Crawfish Processors Alliance v. United States

Slip Op. 07-156

UNITED STATES COURT OF INTERNATIONAL TRADE

BEFORE: Senior Judge Nicholas Tsoucalas
________________________________________
CRAWFISH PROCESSORS ALLIANCE; :
LOUISIANA DEPARTMENT OF :
AGRICULTURE AND FORESTRY; :
BOB ODOM, COMMISSIONER, :
:
Plaintiffs, :
:
v. :
:
UNITED STATES, :
:
Defendant, :
:
and : Consol. Court No.
: 02-00376
HONTEX ENTERPRISES, INC., d/b/a :
LOUISIANA PACKING COMPANY; :
QINGDAO RIRONG FOODSTUFF CO., LTD. :
and YANCHENG HAITENG AQUATIC :
PRODUCTS & FOODS CO., LTD; :
BO ASIA, INC., GRAND NOVA :
INTERNATIONAL, INC., PACIFIC :
COAST FISHERIES CORP., :
FUJIAN PELAGIC FISHERY GROUP CO., :
QINGDAO ZHENGRI SEAFOOD CO., LTD. :
and YANGCHENG YAOU SEAFOOD CO., :
:
Defendant-Intervenors :
and Plaintiffs. :
________________________________________:

JUDGMENT

This matter comes before the Court pursuant to the decision of

the United States Court of Appeals for the Federal Circuit (“CAFC”)

in Crawfish Processors Alliance v. United States (“Crawfish CAFC”),

477 F.3d 1375 (Fed. Cir. 2007), and the CAFC mandate, dated April

20, 2007, reversing the judgment of the Court in Crawfish

Processors Alliance v. United States (“Crawfish CIT”), 28 CIT 646,
343 F. Supp. 2d 1242 (2004). The only issue considered on appeal

in Crawfish CAFC was whether Fujian Pelagic Fishery Group Co.

(“Fujian”) and Pacific Coast Fisheries Corp. (“Pacific Coast”) are

affiliated parties pursuant to 19 U.S.C. § 1677(33).

Section 1677(33)(E) provides that “[a]ny person directly or

indirectly owning, controlling, or holding with power to vote, 5

percent or more of the outstanding voting stock or shares of any

organization and such organization” constitutes affiliation. 19

U.S.C. § 1677(33)(E).

In April 2002, the International Trade Administration of the

United States Department of Commerce (“Commerce”) determined, inter

alia, that Fujian and Pacific Coast are not affiliated parties

pursuant to 19 U.S.C. § 1677(33). See Notice of Final Results of

Antidumping Duty Administrative Review, and Final Partial Recission

of Antidumping Duty Administrative Review of Freshwater Crawfish

Tail Meat from the People’s Republic of China (“Final Results”), 67

Fed. Reg. 19,546 (Apr. 22, 2002).

In Crawfish CIT, this Court found that “Fujian had not made an

investment, whether in cash or in the form of a promissory note, in

Pacific Coast and that Fujian did not exercise control over Pacific

Coast.” 28 CIT at 675, 343 F. Supp. 2d at 1269. Accordingly, this

Court sustained Commerce’s determination that the two entities are

not affiliated. Id.

On appeal, the CAFC, holding that 19 U.S.C. § 1677(33)(E)

“does not require a transfer of cash or merchandise to prove
ownership or control of an organization’s shares,” found that

Fujian put forth sufficient evidence to demonstrate that it

directly or indirectly owned and controlled at least 5% of Pacific

Coast’s shares. Crawfish CAFC, 477 F.3d at 1384. The CAFC thus

determined that substantial evidence did not support Commerce’s

determination that Fujian and Pacific Coast are not affiliated and

reversed the decision of this Court in Crawfish CIT. See id.

Accordingly, pursuant to said decision and mandate by the
CAFC, it is hereby

ORDERED that this Court’s Opinion and Judgment in Crawfish
CIT, sustaining Commerce’s determination that Fujian and Pacific
Coast are not affiliated pursuant to 19 U.S.C. § 1677(33), are
vacated; and it is further

ORDERED that the Final Results are remanded to Commerce to
recalculate the dumping margin treating Fujian and Pacific Coast as
affiliated parties in compliance with the CAFC’s decision and
mandate; and it is further

ORDERED that the remand results are due within ninety (90)
days of the date that this opinion is entered. Any responses or
comments are due within thirty (30) days thereafter. Any rebuttal
comments are due within fifteen (15) days after the date the
responses or comments are due.

/s/ Nicholas Tsoucalas
NICHOLAS TSOUCALAS
SENIOR JUDGE

Dated: October 30, 2007
New York, New York