*1 liability year tax ditional CRAWFISH PROCESSORS ALLI-

overpayment. ANCE, Department Agri- Louisiana Healthcare, Inc., 222 B.R. In re Vendell Forestry, Odom, culture & and Bob (Bankr.M.D.Tenn.1998): Commissioner, Plaintiffs-Appellants, liability Because Vendell had no tax for 1994, years the fiscal of 1993 and STATES, Defendant-Appellee. UNITED deprived not government was of use money holding since it was Vendell’s No. 2006-1501. payments tax that would re- estimated Appeals, United States Court of satisfy At duce or the tax deficiencies. Federal Circuit. therefore, point, no were the 1991 and “unpaid” 1992 taxes “due” and to the April overpayments extent the IRS held the satisfy to reduce or the tax liabilities. principle

These cases that in-

terest should be assessed when the already possesses payment.

IRS recognized principle

Federal Circuit

Computervision Corp. v. United (Fed.Cir.2006) (dis-

445 F.3d

cussing suspension interest under Revenue FleetBoston,

Ruling For it is not 99—

disputed had Fleet- overpayment, despite

Boston’s and that money

the “credit-elect” this was not allo- any years

cated tax deficit charged interest was to FleetBo-

ston. FleetBoston that it stresses is not

seeking paid to be interest on overpay-

ments; seeking it is not to charged underpayments

interest on its for the period

same overpay- which it made the fair,

ment. This is accordance with weight precedent.

statute and the I

thus my colleagues’ must dissent from con-

trary holding.

1359 appellee. him on the With brief were Pe- Keisler, General, Attorney ter D. Assistant Cohen, Director, M. David and Jeanne E. Davidson, Deputy Director. Of counsel Browne, were Berniece A. Marisa Gold- stein, Mclnerney, and John D. United Commerce, Department States of of Wash- ington, DC. LOURIE, RADER,

Before BRYSON, Judges. Circuit LOURIE, Judge. Circuit Crawfish Processors Louisiana Department Agriculture Forestry, of (collective- Odom, Commissioner, and Bob “CPA”) ly appeal from the decision of the United of States Court International sustaining Trade ruling Department United States of Commerce (“Commerce”) that crawfish etouffee is not antidump- included of an ing duty covering freshwater craw- fish tail meat. Processors Alli- Crawfish F.Supp.2d ance v. (Ct. Int’l Trade Because substan- tial evidence Commerce’s deter- mination that etouffee is not order, we affirm.

BACKGROUND Antidumping an appeal This involves Duty imposed against freshwater Order imported crawfish tail meat from the Peo- China, ple’s Republic Septem- of effective 15,1997. ber 48218-02. by that is “freshwa- product covered forms ter crawfish tail all its Adduci, Steinberger, John Mastriani C. washed or with fat whether L.L.P., Schaumberg, Washington, & unpurged), grades, DC, argued plaintiffs-appellants. With fresh, frozen, and re- him on the brief was E. Leonard. Will packed, preserved, it is gardless how Silverbrand, Attorney, David Trial S. prepared.” Id. Branch, Litigation Civil Divi- Commercial Foods, LLC Justice, On June Coastal sion, Department States DC, (“Coastal”), importer of crawfish etouf- Washington, argued for defendant- ruling from Com- that etouffee be included within fee, requested antidumping duty order. determine merce to was included required As under *3 duty order. Coastal de- antidumping in an regulations, deciding on the of product as “a crawfish etouffee scribed antidumping duty Commerce must flour, combining integrating and by made of the merchan- descriptions consider the onions, oil, cooking peppers, bell tomatoes petition, the initial dise contained form), celery or other or (paste, puree investigation, the of determinations salt, vegetables, garlic, pepper, other other Secretary the and the Commission. Com- water, (starches), seasonings, thickeners and found merce considered those factors butter, and crawfish tailmeat.” oleo or they dispositive were not of whether process further elaborated the Coastal crawfish etouffee is included within the involved “a making crawfish etouffee antidumping duty scope of the relevant complex cooking procedure tempera- descrip- order. Commerce focused on the ranging from 200°F to 350°F over a tures in light language tions of etouffee of the period” time and resulted in considerable order that states that the cov- blending integration complete ered the order is “freshwater crawfish characterized its ingredients. Coastal meat, in all its forms washed fully as a cooked and un- or with fat whether or ready-to-heat-and-serve comprised “stew” grades, and whether fro- purged), mostly gravy. Coastal asserted zen, fresh, regardless or scope request that crawfish tail meat is packed, prepared.” preserved, how is one of used mak- added). (emphasis ing etouffee and that once the tail meat despite Commerce observed that the dif- integrated has been blended and with oth- interpretations ferent of what constitutes ingredients, er it cannot “unblended “prepared,” in- proper un-integrated.” Accordingly, Coastal quiry is not whether the tail meat etouf- argued that etouffee was not fee was but rather whether antidumping of the meat, “etouffee is still considered tail covering freshwater crawfish the tail meat has been trans- meat. product.” formed into a different Com- descriptions merce found that the of etouf- 29, 2004, July following On re- Coastal’s light of the fee did quest, informed all interested inquiry. not resolve this parties initiating scope inqui- that it was ry to in- determine etouffee was Because the criteria forth in 19 set cluded within the of the § dispositive C.F.R. were not duty order on freshwater crawfish tail of whether etouffee is included within the imported People’s Republic meat from the antidumping duty August of China. On the Craw- merce considered the additional Diversi- factors,1 organization fish Processors Products as set fied representing producers domestic of craw- Those factors include the meat, fish tail regard- physical product, submitted comments characteristics of the ing scope request sought expectations purchasers, Coastal’s of the ultimate regulations, Corp. to codification Trade in Prior Diversified. 351.225(k)(2) (Ct. factors set forth in 19 C.F.R. F.Supp. Int’l Trade were identified the Court of International fundamentally changed chan- when it becomes the ultimate use sold, in which the nels of trade Accordingly, granted etouffee. the court and the manner judgment sustaining de- displayed. advertised and disposi- factor is single that no

