Ad Hoc Shrimp Trade Action Committee v. United States

Slip Op. 07-11

UNITED STATES COURT OF INTERNATIONAL TRADE

AD HOC SHRIMP TRADE ACTION
COMMITTEE, VERSAGGI SHRIMP
CORP. and INDIAN RIDGE SHRIMP
CO.,

Plaintiffs,

v.
Before: Timothy C. Stanceu, Judge
UNITED STATES,
Consol. Court No. 05-00192
Defendant,

and

EASTERN FISH COMPANY, INC.,

Defendant-Intervenor.

OPINION

[Plaintiffs’ motion for judgment on the agency record denied due to failure to challenge final
injury determination of U.S. International Trade Commission]

Dated: January 23, 2007

Dewey Ballantine LLP (Bradford L. Ward, Rory F. Quirk and Mayur R. Patel) for
plaintiff.

Peter D. Keisler, Assistant Attorney General, David M. Cohen, Director, Patricia M.
McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States
Department of Justice; Christine J. Sohar, 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.

Stanceu, Judge: Plaintiffs Ad Hoc Shrimp Trade Action Committee, Versaggi Shrimp

Corp., and Indian Ridge Shrimp Co. (“plaintiffs”) challenge six amended final antidumping “less
Consol. Court No. 05-00192 Page 2

than fair value” determinations issued on February 1, 2005 by the United States Department of

Commerce (“Commerce”) pertaining to imported frozen shrimp. They allege that Commerce

improperly excluded a product known as “dusted shrimp,” which is frozen shrimp that is coated

with flour, from the scope of each of the investigations resulting in the amended final

determinations. Plaintiffs, as the petitioners in the administrative proceedings, had sought

antidumping duty investigations on a proposed class or kind of imported merchandise that was

sufficiently broad to include dusted shrimp and, during those proceedings, specifically had urged

Commerce to include dusted shrimp within the scope of the investigations.

Because of the exclusion of dusted shrimp from the scope, the antidumping duty orders

that resulted from the investigations, which together impose antidumping duties on frozen

warmwater shrimp from Brazil, China, Ecuador, India, Thailand and Vietnam (collectively “the

exporting countries”), do not apply to dusted shrimp. Plaintiffs move under USCIT R. 56.2 for

judgment on the agency record, seeking a remand to Commerce under which Commerce would

be directed to reissue its less than fair value determinations and amend the resulting antidumping

duty orders to include dusted shrimp within the scope of the investigations and the orders.

Because plaintiffs, although having brought a timely challenge to the amended final less than fair

value determinations of Commerce, failed to challenge the final affirmative injury determination

of the U.S. International Trade Commission (the “Commission”) on which the antidumping duty

orders on frozen shrimp were based, the court denies plaintiffs’ motion for judgment on the

agency record and dismisses this action.
Consol. Court No. 05-00192 Page 3

I. BACKGROUND

According to the findings of Commerce in the antidumping duty investigations, the

coating of flour present on dusted shrimp facilitates further processing, such as breading or

battering, in the production of prepared frozen shrimp products. As discussed in detail below,

Commerce included dusted shrimp within the scope of the investigations upon issuing its

preliminary less than fair value determinations but expressly excluded dusted shrimp in the final

and amended final determinations, despite the objections that plaintiffs had raised.

Plaintiffs had filed their petitions with Commerce and the Commission on December 31,

2003, in which petitions they sought the imposition of antidumping duties, in accordance with

the procedures of 19 U.S.C. § 1673 et seq., on imports of certain frozen and canned warmwater

shrimp from the exporting countries. The petitions alleged that these imports are, or are likely to

be, sold in the United States at less than fair value, and are materially injuring or are threatening

to materially injure an industry in the United States, within the meaning of 19 U.S.C. § 1673.

In response to plaintiffs’ petitions, the Commission, on January 8, 2004, published a

notice of initiation of its preliminary investigation under 19 U.S.C. § 1673b(a) to determine

whether there is a reasonable indication that an industry or industries in the United States are

materially injured or threatened with material injury by reason of the allegedly unfairly traded

imports of shrimp. Certain Frozen and Canned Warmwater Shrimp and Prawns From Brazil,

China, Ecuador, India, Thailand, and Vietnam, 69 Fed. Reg. 1301 (Jan. 8, 2004). Commerce

published a notice of initiation of its antidumping duty investigations on January 27, 2004

(“Notice of Initiation”). Notice of Initiation of Antidumping Duty Investigations: Certain Frozen

and Canned Warmwater Shrimp From Brazil, Ecuador, India, Thailand, the People’s Republic
Consol. Court No. 05-00192 Page 4

of China and the Socialist Republic of Vietnam, 69 Fed. Reg. 3876 (Jan. 27, 2004) (“Notice of

Initiation”). In the Notice of Initiation, Commerce described the scope of the investigations

according to the proposed class or kind of merchandise as defined in the petitions. This proposed

scope language encompassed shrimp products that had undergone various levels of processing,

including shrimp that had been prepared by the addition of marinade, spices or sauces, but

excluded breaded shrimp. The petitioners’ proposed scope language, as stated in the petitions

and as reflected in the Notice of Initiation, was sufficiently broad to include dusted shrimp.1

