Gallant Ocean (Thailand) Co., Ltd. v. U.S.

• Decision Date: 30 January 2009
• Docket Number: Court No. 07-00360.,Slip Op. 09-10.
• Citation: 602 F.Supp.2d 1337
• Parties: GALLANT OCEAN (THAILAND) CO., LTD., Plaintiff, v. UNITED STATES, Defendant.
• Court: U.S. Court of International Trade

602 F.Supp.2d 1337

GALLANT OCEAN (THAILAND) CO., LTD., Plaintiff, v. UNITED STATES, Defendant.

Slip Op. 09-10.

Court No. 07-00360.

United States Court of International Trade.

January 30, 2009.

COPYRIGHT MATERIAL OMITTED

COPYRIGHT MATERIAL OMITTED

Trade Pacific PLLC (Robert G. Gosselink, Jonathan Michael Freed, and Ji Hyun Tak), Washington, D.C., for Plaintiff Gallant Ocean (Thailand) Co., Ltd.

Michael F. Hertz, Deputy Assistant Attorney General; Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice (Stephen Carl Tosini), for Defendant United States.

OPINION

Wallach, Judge.

I INTRODUCTION

Plaintiff Gallant Ocean (Thailand) Co., Ltd. ("Gallant") appears before the court on its Motion for Judgment Upon the Agency Record pursuant to USCIT Rule 56.2, challenging an aspect of the United States Department of Commerce's ("Commerce" or "Department") findings in Certain Frozen Warmwater Shrimp from Thailand: Final Results and Final Partial Rescission of Antidumping Duty Administrative Review, 72 Fed.Reg. 52,065 (September 12, 2007) ("Final Results"). This court has jurisdiction pursuant to 28 U.S.C. § 1581(c). Because Commerce's determination was supported by substantial evidence and in accordance with law, it is sustained and judgment is entered for the Defendant United States.

II BACKGROUND

In April 2006, Commerce initiated the administrative review of the antidumping duty order on certain frozen warmwater shrimp from Thailand for 145 companies. Notice of Initiation of Administrative Reviews of the Antidumping Duty Orders on Certain Frozen Warmwater Shrimp from Brazil, Ecuador, India and Thailand, 71 Fed.Reg. 17,819 (April 7, 2006). The period of review was August 4, 2004 to January 31, 2006. Id. Commerce asked Gallant, and all other companies for which a review was requested, to submit a quantity and value ("Q & V") questionnaire, available on Commerce's website, on or before April 28, 2006. Id. at 17, 829. Thirty-two companies including Gallant did not timely respond. Certain Frozen Warmwater Shrimp From Thailand: Preliminary Results and Partial Rescission of Anti-Dumping Duty Administrative Review, 72 Fed.Reg. 10,669, 10,673 (March 9, 2007) ("Preliminary Results").

Commerce provided the unresponsive companies with a second opportunity in May 2006. Id. Commerce informed them in correspondence that a "failure to respond to this questionnaire may result in the Department's deeming your company uncooperative in this proceeding. In such case, the Department may assign your company an antidumping duty margin using adverse inferences in accordance with" 19 U.S.C. § 1677e(b). Letter from Shawn Thompson, Program Manager, Office 2, AD/CVD Operations, U.S. Department of Commerce, to Representatives of Non-Cooperating Companies ("To Whom it May Concern"), Re: 2004-2006 Administrative Review of the Antidumping Duty Order on Certain Frozen Warmwater Shrimp from Thailand (May 11, 2006), Public Record ("P.R.") 144. Six companies including Gallant did not timely respond to this subsequent request. Preliminary Results, 72 Fed.Reg. at 10,673.

On March 9, 2007, Commerce found that the unresponsive companies "withheld requested information and significantly impeded the proceeding." Preliminary Results, 72 Fed.Reg. at 10,673. Commerce preliminarily determined that these companies, including Gallant, "did not act to the best of their abilities ... because they failed to respond to the Department's requests for information. Therefore, an adverse inference is warranted in selecting from the facts otherwise available with respect to the companies." Id. Pursuant to 19 U.S.C. § 1677e(b), Commerce selected an adverse facts available ("AFA") antidumping margin for the unresponsive companies. Id. The Department "preliminarily assigned a rate of 57.64 percent, which is the highest rate alleged in the petition, as adjusted at the initiation of the less-than-fair value (LTFV) investigation." Id.

Commerce set forth its rationale for selecting the petition margin to be the AFA rate in the Preliminary Results. Because this rate relied upon secondary evidence, it had to be reasonably corroborated. 19 U.S.C. § 1677e(c). Commerce explained its corroboration as having compared the petition margin to the transaction-specific margins calculated for the three mandatory respondent companies: Good Luck Product Co., Ltd. ("Good Luck Product"), Thai I-Mei Frozen Foods Co., Ltd. ("Thai I-Mei"), and Pakfood Public Company Limited and its affiliated subsidiaries (collectively "Pakfood").¹ Preliminary Results, 72 Fed.Reg. at 10,669-70.