termined timely appealed, juris- and we have However, found that the tive. 1295(a)(5). pursuant diction 28 U.S.C. characteristics of tail physical overall were altered when included DISCUSSION characteristics of tail physical

from the Accordingly, Commerce itself. *4 “[W]e use same standard of cooked in the found that when that review the Court of International Coastal, had under- manner described reviewing scope Trade uses when determi into a a substantial transformation gone Department: nations the Commerce product. and different new substantial expectations found that the further Commerce’s determination and whether of etouffee differ from the ultimate users that determination accords with law.” No the ultimate users of craw- expectations of States, 1261, vosteel SA v. 284 F.3d is suitable fish tail meat because etouffee (Fed.Cir.2002). evi 1269 “Substantial heating serving, whereas dence” means “such relevant evidence aas crawfish tail meat could be freshwater might accept adequate reasonable mind as variety of meals. Based on used a criteria, to a conclusion.” consideration of the various Consol. Edison NLRB, ruled that etouffee is not included merce v.Co. 305 U.S. 59 S.Ct. scope (1938). of the Moreover, 83 L.Ed. 126 we crawfish tail meat. order on freshwater “enjoys have held that Commerce substan interpret clarify tial freedom to The of International Trade sus- Court antidumping duty orders.” Ericsson GE tained Commerce’s Craw- Commc’ns, Inc. v. Mobile F.Supp.2d 431 Processors fish (Fed.Cir.1995). that 60 F.3d 1342. The court first determined under its appropriately Commerce acted argues that Commerce appeal, On CPA inqui- it a regulations when initiated should not have considered the Diversified ry. The court next found that Commerce Products factors set forth considered the initial criteria set forth 331.225(k)(2) scope language because and determined that those antidumping duty disposi- order is criteria do not resolve whether etouffee is CPA, According tive of the issue. of the order. “prepared” “preserved” etouffee is Accordingly, was correct to fur- clearly tail therefore meat is Products fac- ther consider Diversified antidumping duty of the The tors set Corp. order. CPA relies on Orlando Food carefully that con- court found States, 140 F.3d v. United factors sidered the Diversified 1998), argument that a can for its supported and that substantial evidence even when the determination that etouffee is significantly changed the addition not within the of the order. The argues further ingredients. other something court noted that etouffee is for the improper it was merely than “pre- more to have considered International Trade pared” crawfish meat and character of crawfish tail meat is whether the “essential character” essential investigation, Secretary suspended had been a etouffee following: take into account the will changed. (1) descriptions The of the merchandise although responds The the initial petition, contained prepared,” “preserved investigation, and the determinations “preserved pre- considered cannot be Secretary (including prior the tail tail meat” because pared determinations) and the Com- undergone a substantial transfor- meat has mission. government contends mation. The (2) are not dis- When the above criteria as not considered etouffee is positive, Secretary will further a meat because etouffee is crawfish tail consider: govern- product. and different The new (i) characteristics of the physical The distin- argues that Orlando Food is ment product; that case on its facts because guishable prepared product was (ii) involved of the ultimate expectations final and finished whereas purchasers; prod- involve a final and finished case does *5 (iii) product; The ultimate use of the Moreover, government asserts uct. the (iv) The channels of trade which actually supports Food that Orlando sold; and product the is product significantly that a can be position (v) product The manner in which the product may that final be altered such the displayed. is advertised entirely product. as an new considered 351.225(k). § plainly As stated C.F.R. Therefore, government asserts when the criteria set regulations, substantial § do not resolve forth pre- that etouffee is not determination product at issue within the whether the is prepared crawfish tail meat and served or then consid- scope of clearly hence is ers the additional criteria set duty scope antidumping order. 351.225(k)(2), known also as the Diversi- agree We with the Products criteria. fied of International Trade sus- argues scope CPA first ruling. scope tained Commerce’s Com- order includes procedures scope inquiries merce’s for are did not need to therefore In set forth 19 C.F.R. 351.225. deter- criteria. consider the Diversified mining particular product whether a is in- specifically, argues More that etouf- scope cluded within the of an “prepared” “preserved” fee is or the crite- Commerce considers tail provided scope meat as 351.225(k). ria set forth in 19 C.F.R. language. scope The order lan That regulation reads as follows: guage states that “the covered (k) scope Other determinations. With investigation and order is freshwater respect scope to those determinations meat, crawfish tail in all its forms that are not paragraphs covered under or with fat or washed section, through O') (g) of this in consid- unpurged), grades, and whether fro ering particular product zen, fresh, whether a is regardless or packed, preserved, prepared.”2 included within the of an order or how it is or scope scope upon language petition. 