In the Notice of Initiation, Commerce set aside a brief period of time for the parties to

raise issues pertaining to the scope of the investigations. See id. at 3877. Between February and

June 2004, interested parties submitted comments on various scope-related issues, including

issues involving whether battered shrimp and dusted shrimp are or should be included within that

1
In pertinent part, the Notice of Initiation preliminarily described the scope of the
investigations as follows:

[C]ertain warmwater shrimp and prawns, whether frozen or canned, . . .
head-on or head-off, shell-on or peeled, tail-on or tail-off, deveined or not
deveined, cooked or raw, or otherwise processed in frozen or canned form.
* * *
Frozen shrimp and prawns that are packed with marinade, spices or sauce
are included in the scope of the investigations. In addition, food preparations,
which are not “prepared meals,” that contain more than 20 percent by weight of
shrimp or prawn are also included in the scope of the investigations.

Excluded from the scope are (1) breaded shrimp and prawns
(1605.20.10.20); (2) shrimp and prawns . . . commonly referred to as coldwater
shrimp, in any state of processing; (3) fresh shrimp and prawns whether shell-on
or peeled (0306.23.00.20 and 0306.23.00.40); (4) shrimp and prawns in prepared
meals (1605.20.05.10); and (5) dried shrimp and prawns.

Notice of Initiation, 69 Fed. Reg. at 3877 (emphasis added).
Consol. Court No. 05-00192 Page 5

scope. Defendant-intervenor Eastern Fish Company, Inc. requested that dusted shrimp be

excluded from the scope of the investigations.

During July and August 2004, Commerce published notices of its preliminary

determinations that certain frozen and canned warmwater shrimp from each of the exporting

countries are being, or are likely to be, sold in the United States at less than fair value. Although

it included dusted shrimp within the scope of the investigations, Commerce indicated in each

notice the possibility that, in the final determination, dusted shrimp might be excluded from the

scope of the investigations, stating as follows:

[W]hile 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. However, there is sufficient
evidence for the Department to be prepared to exclude this merchandise from the
scope of the order provided an appropriate description can be developed. To that
end, along with the previously solicited comments regarding breaded and battered
shrimp, the Department solicits comments from interested parties which
enumerate and describe a clear, administrable definition of dusted shrimp.

Notice of Preliminary Determination of Sales at Less Than Fair Value, Negative Preliminary

Determination of Critical Circumstances and Postponement of Final Determination: Certain

Frozen and Canned Warmwater Shrimp From the Socialist Republic of Vietnam, 69 Fed. Reg.

42,672, 42,676-77 (July 16, 2004) (“Preliminary Determination”) (citation omitted).

In response to the solicitation of comments, Eastern Fish Company, Inc. and Long John

Silver’s, Inc. submitted a proposed definition for dusted shrimp that Commerce later adopted.2

See App. to Pls.’ Ad Hoc Shrimp Trade Action Comm. et al. Mem. of Law in Support of J. on

the Agency R. Pursuant to Rule 56.2 (“App. to Pls.’ Mem.”), Ex. 15 (Letter from Collier

2
The five-part definition, as adopted by Commerce, is set forth later in this opinion.
Consol. Court No. 05-00192 Page 6

Shannon Scott to Sec’y of Commerce (Aug. 2, 2004)). Plaintiffs did not provide Commerce with

a definition of dusted shrimp. However, on August 2, 2004, plaintiffs submitted comments and a

declaration opposing the exclusion of dusted shrimp from the scope of the investigation. Id.

Ex. 25 (Letter from Dewey Ballantine LLP to Sec’y of Commerce (Aug. 2, 2004)). Plaintiffs

argued that a clear administrable definition of dusted shrimp is not achievable. Id. Ex. 25 at 10.

Plaintiffs also submitted to Commerce multiple case briefs arguing that dusted shrimp should be

included in the scope. Id. Exs. 26-35 (case briefs submitted by Dewey Ballantine LLP to the

Secretary of Commerce in October and November 2004).

Commerce held a scope hearing on November 23, 2004 and subsequently issued

memoranda regarding the scope of its investigations. Id. Ex. 14 (Commerce Scope Clarification

Mem. Regarding Dusted Shrimp and Battered Shrimp (Nov. 29, 2004)), Ex. 36 (Commerce

Scope Clarification Mem. Regarding Shrimp Scampi (Nov. 29, 2004)). In one of the

memoranda, Commerce concluded that “dusted shrimp is comprised of components that create

clear physical characteristics that separate dusted shrimp from subject merchandise.” Id. Ex. 14

at 23. Commerce found that the definition of dusting does not encourage removal of dusting

after importation as a means to circumvent an antidumping duty order, as “removal of the dusting

layer would be costly, time consuming and fatal to the quality of the product.” Id. Ex. 14 at 25.

Furthermore, “the removal of the dusting layer would compromise the quality of the product,

such as its taste, appearance, moisture content and nutritional content.” Id. Ex. 14 at 25.

