Slip Op. 09-10 

UNITED STATES COURT OF INTERNATIONAL TRADE 

______________________________ 

 : 

GALLANT OCEAN : 

(THAILAND) CO., LTD., : 

 : 

 Plaintiff, : 

 : Before: WALLACH, Judge 

 v. : Court No.: 07-00360 

 : 

UNITED STATES, : PUBLIC VERSION 

 : 

 Defendant. : 

______________________________: 

[Plaintiff’s Motion for Judgment on the Agency Record is DENIED and the Agency’s 

Determination is AFFIRMED.] 

 Dated: January 30, 2009 

Trade Pacific PLLC (Robert G. Gosselink, Jonathan Michael Freed, and Ji Hyun Tak) 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 
2 

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 
3 

(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 IMei 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. 

                                                            1 The Pakfood Public Company Limited affiliated subsidiaries are Asia Pacific (Thailand) Company 

Limited, Chaophraya Cold Storage Company Limited, Okeanos Company Limited, and Takzin Samut Company 

Limited (collectively “Pakfood”). Certain Frozen Warmwater Shrimp From Thailand: Preliminary Results and 

Partial Rescission of Antidumping Duty Administrative Review, 72 Fed. Reg. 10,669, 10,670 (March 9, 2007) 

(“Preliminary Results”).
4 

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 I-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-
5 

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 
6 

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)). “The 

possibility of drawing two inconsistent conclusions from the evidence does not prevent an 

administrative agency’s finding from being supported by substantial evidence.” Consolo v. Fed. 

Mar. Comm’n, 383 U.S. 607, 620, 86 S. Ct. 1018, 16 L. Ed. 2d 131 (1966). In determining the 

existence of substantial evidence, a reviewing court must consider “the record as a whole, 

including evidence that supports as well as evidence that ‘fairly detracts from the substantiality 

of the evidence.’” Huaiyin Foreign Trade Corp. (30) v. United States, 322 F.3d 1369, 1374 (Fed. 

Cir. 2003) (quoting Atl. Sugar, Ltd. v. United States, 744 F.2d 1556, 1562 (Fed. Cir. 1984)). 
7 

While the court must consider contradictory evidence, “the substantial evidence test does not 

require that there be an absence of evidence detracting from the agency’s conclusion, nor is there 

an absence of substantial evidence simply because the reviewing court would have reached a 

different conclusion based on the same record.” Cleo Inc. v. United States, 501 F.3d 1291, 1296 

(Fed. Cir. 2007) (citing Universal Camera Corp. v. NLRB, 340 U.S. 474, 487–88, 71 S. Ct. 456, 

95 L. Ed. 456 (1951)). 

When evaluating Commerce’s statutory interpretation the court uses a two step analysis, 

first examining whether Congress has “directly spoken to the precise question at issue.” 

Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842, 104 S. Ct. 2778, 81 

L. Ed. 2d 694 (1984). If this is the case, courts then must “give effect to the unambiguously 

expressed intent of Congress.” Id. at 842–43; see Household Credit Servs. v. Pfennig, 541 U.S. 

232, 239, 124 S. Ct. 1741, 158 L. Ed. 2d 450 (2004). If instead Congress has left a “gap” for 

Commerce to fill, the agency’s regulation is “given controlling weight unless [it is] arbitrary, 

capricious, or manifestly contrary to the statute.” Chevron, 467 U.S. at 843–44. Additionally, in 

matters of statutory construction this court will show “great deference to the interpretation given 

the statute by the officers or agency charged with its administration.” Udall v. Tallman, 380 U.S. 

1, 16, 85 S. Ct. 792, 13 L. Ed. 2d 616 (1965). The agency’s construction need not be the only 

reasonable one or even the same result this court would have reached had the question arisen in 

the first instance in a judicial proceeding. Id. (citing Unemployment Comp. Comm’n of Alaska 

v. Aragon, 329 U.S. 143, 153, 67 S. Ct. 245, 91 L. Ed. 136 (1946)). It is not the court’s duty to 

“weigh the wisdom of, or to resolve any struggle between, competing views of the policy 

interest, but rather to respect legitimate policy choices made by the agency in interpreting and 
8 

applying the statute.” Suramericana de Aleaciones Laminadas, C.A. v. United States, 966 F.2d 

660, 665 (Fed. Cir. 1992). 