Commerce preliminarily found the 57.64 percent petition rate to be "reliable and relevant because the petition rate fell within the range of individual transaction margins calculated for the mandatory respondents." Id. at 10,673. Commerce explained that both Good Luck Product and Pakfood had multiple transactions with margins higher than the petition rate, although Commerce did exclude one Thai Mei margin higher than 57.64 percent for being aberrational. Memorandum from Brianne Riker, Analyst, Office 2, AD/CVD Operations, U.S. Department of Commerce, to The File through Shawn Thompson, Program Manager, Office 2, AD/CVD Operations, Re: Corroboration of Adverse Facts Available for the Preliminary Results in the 2004-2006 Administrative Review of Certain Frozen Warmwater Shrimp from Thailand (February 28, 2007), P.R. 475, Confidential Record ("C.R.") 134 ("Preliminary AFA Corroboration Memo."), at 1. The Department further found that the 57.64 percent petition margin was "sufficiently adverse so as to induce cooperation" and stated an inability "to find any information that would discredit the selected AFA rate." Preliminary Results, 72 Fed.Reg. at 10,673-74.

On March 27, 2007, Gallant submitted a completed Q & V questionnaire to Commerce. Final Results, 72 Fed.Reg. at 52,066. Commerce rejected this questionnaire as untimely pursuant to 19 C.F.R. § 351.302 and returned it to Gallant on April 2, 2007. Id.; Letter from James Maeder, Director, Office 2, Office of AD/ CVD Operations, U.S. Department of Commerce, to Robert Gosselink, Trade Pacific PLLC, Re: Antidumping Duty Administrative Review on Certain Frozen Warmwater Shrimp from Thailand (April 2, 2007), P.R. 495. Gallant thereafter requested that Commerce not apply the petition margin as the AFA rate. See Gallant Ocean (Thailand) Co., Ltd. Corroboration Case Brief (April 16, 2007), at 1-2, C.R. 143. Gallant contended that Commerce erred in its preliminary formulation by: employing transaction-specific margins that were aberrational, reviewing sales from the mandatory respondent companies that did not corroborate the 57.64 percent AFA rate, and selecting sales for comparison that were atypical. Id. at 2-4. According to Gallant, the sales that Commerce used did not represent normal transactions of Good Luck Product, Thai I-Mei and Pakfood because of their product type, sale quantities, or costs. Id.

On September 12, 2007, Commerce published its final determination formally assigning the 57.64 percent AFA rate to Gallant and the other non-cooperating companies. Final Results, 72 Fed.Reg. at 52,068. Commerce reiterated its preliminary findings that: Gallant had not acted to the best of its ability, an adverse inference was warranted in selecting facts otherwise available, 57.64 percent was the highest margin alleged in the petition as adjusted, and the AFA rate was sufficiently adverse to induce cooperation. Id. In addition to its initial efforts to corroborate the 57.64 percent petition rate, Commerce undertook additional corroboration in support of the Final Results. Id. at 52,068; Memorandum from Stephen J. Claeys, Deputy Assistant Secretary for Import Administration, U.S. Department of Commerce, to David M. Spooner, Assistant Secretary for Import Administration, U.S. Department of Commerce, Re: Issues and Decision Memorandum for the Antidumping Duty Administrative Review on Certain Frozen Warmwater Shrimp from Thailand—August 2004, through January 31, 2006 (September 5, 2007), P.R. 532 ("Final Decision Memo.") cmt. 2, at 8-9, n. 3.

Prior to formalizing the 57.64 percent AFA rate, Commerce concluded that the petition margin was sufficiently corroborated. Id. cmt. 2, at 8. Commerce stated that the "margin falls within the range of transaction-specific margins calculated for the mandatory respondents". Id. at 6; Memorandum from Brianne Riker, Analyst, Office 2, AD/CVD Operations, U.S Department of Commerce, to The File through Shawn Thompson, Program Manager, Office 2, AD/CVD Operations, Re: Final Results of the 2004-2006 Review of Certain Frozen Warmwater Shrimp from Thailand: Corroboration Analysis (September 5, 2007), C.R. 152, P.R. 535 ("Final Corroboration Analysis"), at 1. The Department determined that the volumes of the transactions it examined were neither atypical nor had an aberrational effect on the margin calculations. Id. at 2. Commerce explained that that the AFA rate was based on both representative transactions and official United States import statistics. Final Decision Memo. cmt. 2 at 8-9. Dissatisfied with the 57.64 percent AFA rate, Gallant timely initiated the present challenge to that aspect of the Final Results.

III STANDARD OF REVIEW

This court will uphold an administrative antidumping determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." SKF United States v. INA Walzlager Schaeffler KG, 180 F.3d 1370, 1374 (Fed.Cir.1999) (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)). "Substantial evidence is more than a mere scintilla. It means such relevant evidence as a reasonable mind might accept as adequate to support a conclusion." Aimcor, Ala. Silicon, Inc. v. United States, 154 F.3d 1375, 1378 (Fed.Cir.1998) (quoting Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927, 933 (Fed.Cir.1984))....