                              Slip Op. 09 - 85

           UNITED STATES COURT OF INTERNATIONAL TRADE
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AD HOC SHRIMP TRADE ACTION COMMITTEE, :

                              Plaintiff,    :

                   v.                       :

UNITED STATES,                              :     Court No. 07-00380

                              Defendant,    :
                 -and-
                                            :
GROBEST & I-MEI INDUSTRIAL (VIETNAM)
CO., LTD.,                                  :

              Intervenor-Defendant.    :
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                              Memorandum & Order

[Plaintiff’s motion for judgment upon the
 agency record denied; action dismissed.]
                                                  Decided:     August 12, 2009

     Dewey & LeBoeuf LLP (Bradford L. Ward, Rory F. Quirk and
David A. Bentley) for the plaintiff.

     Tony West, Assistant Attorney General; Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director, Commercial
Litigation Branch, Civil Division, U.S. Department of Justice
(Stephen C. Tosini); and Office of the Chief Counsel for Import
Administration, U.S. Department of Commerce (Jonathan Zielinski
and Aaron Kleiner), of counsel, for the defendant.

     Thompson Hine LLP (Matthew R. Nicely and Christopher M.
Rassi) for the intervenor-defendant.

     Heller Ehrman LLP (William H. Barringer) for Minh Phu
Seafood Corporation, Minh Qui Seafood Co., Ltd. and Minh Phat
Seafood Co., Ltd., amici curiae.

          AQUILINO,      Senior   Judge:    The    Ad   Hoc    Shrimp     Trade

Action   Committee,      an   association   of     U.S.       producers     and
Court No. 07-00380                                                  Page 2


processors of warmwater shrimp, having successfully petitioned

the   International    Trade     Administration,    U.S.     Department   of

Commerce (“ITA”), for imposition of the antidumping-duty order

published   at   70   Fed.Reg.    5,152   (Feb.    1,    2005),   thereafter

requested a first administrative review thereof pursuant to 19

U.S.C. §1675, which resulted in ITA’s 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), that are

now at issue in this action brought in accordance with 19 U.S.C.

§1516a(a)(2)(A) and 28 U.S.C. §§ 1581(c) and 2631(c).1


      1
        The petitioner’s request for ITA review initially
implicated some 84 enterprises, only one of which, Vietnam Fish
One Co., Ltd., fully participated as a respondent in the
agency’s proceedings that resulted in that company’s assignment
of a zero dumping margin for the period July 16, 2004 to January
31, 2006.    Margins ranging from 4.57 to 25.76 percent were
assigned for that period of review to 15 other firms.     See 72
Fed.Reg. at 52,054, col. 2 and n. 9.

     Vietnam Fish One Co. has not sought to intervene in this
action, but Grobest & I-Mei Industrial (Vietnam) Co., Ltd., one
of the many companies dropped from the ITA’s review, then
requested and was afforded agency review as a new shipper.
While it too was ultimately assigned a dumping margin of zero
[see id.], it has sought and obtained leave to intervene herein
as a party defendant.

     Come now Minh Phu Seafood Corporation, Minh Qui Seafood
Co., Ltd. and Minh Phat Seafood Co., Ltd. alleging, among other

                                                        (footnote continued)
Court No. 07-00380                                                Page 3


                                     I

             The   precise   focus   of    plaintiff’s     complaint,   as

reflected in the preliminary injunction it applied for and had

entered, is the zero margin assigned to Vietnam Fish One Co.,

Ltd.       It now moves for judgment on the underlying ITA record

pursuant to USCIT Rule 56.2.

                                     A

             As indicated, the country of origin of the merchandise

that is subject to the antidumping-duty order is the Socialist

Republic of Vietnam, which the ITA considers to be a “nonmarket

economy     country”2   (“NME”)   within   the   meaning   of   the   Trade

Agreements Act of 1979, as amended, 19 U.S.C. §1677(18).


things, that they are large Vietnamese exporters of frozen
warmwater shrimp to the United States, that they were not
involved in the ITA administrative review sub judice herein but
that they have been mandatory respondents in the second and the
third such reviews.    Cf. Certain Frozen Warmwater Shrimp From
the Socialist Republic of Vietnam: Final Results and Final
Partial Rescission of Antidumping Duty Administrative Review, 73
Fed.Reg. 52,273 (Sept. 9, 2008); Certain Frozen Warmwater Shrimp
from the Socialist Republic of Vietnam: Preliminary Results,
Preliminary Partial Rescission and Request for Revocation, In
Part, of the Third Administrative Review, 74 Fed.Reg. 10,009
(March 9, 2009).    Whereupon they move in the absence of any
appearance herein by Vietnam Fish One Co. for leave to file a
brief as amici curiae, which motion can be, and it hereby is,
granted.
       2
       The statute defines this term, in general, to mean any
foreign country that the ITA determines does not operate on