Commerce also excluded from the scope “battered shrimp,” which it described as a shrimp-based

product that “when dusted in accordance with the definition of dusting, [is] coated with a wet

viscous layer containing egg and/or milk, and par-fried.” Id. Ex. 14 at 28.
Consol. Court No. 05-00192 Page 7

In its final determinations, in which it found that certain frozen and canned warmwater

shrimp from the exporting countries are being, or are likely to be, sold in the United States at less

than fair value, Commerce excluded dusted shrimp from the scope of the investigations and,

accordingly, from the class or kind of merchandise it found to be sold at less than fair value. See

Final Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater

Shrimp From the Socialist Republic of Vietnam, 69 Fed. Reg. 71,005 (Dec. 8, 2004).3 To

exclude dusted shrimp from the scope, Commerce, in each of the six final determinations,

adopted the definition proposed by Eastern Fish Company, Inc. and Long John Silver’s, Inc.,

defining “dusted shrimp” as a product that:

(1) Is produced from fresh (or thawed-from-frozen) and peeled shrimp; (2) To
which a ‘dusting’ layer of rice or wheat flour of at least 95 percent purity has been
applied; (3) So that the entire surface of the shrimp flesh is thoroughly and evenly
coated with the flour; and (4) The non-shrimp content of the end product
constitutes between 4 to 10 percent of the product’s total weight after being
dusted, but prior to being frozen; and (5) Is subjected to IQF freezing immediately
after application of the dusting layer.

Id. at 71,008 n.4.

3
As to the scope of the investigation, Commerce used the same language and reached the
same conclusions in the other five final less than fair value determinations. See Notice of Final
Determination of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater
Shrimp From Brazil, 69 Fed. Reg. 76,910 (Dec. 23, 2004); Notice of Final Determination of
Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From the
People’s Republic of China, 69 Fed. Reg. 70,997 (Dec. 8, 2004); Notice of Final Determination
of Sales at Less Than Fair Value: Certain Frozen and Canned Warmwater Shrimp From
Ecuador, 69 Fed. Reg. 76,913 (Dec. 23, 2004); Notice of Final Determination of Sales at Less
Than Fair Value and Negative Final Determination of Critical Circumstances: Certain Frozen
and Canned Warmwater Shrimp From India, 69 Fed. Reg. 76,916 (Dec. 23, 2004); Notice of
Final Determination of Sales at Less Than Fair Value and Negative Final Determination of
Critical Circumstances: Certain Frozen and Canned Warmwater Shrimp From Thailand,
69 Fed. Reg. 76,918 (Dec. 23, 2004).
Consol. Court No. 05-00192 Page 8

On December 7, 2004, plaintiffs filed comments alleging ministerial errors in the

calculations performed in connection with the final less than fair value determinations issued by

Commerce. Plaintiffs alleged as a ministerial error the exclusion of dusted shrimp from the

scope of the investigations and argued that Commerce failed to consider plaintiffs’ submitted

declaration on the dusted shrimp issue.

While it was publishing its final less than fair value determinations, Commerce sent a

letter to the Commission, apparently in response to a Commission request for clarification on the

question of dusted shrimp. The letter clarified that dusted shrimp, as identically defined in each

of the notices announcing the final determinations, is excluded from the scope of the six

investigations. Letter from Edward C. Yang, Senior Enforcement Coordinator, Dep’t of

Commerce, to Robert G. Carpenter, Dir., Office of Investigations, Int’l Trade Comm’n

(Dec. 21, 2004) (Vietnam Public Admin. R. Doc. No. 608).

In January 2005, the Commission published a notice summarizing its findings in the final

phase of its injury investigation. See Certain Frozen or Canned Warmwater Shrimp and Prawns

From Brazil, China, Ecuador, India, Thailand, and Vietnam, 70 Fed. Reg. 3943 (Jan. 27, 2005)

(“Commission Final Injury Determination”). The Commission separately published its detailed

findings. See Certain Frozen or Canned Warmwater Shrimp and Pawns [sic] From Brazil,

China, Ecuador, India, Thailand, and Vietnam, USITC Pub. 3748, Investigations Nos. 731-TA-

1063-1068 (Final) (Jan. 2005) (“USITC Pub. 3748”). The Commission found two domestic like

products. One like product, to which the Commission referred as “certain non-canned

warmwater shrimp,” consisted of fresh warmwater shrimp and prawns and those frozen

warmwater shrimp and prawn products included in Commerce’s scope definition. Id. at 11. The
Consol. Court No. 05-00192 Page 9

other domestic like product was canned warmwater shrimp and prawns (“canned warmwater

shrimp”). Id. The Commission found no injury or threat with respect to the canned warmwater

shrimp industry, which consisted of a single domestic producer. Id. at 3, 9. The Commission

found that material injury to the “certain non-canned warmwater shrimp” industry in the United

States was being caused by imports of subject merchandise other than canned shrimp. It found

injury to the domestic non-canned shrimp industry “by reason of imports from Brazil, China,

Ecuador, India, Thailand, and Vietnam of certain non-canned warmwater shrimp and prawns . . .

that have been found by the Department of Commerce (Commerce) to be sold in the United

States at less than fair value (LTFV).” Id. at 1. The Commission expressly recognized the

exclusion by Commerce of dusted shrimp from the scope of the subject non-canned warmwater

shrimp and prawns. Id. at 5 (“Commerce has additionally excluded shrimp sauce, certain dusted

shrimp, and certain battered shrimp from the scope definition.”).

