Slip Op. 10-39
UNITED STATES COURT OF INTERNATIONAL TRADE
AD HOC SHRIMP TRADE ACTION
COMMITTEE, VERSAGGI SHRIMP
CORPORATION, and INDIAN RIDGE
SHRIMP COMPANY,
Plaintiffs,
v.
Before: Timothy C. Stanceu, Judge
UNITED STATES,
Consol. Court No. 05-00192
Defendant,
and
EASTERN FISH COMPANY, INC.,
Defendant-Intervenor.
OPINION
[Affirming the redetermination by the United States Department of Commerce of the scope of
less-than-fair-value determinations in an antidumping proceeding]
Dated: 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) 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) for defendant-
intervenor.
Consol. Court No. 05-00192 Page 2
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
Consol. Court No. 05-00192 Page 3
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
1
The administrative record provided in this case, Consolidated Court No. 05-00192, sets
forth the documents for the Thailand investigation. Accordingly, the court cites to the Federal
Register notice for Thailand. The court also provides the citations for parallel determinations
made in the concurrent investigations of Brazil, Ecuador, India, the People’s Republic of China,
and the Socialist Republic of Vietnam.
Consol. Court No. 05-00192 Page 4
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
2
Commerce published, on the same day, five amended final less-than-fair-value
determinations and antidumping duty orders for the five other exporting countries. See Notice of
Am. Final Determination of Sales at Less Than Fair Value & Antidumping Duty Order: Certain
Frozen Warmwater Shrimp from Brazil, 70 Fed. Reg. 5143, 5145 (Feb. 1, 2005); Notice of Am.
Final Determination of Sales at Less Than Fair Value & Antidumping Duty Order: Certain
Frozen Warmwater Shrimp from Ecuador, 70 Fed. Reg. 5156, 5158 (Feb. 1, 2005); Notice of Am.
Final Determination of Sales at Less Than Fair Value & Antidumping Duty Order: Certain
Frozen Warmwater Shrimp from India, 70 Fed. Reg. 5147, 5148 (Feb. 1, 2005); Notice of Am.
Final Determination of Sales at Less Than Fair Value & Antidumping Duty Order: Certain
Frozen Warmwater Shrimp From the People’s Republic of China, 70 Fed. Reg. 5149, 5152 (Feb.
1, 2005); Notice of Am. Final Determination of Sales at Less Than Fair Value & Antidumping
Duty Order: Certain Frozen Warmwater Shrimp From the Socialist Republic of Vietnam, 70 Fed.
Reg. 5152, 5156 (Feb. 1, 2005).
Consol. Court No. 05-00192 Page 5
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
Consol. Court No. 05-00192 Page 6
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
Consol. Court No. 05-00192 Page 7
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 and that, as a result, “it is unnecessary to
recalculate any antidumping duty margins in this remand determination.” Id.
The Redetermination addresses the objections that Eastern Fish and Long John Silver’s,
Inc. (“LJS”) made in comments on the draft remand redetermination and rejects all but one of
these objections. Id. at 8 n.10, 13-17. Commerce acknowledged that its “references to amending
the scope of the [antidumping duty] orders in its Draft Remand Redetermination were in error”
and agreed with Eastern Fish and LJS that “the [Court of International Trade] instructed the
Department to address in its redetermination only the issue of whether the scope of the final and
amended final determinations should include dusted shrimp, and not the scope of the orders.” Id.
at 13. Commerce therefore decided that dusted shrimp should be added to the scope language of
the LTFV determinations but not to the scope of the antidumping duty orders. Id.
Based on its review of the Redetermination and the record Commerce has filed, the court
concludes that the Redetermination complies with the court’s order in Ad Hoc III and sets forth
reasoning that is adequate to support the Department’s findings and conclusions. The
Redetermination determines that dusted shrimp is included within the plain meaning of the
proposed scope language as set forth in the original petitions and, specifically, is described by the
term “food preparations” as used therein. Id. at 7. The Redetermination further determines,
logically and consistently with the record evidence in this case, that dusted shrimp does not fall
within the breaded shrimp exclusion. Id. at 8 (“Dusted shrimp is an input into the production of
Consol. Court No. 05-00192 Page 8
breaded and battered shrimp, rather than breaded or battered shrimp itself. Shrimp coated with
flour is physically different from shrimp coated with breading or batter.”).
In its comments to the court, defendant-intervenor Eastern Fish argues that Commerce,
having determined that dusted shrimp is within the scope of the investigations, “was required on
remand to again determine whether dusted shrimp is within a class or kind of merchandise
separate from the class that covers all other subject merchandise, but failed to do so without
providing any lawful reason.” Def.-Intervenor Comments 15. Eastern Fish seeks a second
remand order to “direct the agency to determine whether dusted shrimp constitutes a separate
class or kind of merchandise from the class that covers all other subject merchandise in these
investigations, and if so, to take the appropriate administrative actions that are required by this
result.” Id. at 15-16. It argues that Commerce “for each petition . . . must determine (1) the
number of classes or kinds of merchandise covered by that petition’s suggested scope language,
and (2) the boundary for each such class.” Id. at 5. Defendant-intervenor points to a practice by
Commerce of determining whether the scope of imported merchandise set forth in a petition
encompasses more than one class or kind of merchandise by applying the five criteria set forth in
Diversified Products Corp. v. United States, 6 CIT 155, 572 F. Supp. 883 (1983). Def.-
Intervenor Comments 7.
