasons set forth in the Scope Clarification Memorandum in support of the exclusion, for the reasons discussed in this Opinion and Order, do not suffice.

Id. The court ordered the Department to reconsider and redetermine the scope of the final and amended final LTFV determinations with respect to the issue of the inclusion of dusted shrimp. Id. at 1182.

After obtaining comments on a draft remand redetermination, Commerce prepared a final version, which it filed on October 29, 2009, and also filed an accompanying administrative record on November 19, 2009. AHSTAC, Versaggi, and Indian Ridge filed comments with the court on November 30, 2009 urging the court to affirm the Redetermination. AHSTAC & Versaggi Comments 1; Indian Ridge Comments 2. Eastern Fish filed comments with the court on December 15, 2009, arguing that the Redetermination must be set aside as contrary to law and seeking an additional remand. Def.-Intervenor Comments 15-16.

II. Discussion

In the Redetermination, Commerce determined that its earlier exclusion of dusted shrimp from the scope of the LTFV determinations was in error. Redetermination 18. After considering the proposed scope language in the petitions filed by the domestic industry to initiate the LTFV investigations (“Petitions”), which included food preparations, Commerce determined that “dusted shrimp constitutes a food preparation within the meaning of the scope of the original investigations.” Id. at 16. Commerce concluded that it “employed the correct analytical framework in its draft remand redetermination in determining that dusted shrimp would be considered food preparations (which are included in the plain language of the scope), and that dusted shrimp would not fall under the breaded shrimp exclusion listed in the scope language.” Id. at 13. Commerce concluded that dusted shrimp should be added to the scope as set forth in the LTFV determinations and included “Final Scope Language on Remand” to be used for this purpose. Id. at 18, App. 1.

In the Redetermination, Commerce also “analyzed the impact of finding dusted shrimp to be within the scope on our antidumping duty calculations.” Id. at 18. Commerce concluded that no change in the calculations for any of the six LTFV determinations would be needed. Id. “Out of all investigations, only one respondent, the Allied Pacific Group in the investigation covering the People's Republic of China, reported sales of dusted shrimp during the period of the investigation, and these sales comprised a very small percentage of its total sales.” Id. Commerce also found that it inadvertently had included the dusted shrimp sales of Allied Pacific Group in the margin calculation for that respondent...