On February 1, 2005, Commerce published amended final determinations and

antidumping duty orders. See Notice of Am. Final Determination of Sales at Less Than Fair

Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From the Socialist

Republic of Vietnam, 70 Fed. Reg. 5152 (Feb. 1, 2005) (“Am. Final Determination and Order”).4

4
See also Notice of Am. Final Determination of Sales at Less Than Fair Value and
Antidumping Duty Order: Certain Frozen Warmwater Shrimp from Brazil, 70 Fed. Reg. 5143
(Feb. 1, 2005); Notice of Am. Final Determination of Sales at Less Than Fair Value and
Antidumping Duty Order: Certain Frozen Warmwater Shrimp From the People’s Republic of
China, 70 Fed. Reg. 5149 (Feb. 1, 2005); Notice of Am. Final Determination of Sales at Less
Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From
Ecuador, 70 Fed. Reg. 5156 (Feb. 1, 2005); Notice of Am. Final Determination of Sales at Less
Than Fair Value and Antidumping Duty Order: Certain Frozen Warmwater Shrimp From India,
70 Fed. Reg. 5147 (Feb. 1, 2005); 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).
Consol. Court No. 05-00192 Page 10

Commerce declined to alter the scope of the investigations to include dusted shrimp and retained,

in the six amended final determinations, the same exclusion definition for “dusted shrimp” that it

had adopted in the final determinations. See id. at 5155-56. Commerce disagreed with plaintiffs’

contention that its exclusion of dusted shrimp from the scope of the investigations was a

ministerial error, stating that its “decision to exclude dusted shrimp from the scope of this

investigation was an intentional decision, and not a ministerial error.” App. to Def’s. Mem. in

Resp. to Pls.’ Mot. for J. on the Agency R., Ex. 22 at 21 (Commerce Analysis of Ministerial

Error Allegations (Jan. 26, 2005)). Commerce excluded imports of canned warmwater shrimp

and prawns from the scope of the antidumping duty orders due to the findings by the

Commission that injury to the domestic non-canned shrimp industry was caused by imports of

subject non-canned warmwater shrimp and that imports of canned warmwater shrimp did not

result in injury or threat to either of the domestic industries producing the like products. See Am.

Final Determination and Order, 70 Fed. Reg. at 5153 (stating that the antidumping duty order

reflects the Commission’s “distinction between canned warmwater shrimp and prawns and

certain non-canned warmwater shrimp and prawns. Specifically, canned warmwater shrimp and

prawns are excluded from the scope of the order.”).

In this consolidated action, plaintiffs allege that Commerce’s less than fair value

determinations, in excluding dusted shrimp from the scope of the investigations, are unsupported

by substantial evidence on the record and are otherwise not in accordance with law.5 Plaintiffs

5
Plaintiffs brought six separate actions by filing six summonses and six complaints
corresponding to each of the amended less than fair value determinations. The cases were
consolidated under Court Number 05-00192 by order of the Court of International Trade on
April 6, 2005, in response to plaintiffs’ consent motion for consolidation.
Consol. Court No. 05-00192 Page 11

move for judgment on the agency record pursuant to USCIT R. 56.2. As relief, plaintiffs seek a

remand of the final less than fair value determinations to Commerce under which the court would

instruct Commerce to rescind its exclusion of dusted shrimp from the scope of the underlying

antidumping duty investigations and to amend the resulting antidumping duty orders to include

dusted shrimp within the scope of those orders. See Pls.’ Mot. for J. on the Agency R. at Order.

They also seek an order requiring Commerce and the U.S. Bureau of Customs and Border

Protection (“Customs”) to ensure, to the extent possible, collection of cash deposits on all

unliquidated entries of dusted shrimp made since publication of the preliminary less than fair

value determinations in the investigations. Id.

II. DISCUSSION

A. Subject Matter Jurisdiction

Plaintiffs bring their challenges to the final amended less than fair value determinations

under Section 516A of the Tariff Act of 1930, as amended, 19 U.S.C. § 1516a (2000), which

provides for judicial review of various determinations of Commerce and the Commission arising

under the antidumping laws. Plaintiffs assert jurisdiction under 28 U.S.C. § 1581(c) (2000) and

19 U.S.C. § 1516a(a)(2)(A)(i)(II).

Plaintiffs’ reliance on 28 U.S.C. § 1581(c) for subject matter jurisdiction is correct, but

they err in citing to 19 U.S.C. § 1516a(a)(2)(A)(i)(II). Plaintiffs’ case does not arise under

subsection (a)(2)(A)(i)(II) of 19 U.S.C. § 1516a but arises instead under subsection

(a)(2)(A)(i)(I). The Court of International Trade is granted, in 28 U.S.C. § 1581(c), “exclusive

jurisdiction of any civil action commenced under section 516A of the Tariff Act of 1930.”