                                                    (footnote continued)
Court No. 07-00380                                      Page 4


          To determine whether subject merchandise is being, or

is likely to be, sold in the United States at less than fair

value, the agency must make “a fair comparison . . . between the

export price or constructed export price and normal value.”   19

U.S.C. §1677b(a).    When that merchandise emanates from an NME,

however, the actual export price is often not a valid source of

comparison due to the nature of such a country.    Whereupon the

ITA, in general, is to

     determine 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 expenses. . . . [T]he valuation of the factors
     of production shall be based on the best available
     information regarding the values of such factors in a
     market economy country or countries considered to be
     appropriate by [it].

19 U.S.C. §1677b(c)(1).

          In this instance, the agency found

     Bangladesh to be a reliable source for surrogate
     values because Bangladesh is at a similar level of
     economic development pursuant to 773(c)(4) of the Act,
     is a significant producer of comparable merchandise,
     and has publicly available and reliable data.    . . .
     Furthermore, we note that Bangladesh has been the
     primary surrogate country in past segments and both
     the Petitioner and Respondents submitted surrogate
     values   based    on   Bangladeshi   data   that   are


market principles of cost or pricing structures, so that sales
of merchandise in such country do not reflect the fair value of
the merchandise. See 19 U.S.C. §1677(18)(A).
Court No. 07-00380                                                            Page 5


       contemporaneous to the [period of review], which gives
       further credence to the use of Bangladesh as a
       surrogate country.

72 Fed.Reg. at 10,695 (citation omitted).                  Furthermore, it

       determined that data contained in a study of the
       Bangladeshi shrimp industry published by the Network
       of Aquaculture Centres in Asia-Pacific (“NACA”), an
       intergovernmental organization affiliated with the
       UN’s Food and Agriculture Organization, is a suitable
       surrogate value for shrimp from the surrogate country,
       namely, Bangladesh.

Id. at 10,697.


                 The petitioner cum plaintiff continues to attempt to

impeach that study, which is entitled Evaluation of the impact

of the Indian Ocean tsunami and U.S. anti-dumping duties on the

shrimp farming sector of South and South-East Asia: Case studies

in Vietnam, Indonesia and Bangladesh (Oct. 2006) and apparently

publicly available on NACA’s website.                 According to ITA’s Issues

and    Decision      Memorandum      for   the    Final   Results     of    the   First

Antidumping        Duty   Administrative         Review   and   First   New   Shipper

Review (Sept. 5, 2007)3, which is at the core of the agency’s

Final Results herein4, the petitioner argued, among other things,

that       the   NACA   study   is   unreliable      because     it   was   based    on

       3
       This document, which will be cited hereinafter as
“DecMemo”, is on the ITA record and publicly available on the
ITA’s website.
       4
           See 72 Fed.Reg. at 52,053, col. 2.
Court No. 07-00380                                              Page 6


voluntary questionnaire responses that were not audited, that

its coverage of the industry was limited, and that its data are

incomplete because they do not contain two of the shrimp count

sizes used in the margin calculation for Vietnam Fish One Co.,

Ltd.     See DecMemo, p. 3.      Now, the plaintiff pinpoints the

study’s alleged flaws as follows:


  •    The data obtained by the NACA Survey were based on
       voluntary information obtained through questionnaires
       from a limited number of Bangladeshi shrimp processors.
       . . .   In fact, the NACA Survey consists of just eight
       Bangladeshi shrimp processors. . . .

  •    Further, the survey’s coverage of Bangladeshi shrimp
       processors is scattershot -- Apex, one of the largest
       shrimp processors in Bangladesh, was not even included in
       the NACA Survey. . . .

  •    Moreover, the NACA data not only were not audited, they
       are admittedly imprecise.      In fact, the NACA Survey
       concedes that “general price information” was collected
       from Department of Fisheries officers “with the aim of
       validating the general accuracy” of the survey.    NACA
       Survey at 56 (emphasis added).

  •    In addition, the NACA data are incomplete, as they do not
       include two of the shrimp count sizes used in the margin
       calculation, a flaw which required Commerce to fill in
       these data “holes” with extrapolated prices. . . . In
       contrast, the Apex prices cover all count sizes used in
       Commerce’s margin calculation, and do not require any
       extrapolation of missing information. . . .


