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 Liti-
gation Branch, Civil Division, United States Department
of Justice, of Washington, DC, argued for defendant-
appellee 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 Wash-
ington, DC, argued for defendant-appellee Grobest & I-
Mei 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 con-
sumption 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 struc-
tures. 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 ex-
penses. . . . [T]he valuation of the factors of pro-
duction shall be based on the best available
information regarding the values of such factors
in a market economy country or countries consid-
ered 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 finan-
cial 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 antidump-
ing 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 Asia-
Pacific (“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 proces-
sors, were reliable, Commerce selected the NACA Survey
data over the Apex data.
In addition, Commerce calculated the surrogate fi-
nancial 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 anti-
dumping 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 calcu-
lating 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 antidump-
ing 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 dis-
missing 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 multipar-
tite 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 there-
fore use its expertise to resolve the parties’ disputes
7 AD HOC SHRIMP v. US
regardless of any complications or time-consuming proc-
esses.
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 litiga-
tion regarding the second administrative review will
provide Ad Hoc with relief relating to the first adminis-
trative 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 deci-
sion 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 informa-
tion” 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 cor-
roborated 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, Com-
merce had ample reason to rely on the accuracy and
comprehensiveness of the NACA Survey data.
Ad Hoc argues that the NACA Survey data is incom-
plete 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 Inter-
national 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 By-
Products 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 av-
erage 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) informa-
tion 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 conten-
tion that the NACA Survey data is unreliable or incom-
plete. For this reason, substantial evidence supports
Commerce’s finding that the NACA Survey data pre-
sented 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 evi-
dence 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.