IV 

DISCUSSION 

A 

Overview Of The AFA Statute

Commerce is entitled to make adverse inferences in its antidumping duty investigation 

when it determines that an interested party has “failed to cooperate by not acting to the best of its 

ability to comply with a request for information.” 19 U.S.C. § 1677e(b). The AFA rate may be 

generated using information from: “(1) the petition, (2) a final determination in the investigation 

. . . , (3) any previous review . . . , or (4) any other information placed on the record.” Id. The 

Department selects a proxy rate that represents a “reasonably accurate estimate of the 

respondent’s actual rate, albeit with some built-in increase intended as a deterrent to noncompliance.” F. Lii De Cecco Di Filippo Fara S. Martino S.p.A. v. Borden, Inc., 216 F.3d 1027, 

1032 (Fed. Cir. 2000) (“De Cecco”). Commerce is afforded extraordinary but not unlimited 

deference in formulating this AFA rate, as the Federal Circuit explains: 

In the case of uncooperative respondents, the discretion granted by the statute 

appears to be particularly great . . . . [T]his court has repeatedly held that 

Commerce’s special expertise makes it the “master” of the anti-dumping law, 

entitling its decisions to great deference from the courts. Thus, factual 

determinations supporting anti-dumping margins are best left to the agency’s 

expertise. . . . Commerce is in the best position, based on its expert knowledge of 

the market and the individual respondent, to select adverse facts that will create 

the proper deterrent to non-cooperation with its investigations and assure a 

reasonable margin. Commerce’s discretion in these matters, however, is not 

unbounded. . . . [T]he purpose of section 1677e(b) is to provide respondents with 

an incentive to cooperate, not to impose punitive, aberrational, or uncorroborated 

margins. 

Id. at 1032 (citations omitted). 
9 

In formulating an AFA rate using secondary information, Commerce must, “to the extent 

practicable, corroborate that information from independent sources that are reasonably at [its] 

disposal.” 19 U.S.C. § 1677e(c). “The statute does not prescribe any methodology for 

corroborating secondary information.” Mittal Steel Galati S.A. v. United States, 491 F. Supp. 2d 

1273, 1278 (CIT 2007). Legislative history and implementing regulations provide that such 

information is to have “probative value.” Id. at 1275 (citing Uruguay Round Agreements Act 

Statement of Administrative Action, H.R. Doc. No. 103-316, at 870 (1994), reprinted in 1994 

U.S.C.C.A.N. 4040, 4199 (“SAA”)); 19 C.F.R. § 351.308(d). “Commerce assesses the probative 

value of secondary information by examining the reliability and relevance of the information to 

be used.” Mittal Steel, 491 F. Supp. at 1278. Commerce may in its corroboration examine: 

“published price lists, official import statistics and customs data, and information obtained from 

parties during the instant investigation or review.” SAA at 870, 1994 U.S.C.C.A.N. at 4199; 19 

C.F.R. § 351.308(d). “Commerce’s determination of [AFA] rates must be legal, reasonable, and 

supported by evidence, but is unfettered by absolute numerical limitations.” Universal Polybag 

Co., Ltd. v. United States, 577 F. Supp. 2d 1284, 1301 (CIT 2008). 

B 

The Parties’ Contentions

Gallant presents a narrow question for review. As it explains: 

Gallant Ocean does not dispute that it should have responded to the Commerce 

Department’s request for Q&V data and that it is appropriate for Gallant Ocean’s 

rate to be based on adverse facts available. The record shows, however, that in 

the Final Results, the transaction-specific margins for the mandatory respondents 

that Commerce attempted to use to corroborate the petition were aberrational, 

punitively high, and did not reflect the margins of the mandatory respondents. 

Memorandum of Points and Authorities in Support of Gallant Ocean’s Motion for Judgment 

Upon the Agency Record (“Plaintiff’s Motion”) at 5. “By failing to adequately corroborate” the 
10 

57.64 percent AFA rate, Gallant contends that “Commerce ignored the judicial mandate that the 

AFA rate have a rational relationship to commercial practices in the particular industry.” Id. at 7. 

Gallant argues that “Commerce focused its analysis on whether information showed that the 

AFA margin it selected had been discredited rather than sufficiently questioning whether the 

sales used for corroboration purposes were ‘normal,’ representative sales.” Id. at 15 (emphasis 

removed). Defendant counters that the 57.64 percent AFA rate is supported by substantial 

evidence.2

C 

The AFA Rate Is Supported By Substantial Evidence And Is In Accordance With Law

1 

Commerce Acted In Accordance With Law 

Commerce lawfully assigned an AFA rate to Gallant. After Gallant missed two deadlines 

for compliance, Commerce determined that Gallant did not act to the best of its ability in failing 

to timely “respond to the Department’s requests for information.”3 Preliminary Results, 72 Fed. 