Defendant-intervenor identifies what it considers to be indications that the scope of the
investigations includes more than one class or kind of merchandise. Id. at 9-11. It submits that
during the investigations petitioners not only argued that all proposed subject merchandise
constituted a single domestic like product despite widely varying degrees of post-harvest
processing, but also argued that breaded shrimp, for which petitioners wanted an exclusion, was
Consol. Court No. 05-00192 Page 9
not part of that domestic like product. Id. at 10-11. According to Eastern Fish, Commerce’s
accepting petitioners’ position on a breaded shrimp exclusion strongly suggests that breaded
shrimp is within a separate class or kind of merchandise from other subject merchandise. Id.
at 11.
With specific respect to dusted shrimp, Eastern Fish recounts that Commerce, applying a
Diversified Products analysis, excluded dusted shrimp from the investigations “largely on its
finding that dusted shrimp constituted a separate class or kind of merchandise from all covered
merchandise.” Id. at 13. Eastern Fish submits that it was improper for Commerce, on remand, to
place dusted shrimp within the scope of the investigations yet also conclude that it was not
required to perform a class-or-kind analysis with respect to dusted shrimp. Id. at 4.
Eastern Fish’s argument does not persuade the court that the Redetermination is contrary
to law. The premise of the argument–that Commerce improperly has avoided making a
determination on whether or not dusted shrimp is a separate class or kind of subject
merchandise–misconstrues the Redetermination and is contrary to the record and procedural
history of this case. Implicit in the Redetermination is a decision by the Department that dusted
shrimp is included within the same class or kind of merchandise as all other subject shrimp.
Commerce issued the Redetermination in response to the order in Ad Hoc III, which
found fault with the Department’s determination that dusted shrimp was a separate class or kind
of merchandise from the subject merchandise. Ad Hoc III, 33 CIT at __, 637 F. Supp. 2d
at 1179. The court observed that the general scope language was not limited to frozen shrimp
that lacked any form of a coating, seasoning, marinade, or sauce and that it appeared to include
all forms of processed frozen warmwater shrimp, as defined in the general scope language, that
Consol. Court No. 05-00192 Page 10
were not specifically excluded. Id. The court also noted that the general scope language also
encompassed food preparations, other than prepared meals, that contained more than twenty
percent by weight of warmwater shrimp. Id.
Eastern Fish’s objection relies in part on the following sentence in the Redetermination:
“Given that the Department now finds dusted shrimp to be covered by the plain language of the
scope and is thus subject merchandise, we are no longer examining whether it is a separate class
or kind of merchandise for purposes of determining whether it should be covered or excluded.”
Retermination 17. Defendant-intervenor construes this sentence, and related discussion in the
Redetermination, as signifying that Commerce has decided that it need not consider whether
dusted shrimp constitutes a separate class or kind of merchandise. Def.-Intervenor
Comments 3-4.
Defendant-intervenor’s argument rests on a selective reading of the Department’s
discussion of the “class or kind” issue. Considered as a whole, the analysis in the
Redetermination is not consistent with a determination that dusted shrimp is a separate class or
kind of merchandise. In the investigations, Commerce regarded all imported merchandise within
the scope of the investigations to comprise a single class or kind of merchandise, and nothing in
the Redetermination modifies that approach. To the contrary, Commerce explicitly stated in the
Redetermination its conclusion that dusted shrimp is “covered by the plain language of the scope
and is thus subject merchandise.” Redetermination 17. Moreover, Commerce expressly rejected
Eastern Fish’s comment, made in response to the draft remand redetermination, that “because
dusted shrimp constitutes a separate class or kind of merchandise from all other subject
merchandise, the Department must ensure that all of the initiation requirements have been met
Consol. Court No. 05-00192 Page 11
for dusted shrimp for each country, and must conduct an LTFV investigation for dusted shrimp
from each country.” Id. at 12. In disagreeing with the comment, Commerce explained that
because of its conclusion that dusted shrimp “constitutes a food preparation within the meaning
of the scope of the original investigations, we do not need to conduct new investigations for
dusted shrimp.” Id. at 16. Commerce expressly disclaimed the earlier Diversified Products
analysis under which it characterized dusted shrimp as a separate class or kind of subject
merchandise. Id. at 17 (“We no longer employ the irrelevant analysis that the Court rejected.”).
When read in its entirety and in the context of the record and procedural history, the
Redetermination does not support defendant-intervenor’s objection that Commerce improperly
disregarded the question of whether dusted shrimp constitutes a separate class or kind of
merchandise. Because the court rejects defendant-intervenor’s interpretation of Commerce’s
decision as stated in the Redetermination, it also must reject the request for a second remand.
III. CONCLUSION
The Redetermination is in accordance with law and complies with the court’s order in Ad
Hoc III. The court will affirm the Redetermination by entering judgment accordingly.
/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge
Dated: April 14, 2010
New York, New York