28 U.S.C. § 1581(c). Section 516A of the Act specifies as judicially reviewable various
Consol. Court No. 05-00192 Page 12

determinations in countervailing duty and antidumping proceedings. See 19 U.S.C.

§ 1516a(a)(2)(B). Specifically identified as a reviewable determination by clause (ii) of

19 U.S.C. § 1516a(a)(2)(B) is “[a] final negative determination by the administering authority or

the Commission under section . . . 1673d of this title [referring to a final determination in an

antidumping duty investigation], including, at the option of the appellant, any part of a final

affirmative determination which specifically excludes any company or product.” Id.

§ 1516a(a)(2)(B)(ii). This provision precisely describes the challenge that plaintiffs are bringing

to the amended final less than fair value determinations by Commerce. To obtain review of such

a determination, an interested party must proceed under 19 U.S.C. § 1516a(a)(2)(A)(i)(I) by

filing a summons within 30 days of the Federal Register publication of notice of the

determination and, within thirty days thereafter, by filing a complaint. Id. § 1516a(a)(2)(A)(i).

Plaintiffs’ reliance on subsection (a)(2)(A)(i)(II) is incorrect because that provision

addresses judicial review of a determination “described in clause (i) of subparagraph B” of

19 U.S.C. § 1516a(a)(2). Id. § 1516a(a)(2)(A)(i)(II). Clause (i) of subparagraph B specifically

excludes from its scope a part of an affirmative final less than fair value determination, as

referred to in clause (ii), that specifically excludes a product. See id. § 1516a(a)(2)(B)(i) (“Final

affirmative determinations by the administering authority and by the Commission under section

. . . 1673d of this title, including any negative part of such a determination (other than a part

referred to in clause (ii))”).

Plaintiffs’ summonses were timely filed on March 3, 2005, thirty days after the Federal

Register publication of the amended final less than fair value determinations. Their complaints,

filed on April 1, 2005, also were timely under 19 U.S.C. § 1516a(a)(2)(A)(i)(I). The court, in its
Consol. Court No. 05-00192 Page 13

discretion, will deem this case to have been brought under the correct statutory provision,

19 U.S.C. § 1516a(a)(2)(A)(i)(I). Accordingly, the court will consider the amended final

determinations of Commerce to be properly before the court for judicial review.

The court reaches the opposite conclusion with respect to the final injury determination of

the Commission. Although plaintiffs appealed the six amended final less than fair value

determinations that Commerce issued, they did not appeal the final affirmative injury

determination of the Commission that preceded, and was necessary to, the issuance of the six

antidumping duty orders. Consequently, pursuant to 19 U.S.C. § 1516a(a)(2), the Commission’s

final injury determination became unappealable, i.e., beyond judicial review by the Court of

International Trade, when thirty days had passed following publication without the filing of a

summons commencing an appeal. Because plaintiffs, in bringing this action, did not challenge

the final injury determination of the Commission, the court is now without subject matter

jurisdiction to remand that determination to the Commission or otherwise order the Commission

to reconsider it.

B. Plaintiffs’ Rule 56.2 Motion

Plaintiffs’ Rule 56.2 motion raises several issues. Because, for the reasons discussed

above, the court lacks jurisdiction to review the Commission’s final injury determination, the

first issue is whether that determination, in its current form, may be construed as a finding that

injury occurred to the domestic non-canned warmwater shrimp industry as a result of imported

subject merchandise that included dusted shrimp. Because the court concludes that the

Commission’s final injury determination cannot be so construed, the court next considers

whether it could now direct Commerce, on remand, to amend the antidumping duty orders to
Consol. Court No. 05-00192 Page 14

include dusted shrimp within the scope of those orders. The court concludes that the

antidumping statute prohibits it from doing so. As a consequence, the modification that plaintiffs

urge the court to order Commerce to make to the antidumping duty orders, and the related forms

of relief sought by plaintiffs in their Rule 56.2 motion, are unavailable. Finally, in response to a

point raised by plaintiffs at oral argument, the court considers whether, in the alternative, it

should remand the amended final less than fair value determinations to Commerce in anticipation

that the Commission might modify its final injury determination voluntarily and thereby allow

for a possible later remand directing Commerce to amend the antidumping duty orders to include

dusted shrimp. For the several reasons discussed below, the court concludes that this alternate

form of relief is not available to plaintiffs in the circumstances of this case.

1. The Commission’s Final Injury Determination Did Not Find Injury by Reason
of Imports of Foreign Merchandise That Included Dusted Shrimp

Commerce’s less than fair value determinations did not apply to a class or kind of

merchandise that included dusted shrimp. Instead, as discussed previously, Commerce expressly

excluded dusted shrimp from its determinations of sales at less than fair value. In its final

determination, the Commission found material injury “by reason of imports from Brazil, China,

Ecuador, India, Thailand, and Vietnam of certain non-canned warmwater shrimp and prawns . . .

that have been found by the Department of Commerce (Commerce) to be sold in the United

States at less than fair value (LTFV).” USITC Pub. 3748 at 1; see also Commission Final Injury

Determination. The Commission determined that a domestic industry is materially injured by

reason of imports of the subject merchandise other than imports of “canned warmwater shrimp,”

i.e., that the domestic industry is materially injured by reason of imports of the “certain non-
Consol. Court No. 05-00192 Page 15

canned warmwater shrimp” subset of the subject merchandise defined by Commerce.