2. The order was based provided by September the CPA in its added). (emphasis As a mixture of addi- CPA, in- According to crawfish etouffee meat, tion to crawfish tail Commerce could craw- cludes reasonably have determined that etouffee thus falls within the fish tail meat and is not freshwater tail meat and therefore is However, as scope of the order. not included within the of the order. noted, wrong on the merce CPA focuses CPA relies on Orlando Food for support inquiry. states argument for its that the addition of other meat, preserved ingredients fundamentally change does not is included within the prepared, an underlying product. But the facts are order, but silent on whether etouf- different in Orlando Food and therefore fee, may very well prepared include fact, that case does not aid In CPA. preserved is included decision in provides Orlando Food further of the order. As Com- for Commerce’s determined, proper inquiry merce That case concerned whether a specific prop- whether the etouffee is still product should be classified under erly considered freshwater crawfish tail heading of the Harmonized Tariff Schedule meat, or whether the tail meat has been (“HTSUS”) of the United States of “Toma- transformed into a different such longer that it can no craw- toes prepared preserved” considered or “Sauces express language tail meat. The fish preparations therefor.” Orlando clearly order does not resolve Food, 140 F.3d at 1440. The inquiry. issue was a canned tomato consist- whole, ing approximately sixty percent *6 Because Commerce determined tomatoes, forty peeled percent tomato that the as salt, by acid, puree weight, as well as citric well as the other factors set forth and basil leaf. Id. at 1349. Orlando sold 351.225(k)(l), dispositive are not to the Company, Nestle which whether etouffee is included within the produce used the to finished toma- properly consid ered additional criteria in to Id. sauces. We determined that Orlan- Commerce found that the product could be do’s classified under the tail meat in etouffee has under prepared preserved” “Tomatoes head- gone a “substantial transformation” such ing “despite presence of incidental longer etouffee can no be considered that, spices.” Id. We further determined freshwater crawfish tail meat. Substantial “although seasonings the addition of sets finding. According apart from unseasoned canned description Coastal’s tomatoes, hardly changes the essential product is considered to be a stew with product.” tomato character of the Id. addition to crawfish In with the contrast Orlando tail meat. The stew needs to be Food, mainly to- consisted whole being heated and served before consumed. matoes with the addition of “incidental” ingredients Commerce found have spices and was not a final penetrated perma the tail meat have final prod- merce found etouffee is a nently original altered its flavor. More served, ready consisting many uct to be over, determined, rec and the ingredients to crawfish tail addition supports, ord that etouffee is intended and Thus, a meat. etouffee bears different expected to be served as such after heat than relationship to crawfish tail meat ing, whereas can variety prepared ingredient used as of meals. canned whole tomatoes does to Hassle, Aktiebolag, Aktiebolaget In- Accordingly, the Court of Astra tomatoes. Inc., Enterprises Merck Astra correctly relied on Or- Astra Trade ternational Inc., KBI-E, Inc., KBI, Inc., support for its conclusion Merck lando Food LP, character of the and Astrazeneca Plaintiffs-Cross the essential that because Appellants, altered tail meat etouffee was “substantially prep- transformed” could process, aration Inc., Pharmaceuticals, Andrx that etouffee is not fresh- have determined Defendant-Appellant, contemplated tail meat as water crawfish scope order. Inc., Genpharm, Kremers Urban CONCLUSION Co., Development and Schwarz Inc., Pharma, Defendants. reasons, foregoing the decision For the of International Trade sus- by the Court 04-1563, 04-1562, Nos. 04-1589. determination taining Commerce’s Appeals, States etouffee is not included Federal Circuit. duty order is affirmed. April AFFIRMED.

RADER, Judge, concurring. Circuit again applies

This court the Atlantic duplicate review to

Sugar standard of In already given the Court of

review Sugar, Trade. See Atl. Ltd. v.

ternational States, 744 F.2d 1556 case, substantial record evi In this supports Commerce’s determination

dence *7 However, in the result. as I

and I concur stated in Zenith v. previously

have F.3d

1996) (Rader, concurring), this court J. wisely key its standard of

might more to the work al give

review to deference

ready by the Court of Interna performed

tional Trade. Such a standard is consis statute,

tent id. at and as I see with

it, is standard this court should proper

adopt. PATENT

In re OMEPRAZOLE

LITIGATION.