602 F.3d 1319 (Fed. Cir. 2010), 2009-1282, Gallant Ocean (Thailand) Co., Ltd. v. United States

Docket Nº:2009-1282.
Citation:602 F.3d 1319
Opinion Judge:RADER, Circuit Judge.
Party Name:GALLANT OCEAN (THAILAND) CO., LTD., Plaintiff-Appellant, v. UNITED STATES, Defendant-Appellee.
Attorney:Robert G. Gosselink, Trade Pacific PLLC, of Washington, DC, argued for plaintiff-appellant. With him on the brief were Jonathan M. Freed and Ji Hyun Tak. Carrie Dunsmore, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for def...
Judge Panel:Before RADER, MOORE Circuit Judges, and WILKEN, District Judge. [*]
Case Date:April 16, 2010
Court:United States Courts of Appeals, Court of Appeals for the Federal Circuit
 
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Page 1319

602 F.3d 1319 (Fed. Cir. 2010)

GALLANT OCEAN (THAILAND) CO., LTD., Plaintiff-Appellant,

v.

UNITED STATES, Defendant-Appellee.

No. 2009-1282.

United States Court of Appeals, Federal Circuit.

April 16, 2010

Page 1320

Robert G. Gosselink, Trade Pacific PLLC, of Washington, DC, argued for plaintiff-appellant. With him on the brief were Jonathan M. Freed and Ji Hyun Tak.

Page 1321

Carrie Dunsmore, Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. On the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, and Stephen C. Tosini, Attorney.

Before RADER, MOORE Circuit Judges, and WILKEN, District Judge. [*]

RADER, Circuit Judge.

Gallant Ocean (Thailand) Co., Ltd. (" Gallant" ) appeals from a final judgment of the United States Court of International Trade concerning its importation of frozen warmwater shrimp. The Court of International Trade affirmed a decision of the United States Department of Commerce (" Commerce" ) to apply an adverse facts available (" AFA" ) rate of 57.64% against Gallant. Gallant Ocean (Thailand) Co., Ltd. v. United States, 602 F.Supp.2d 1337 (Ct. Int'l Trade 2009). Because substantial evidence does not support the 57.64% AFA rate, this court vacates and remands.

I.

Commerce issues antidumping duty orders for imported merchandise that is sold in the United States below its fair value and materially injures or threatens to injure a domestic industry. See 19 U.S.C. § 1673 (2006). An antidumping duty reflects the amount by which the normal value exceeds the export price of a foreign exporter's merchandise. 19 U.S.C. § 1673e(a)(1); 19 U.S.C. § 1677(35). This excess amount is also known as the " dumping margin." The normal value is the price of the merchandise when sold for consumption in the exporting country. 19 U.S.C. § 1677b(1). If the imported merchandise is not sold in the exporting country, the normal value is the price at which the merchandise is sold for consumption in another similar exporting country or the United States. Id.

Commerce periodically reviews and reassesses antidumping duties. 19 U.S.C. § 1675(a). During its administrative review, Commerce requests information from the interested parties, including the foreign exporters of the subject merchandise. Upon a finding that an interested party refuses to cooperate with these information requests, Commerce " may use an inference that is adverse to the interests of that party in selecting from among the facts otherwise available." 19 U.S.C. § 1677e(b). Therefore, Commerce can apply AFA rates against uncooperative parties. In calculating AFA rates, Commerce may rely on information derived from (1) the petition; (2) a final determination in the investigation; (3) any previous review; or (4) any other information in the record. Id. " When [Commerce] relies on secondary information rather than on information obtained in the course of an investigation or review, [Commerce] shall, to the extent practicable, corroborate that information from independent sources that are reasonably at [its] disposal." 19 U.S.C. § 1677e(c).

II.

Gallant is a Thai exporter of shrimp. In December 2003, the Ad Hoc Shrimp Trade

Page 1322

Action Committee, a domestic committee, filed petitions with Commerce and the International Trade Commission (" ITC" ), alleging that Thai and other foreign exporters were dumping frozen warmwater shrimp in the United States. Notice of Initiation of Antidumping Duty Investigations, 69 Fed.Reg. 3876 (Jan. 27, 2004). Based on the petition, Commerce calculated the Thai exporters' dumping margin at 57.64%, as adjusted at the initiation of the less-than-fair value investigation. Id. at 3881. Thus, Commerce initially assigned an adjusted petition rate of 57.64% against Thai exporters.

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