Commission Final Injury Determination.

The limitation to subject merchandise that the Commission observed in its causation

analysis is required by statute. The Commission is directed to “make a final determination of

whether–(A) an industry in the United States–(i) is materially injured, or (ii) is threatened with

material injury, or (B) the establishment of an industry in the United States is materially retarded,

by reason of imports, or sales (or the likelihood of sales) for importation, of the merchandise

with respect to which the administering authority has made an affirmative determination under

subsection (a)(1) of this section.” 19 U.S.C. § 1673d(b)(1) (2000) (emphasis added). The

determination under subsection (a)(1) is the determination by Commerce “of whether the subject

merchandise is being, or is likely to be, sold in the United States at less than its fair value.”

19 U.S.C. § 1673d(a)(1). Because Commerce excluded dusted shrimp from its less than fair

value determinations, the Commission’s injury determination may not properly be construed as a

finding that the injury the Commission determined to be occurring to the domestic non-canned

warmwater shrimp industry occurred by reason of subject merchandise that included dusted

shrimp.

In response to questions by the court concerning the effect of the Commission’s final

injury determination on the relief plaintiffs are seeking, counsel for plaintiffs argued that the

Commission’s analysis culminating in its final injury determination would not have been

different had Commerce included dusted shrimp within the scope of the final investigation.

Oral Argument Tr. 39-42, Jan. 19, 2006. Counsel for plaintiffs also argued that the dumping

margin calculations of Commerce that were relied upon by the Commission included sales of
Consol. Court No. 05-00192 Page 16

dusted shrimp. The Commission’s published results, particularly the data relied upon by the

Commission, lend some support to these contentions. The background analysis published with

the views of the Commission states that U.S. imports of subject merchandise were based on

Commerce statistics. See USITC Pub. 3748 at I-2, n.3. The background analysis states in several

places that “[t]o the extent official statistics contain any imports of ‘dusted’ or ‘battered’ shrimp

(which Commerce excluded from the scope of investigations in its final determinations) imports

may be slightly overstated.” Id.; see also id. at IV-6 & IV-7. Even were the court to accept

plaintiffs’ argument that the Commission’s analysis would not have been different had

Commerce included dusted shrimp in the scope of the investigations for the final less than fair

value determinations, the court could not overlook the point that the Commission did not

determine, and cannot consistent with law be considered to have determined, that injury resulted

to a domestic industry as a result of subject merchandise that included dusted shrimp. As the

statute required, the Commission issued an injury determination that expressly limited its

analysis of causation to certain subject merchandise, i.e., all subject merchandise except canned

warmwater shrimp. Dusted shrimp was not included within that subject merchandise.6

6
Plaintiffs also argued that respondents had the opportunity and incentive to advocate for
identification of dusted shrimp as a separate like product before the Commission. See
Oral Argument Tr. at 26, Jan. 19, 2006 (“the parties who might have said something about dusted
shrimp as a separate like product had multiple opportunities at the prelim investigation phase
before the [Commission] and did not take advantage of that.”); see also Pls.’ Reply Br. 17. The
court does not see the relevance of this argument, which pertains to the Commission’s
determination of domestic like products, to the issues presented by this case. By statute, the
Commission was directed to determine, in the final phase of its investigation, injury or threat to a
domestic industry or industries by reason of imports or sales of the subject merchandise, which
did not include dusted shrimp.
Consol. Court No. 05-00192 Page 17

2. Commerce Lacks Authority to Amend the Antidumping Duty Orders to Include Dusted
Shrimp Absent a Final Injury Determination Pertaining to Dusted Shrimp

Plaintiffs’ Rule 56.2 motion seeks two basic forms of relief. As their first, and primary,

plea for relief, plaintiffs seek an order directing Commerce to rescind its determinations

excluding dusted shrimp from the scope of the antidumping duty investigations and to “amend its

determinations to include ‘dusted shrimp’ among the products subject to the various relevant

antidumping duty orders for which cash deposits are required.” Pls.’ Mot. for J. on the Agency

R. at Order at 1. They augment this proposed relief by seeking an order directing Commerce to

“take such other steps as are necessary to ensure that imports of ‘dusted shrimp’ . . . are subject to

the antidumping duty orders.” Id. at Order at 2.