Plaintiff’s   Memorandum   of   Law,   pp.   8-9   (citations   omitted;

emphasis in original).
Court No. 07-00380                                                              Page 7


                                             B

                Whereupon     the    plaintiff       postulates       the     issues     it

presents viz.:

            a. Whether Commerce erred when it valued raw
       shrimp based on the surrogate value from . . . the . . .
       NACA Survey . . . rather than on publicly available,
       audited, count-specific raw shrimp purchase prices
       from the Bangladeshi shrimp processor Apex Foods Ltd.
       . . . , which were on the record.

            b. Whether Commerce erred in the calculation of
       the surrogate financial ratios by excluding the
       financial   statements   of  the   Bangladeshi  shrimp
       processor Bionic Seafood Exports Limited . . . because
       Bionic failed to show a profit.

Id. at 1-2 (citation omitted).


                Seemingly, counsel’s crafting of this action reduces

it    to   an    anomaly,     even    a   paradox.      That    is,    courts        always

contemplate ab initio the relief a party prays for.                                 In the

matter at bar, if this court understands plaintiff’s position

correctly, all that it seeks before liquidation of any Vietnam

Fish One Co., Ltd. entries during the period of review is a

dumping      margin     for    that       company    greater    than        zero.       Its

memorandum of law and proposed order filed in conjunction with

its motion for judgment on the agency record request remand to

the    ITA      with   “instructions”        to     correct    defendant’s          errors.

According to the foregoing issues presented, those “errors” boil
Court No. 07-00380                                        Page 8


down to agency disregard of data from two particular Bangladeshi

shrimp processors.     The plaintiff would have this court order

the ITA to rely solely on information for Apex Foods Ltd. -- to

the exclusion of data for other such processors in the surrogate

state, either reflected in the NACA study or otherwise.        And

even if, as the plaintiff argues, the Apex data are the “gold

standard”5, at least with regard to the seemingly-sole object of

its complaint, Vietnam Fish One Co., Ltd.6, there is no showing

what impact that standard would have (or could have had) on the

margins derived for the other 15 enterprises subject to the

ITA’s Final Results, supra.    In other words, the plaintiff would

apparently allow those numbers to stand, albeit based upon the

NACA data and agency record it otherwise seeks, for one company,

to order the defendant to disregard.

                                  C

            As revealed in footnote 1, supra, the Final Results

herein are but the first from an ITA review of the underlying

antidumping-duty order, and, with the passage of time, other

     5
         Plaintiff’s Memorandum of Law, pp. 4, 8.
     6
       Experienced counsel claim this is a rare instance in an
NME proceeding where both the petitioner and a mandatory
respondent agree on best surrogate information on the record for
valuing the primary production input. Id. at 4.
Court No. 07-00380                                                              Page 9


such reviews have been undertaken.                    Indeed, the second review

has been completed and the final results thereof published at 73

Fed.Reg. 52,273 (Sept. 9, 2008), and the agency has published

preliminary results for its third review, 74 Fed.Reg. 10,009

(March 9, 2009).             Numerous parties have filed and/or joined in

complaints over the final results of the second review per CIT

Nos.       08-00301,     -00325     and    -00347,     which     matters      have     been

ordered consolidated and which are now on the Court calendar for

oral       argument    on    September     16,    2009.        While    the    plaintiff

herein, Ad Hoc Trade Action Committee, has been granted leave to

appear therein as an intervenor-defendant, this court notes that

it continued its complaint in the second review over the ITA’s

reliance      on   the      NACA   data.     See,     e.g.,    Issues    and    Decision

Memorandum for the Second Administrative Review, p. 7 (Sept. 2,

2008).        Hence, it seems safe to assume that that issue will

entail       multipartite      litigation        in   the     consolidated      case    in

contrast with its paradoxical lie herein.7


       7
       The court notes in passing that the ITA has continued to
attribute a zero margin of dumping to Vietnam One Fish Co., Ltd.
[see 73 Fed.Reg. at 52,276] but that it has, to date, denied
that company’s request for revocation of the antidumping-duty
order as against it on the grounds of three consecutive years of
no dumping. See 74 Fed.Reg. at 10,011, col. 3.
Court No. 07-00380                                                  Page 10


                                        II

           In   view    of    the     foregoing,   plaintiff’s   motion   for

judgment   upon   the        agency    record   can   be   denied   (without

prejudice) and its anomalous action dismissed.

           So ordered.

Decided:   New York, New York
           August 12, 2009



                                          /s/ Thomas J. Aquilino, Jr.
                                                  Senior Judge