The primary relief that plaintiffs seek is beyond the power of the court to grant. The

statute, in the circumstance of this case, does not permit Commerce to issue an antidumping duty

order that imposes antidumping duties on merchandise not included within the class or kind of

merchandise that was the subject of Commerce’s affirmative determination of sales at less than

fair value and that also was the subject of an affirmative final injury determination by the

Commission. See 19 U.S.C. § 1673.7 Because of the statutory relationship between the final

determination of sales of a class or kind of merchandise at less than fair value and the subject of

the Commission’s final determination, the court may not direct Commerce to take action that is

7
As provided by 19 U.S.C. § 1673, “[i]f–(1) the administering authority determines that a
class or kind of foreign merchandise is being, or is likely to be, sold in the United States at less
than its fair value, and (2) the Commission determines that–(A) an industry in the United
States–(i) is materially injured, or (ii) is threatened with material injury, or (B) the establishment
of an industry in the United States is materially retarded, by reason of imports of that
merchandise or by reason of sales (or the likelihood of sales) of that merchandise for
importation, then there shall be imposed upon such merchandise an antidumping duty . . . .”
19 U.S.C. § 1673 (emphasis added).
Consol. Court No. 05-00192 Page 18

contrary to the governing statute. Therefore, even were the court to remand the amended final

less than fair value determinations with instructions to include dusted shrimp within the class or

kind of merchandise that is subject to investigation, the court would not have the authority to

instruct Commerce concurrently to amend the antidumping duty orders so as to achieve the

remedy that plaintiffs seek.

Plaintiffs seek an additional form of relief by means of their Rule 56.2 motion. They seek

an order requiring Commerce and Customs to ensure, to the extent possible, that cash deposits

are collected for all unliquidated entries of dusted shrimp made since publication of the

preliminary less than fair value determinations in the investigations. Pls.’ Mot. for J. on the

Agency R. at Order at 1-2. Plaintiffs essentially seek the retroactive benefit of provisional

measures under the antidumping law. In its preliminary less than fair value determinations,

Commerce included dusted shrimp within the scope of the subject merchandise. Upon the

publication of an affirmative preliminary determination, Commerce is required to order the

suspension of liquidation of entries of merchandise subject to the determination and the posting

of a cash deposit, bond, or other security for antidumping duty liability on such entries.

19 U.S.C. § 1673b(d)(1)(B) & (d)(2). Entries of dusted shrimp therefore would have been

subject to provisional measures, i.e., suspension of liquidation and the posting of security, until

the issuance of the final less than fair value determinations, at which point Commerce excluded

dusted shrimp from the scope of the investigations. After the publication of the final

determinations, Commerce presumably directed Customs to release past entries of dusted shrimp

from suspension of liquidation and to liquidate those entries without regard to antidumping

duties. Plaintiffs’ request for relief would require that Commerce be directed to order, again, the
Consol. Court No. 05-00192 Page 19

suspension of liquidation for any entries of dusted shrimp that still may be unliquidated and to

require, again, security for antidumping duty liability, this time in the form that plaintiffs request,

i.e., cash deposits. Plaintiffs’ request for this form of relief is based on an implied assumption

that entries of dusted shrimp from the six exporting countries eventually could be liquidated so as

to subject this merchandise to antidumping duties. That is not a valid assumption. Absent

antidumping duty orders applicable to dusted shrimp from the exporting countries, antidumping

duties may not be assessed on those entries. Because the court lacks the power to direct

Commerce to issue amended antidumping duty orders such as those sought by plaintiffs, the

court cannot grant plaintiffs this additional relief.

3. Plaintiffs Are Not Entitled to the Alternate Relief They Sought at Oral Argument

For the reasons discussed previously, the court is unable to grant the specific relief sought

by plaintiffs in their Rule 56.2 motion for judgment on the agency record. Plaintiffs, however,

raise one additional issue, and in so doing impliedly seek a form of relief not sought in their

motion.

At oral argument, in response to questions by the court concerning the effect of the

Commission’s final injury determination on the relief being requested, counsel for plaintiffs

suggested that the court could remand to Commerce the amended final less than fair value

determinations without concurrently directing a modification of the antidumping duty orders.

Oral Argument Tr. 42-43, Jan. 19, 2006. In that way, plaintiffs suggest, the court could allow for

the possibility that the Commission could modify its injury determination voluntarily, perhaps in

response to a possible referral by Commerce. The court interprets this suggestion as
Consol. Court No. 05-00192 Page 20

contemplating a possible future remand to Commerce to modify the antidumping duty orders to

include dusted shrimp, should it happen that the Commission takes such a voluntary action.

The court observes that plaintiffs, although suggesting this alternate form of relief at oral

argument, have not sought leave to amend their complaint or their Rule 56.2 motion

accordingly.8 The court is not obligated to act on its own to rewrite plaintiffs’ complaint or their

motion. That motion, for the reasons discussed previously, seeks relief that the court is not

empowered to grant. For these reasons alone, plaintiffs’ current Rule 56.2 motion must be

denied.

Even were the court to consider plaintiffs to have sought, according to applicable court

rules, the alternate form of relief they now contemplate, the court nevertheless would conclude

that this relief is not available to plaintiffs in the circumstances of this case. Those circumstances

are such that plaintiffs could have obtained judicial review of the Commission’s final injury

determination but did not do so. Congress specifically provided, in 19 U.S.C.

§ 1516a(a)(2)(B)(ii), for judicial review that would have allowed plaintiffs to challenge “[a] final

negative determination by the administering authority or the Commission under section . . .

1673d of this title, including, at the option of the appellant, any part of a final affirmative

determination which specifically excludes any company or product.” 19 U.S.C.

§ 1516a(a)(2)(B)(ii). Plaintiffs had full opportunity to pursue an appeal of the Commission’s

determination, having been placed on notice by Commerce’s original, final less than fair value

8
Arguably, plaintiffs’ complaint describes generally this proposed relief by seeking that
the court “[p]rovide such other relief as is just and appropriate.” Compl. ¶ 21d. However,
neither the complaint nor the Rule 56.2 motion describes the complicated and contingent remand
procedure that plaintiffs suggested at oral argument.
Consol. Court No. 05-00192 Page 21

determinations that dusted shrimp was excluded from the scope of the subject merchandise. As

discussed in the background section of this opinion, those determinations were published in the

Federal Register on December 8 and December 23, 2004.9 Federal Register notice of the

Commission’s final injury determination was published on January 27, 2005.

Because plaintiffs did not appeal the Commission’s final injury determination, a court

order directing Commerce to include dusted shrimp within the scope of the investigations and

reissue its less than fair value determinations would be futile should the Commission refuse to

act voluntarily to modify its final injury determination. The court can now have no assurance

that the Commission would modify its final determination in the way necessary to the issuance of

amended antidumping duty orders.10 Plaintiffs are not entitled to a remedy that forces a

government agency, in this case Commerce, to conduct the administrative process necessary to

the issuance of remand redeterminations where that process, due to plaintiffs’ failure to bring the

Commission’s final determination within the jurisdiction of the court, might well prove to be a

useless exercise.

9
It also would have been possible for plaintiffs, acting expeditiously, to file a summons
and complaint seeking judicial review of Commerce’s original, final less than fair value
determinations. Although there is no way to know how such filing would have affected the
course of these proceedings, the action could have served as notice to the Commission that the
scope as defined in Commerce’s final investigations might later have been enlarged.
10
The court is aware of circumstances, not analogous to those of this case, in which the
Commission voluntarily has reconsidered a previous determination, such as where the data on
which the determination was based later proved to be false or fraudulent. See Elkem Metals Co.
v. United States, 26 CIT 234, 193 F. Supp. 2d 1314 (2002) (where the Commission reconsidered
an injury determination to determine whether the data on which that injury determination was
based were false or misleading).
Consol. Court No. 05-00192 Page 22

The Commission’s obligation to limit the causation analysis of its injury determination to

subject merchandise as defined by Commerce would have been no bar to plaintiffs’ obtaining

judicial review of the Commission’s final determination. Nor does it matter for purposes of

obtaining any such judicial review that the Commission may have acted correctly at the time in

issuing an injury determination in reliance on a definition by Commerce of subject merchandise

that, through no fault of the Commission’s, might later have been determined to be contrary to

law. Indeed, had plaintiffs attempted to appeal the Commission’s final determination, the

relevant circumstances, in important respects, would have been analogous to those present in

Borlem S.A.–Empreedimentos Industriais v. United States, 913 F.2d 933 (Fed. Cir. 1990). In

Borlem, the Court of Appeals for the Federal Circuit held that the Court of International Trade,

under the remand authority of 28 U.S.C. § 2643(c)(1), had the power to order the Commission to

reconsider a final affirmative threat of injury determination where, subsequent to the issuance of

that determination, Commerce had amended the less than fair value determination and the

antidumping duty order to effect substantial reductions in the dumping margins and render some

of them de minimis. Id. at 935-36. Borlem, however, involved a final Commission

determination that the Court of Appeals for the Federal Circuit recognized to be properly under

review in the Court of International Trade, a circumstance not present in this case. See id. at 936.

III. CONCLUSION

The Commission’s final determination, which is not before the court for review, found

injury to a domestic industry by reason of imports of a subset of the subject merchandise that did

not include dusted shrimp. In the absence of a determination by the Commission of injury or

threat of injury by reason of subject merchandise including dusted shrimp, the court has no power
Consol. Court No. 05-00192 Page 23

to order Commerce, on remand, to amend the antidumping duty orders on frozen warmwater

shrimp so as to extend the scope of the orders to include dusted shrimp entries. The specific

relief plaintiffs seek in their Rule 56.2 motion is therefore unavailable. The court will deny

plaintiffs’ Rule 56.2 motion and enter judgment dismissing this action.

/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge

Dated: January 23, 2007
New York, New York
 UNITED STATES COURT OF INTERNATIONAL TRADE

AD HOC SHRIMP TRADE ACTION
COMMITTEE, VERSAGGI SHRIMP
CORP. and INDIAN RIDGE SHRIMP
CO.,

Plaintiffs,

v.
Before: Timothy C. Stanceu, Judge
UNITED STATES,
Consol. Court No. 05-00192
Defendant,

and

EASTERN FISH COMPANY, INC.,

Defendant-Intervenor.

JUDGMENT

Upon review of plaintiffs’ motion for judgment on the agency record and all relevant
papers and proceedings had herein, and upon due deliberation; it is hereby

ORDERED that plaintiffs’ motion is DENIED; and it is further

ORDERED that this action is dismissed.

/s/ Timothy C. Stanceu
Timothy C. Stanceu
Judge

Dated: January 23, 2007
New York, New York