Reg. at 10,673. Gallant contends that its tardy submission of the questionnaire to Commerce 

precludes imposition the 57.64 percent AFA rate. See Reply by Gallant Ocean (Thailand) Co., 

Ltd., to Defendant’s Response in Opposition to Plaintiff’s Rule 56.2 Motion for Judgment Upon 

the Agency Record (“Plaintiff’s Reply”) at 13–14. There is no evidence supporting Gallant’s 

                                                            2

 Defendant United States does not, and need not, counter Plaintiff Gallant Ocean (Thailand) Co., Ltd.’s 

(“Gallant”) lone reference to the “arbitrary, capricious, or . . . abuse of discretion” standard. See Memorandum of 

Points and Authorities in Support of Gallant Ocean’s Motion for Judgment on the Agency Record (“Plaintiff’s 

Motion”) at 7. This court has recognized that the standard may merely rephrase the “substantial evidence and in 

accordance with law” standard. See Fujian Mach. & Equip. Imp. & Exp. Corp v. United States, 25 CIT 1150, 1156, 

178 F. Supp. 2d 1305 (2001). Moreover, the Federal Circuit holds that AFA rates are to be reviewed using the 

substantial evidence standard. Ta Chen Stainless Steel Pipe, Inc. v. United Sates, 298 F.3d 1330, 1335 (Fed. Cir. 

2002). 

3 The statute provides four bases for the application of determinations on the basis of the facts available. 19 

U.S.C. § 1677e(a)(2)(A)-(D). Gallant withheld “information that has been requested by the administering 

authority.” Id. § 1677e(a)(2)(A). Therefore, the court need not consider the “significantly impedes” basis, id. § 

1677e(a)(2)(C), that was additionally relied upon by the United States Department of Commerce (“Commerce”), 

Preliminary Results, 72 Fed. Reg. at 10,674. 
11 

claim that its failure to comply was “not deliberate and its attempts to cooperate, although 

untimely, were sincere.” 4 Id. at 11. Moreover, it is simply not relevant. Gallant concedes that it 

failed to timely submit the requested information, Plaintiff’s Motion at 5, thereby triggering the 

application of an AFA rate pursuant to 19 U.S.C. § 1677e(a)(2)(A), (b). 5 Once Commerce 

properly determines that a respondent is uncooperative, it need not factor the circumstances in 

formulating an AFA rate. See Heveafil Sdn. Bhd. v. United States, 58 Fed. Appx. 843, 849–50 

(Fed. Cir. 2003) (unpublished) (“While the antidumping statute distinguishes between 

respondents who have not cooperated and those who have, neither the statute nor the pertinent 

regulations address the weight to be given to different degrees of cooperation. . . . [T]here is no 

established formula requiring less adverse margins when respondents have been partially 

cooperative.”). Similarly, Gallant’s position that “it had absolutely nothing to gain from its own 

lack of cooperation”, Plaintiff’s Reply at 14,6

 is both unsupported in the record and irrelevant in 

the formulation of an AFA rate for a non-cooperating respondent.7

 

                                                            4

 The court does not view Commerce’s returning of Gallant’s untimely questionnaire as support for this 

proposition. See Letter from James Maeder, Director, Office 2, AD/CVD Operations, U.S. Department of 

Commerce, to Robert Gosselink, Trade Pacific PLLC, Re: Antidumping Duty Administrative Review of Certain 

Frozen Warmwater Shrimp from Thailand (April 2, 2007), Public Record (“P.R.”) 495. 

5 Gallant cannot claim that its untimely attempt to cooperate prevents the imposition of any adverse facts 

available (“AFA”) rate because “the statute does not contain an intent element . . . . The statutory trigger for 

Commerce’s consideration of an adverse inference is simply a failure to cooperate to the best of respondent’s ability, 

regardless of motivation or intent.” Nippon Steel Corp. v. United States, 337 F.3d 1373, 1383 (Fed. Cir. 2003). 

6 Gallant misplaces reliance on Mittal Steel Galati S.A. v. United States, 491 F. Supp. 2d 1273 (CIT 2007). 

There, the court sustained an AFA rate greater than the margin that Commerce preliminarily selected after 

“Plaintiff’s conduct led Commerce to infer that Plaintiff’s actual dumping rate was higher.” Id. at 1278. However, 

Mittal Steel does not hold that the extent to which a respondent benefits from its failure to cooperate is relevant in 

the AFA formulation, as Gallant implies. See Reply by Gallant Ocean (Thailand) Co., Ltd., 

to Defendant’s Response in Opposition to Plaintiff’s Rule 56.2 Motion for Judgment on the Agency Record 

(“Plaintiff’s Reply”) at 13–14. 

7 The court does not construe legislative history that an objective of the AFA rate is to “ensure that the 

party does not obtain a more favorable result by failing to cooperate than if it had cooperated fully” as making the 

potential gain to an uncooperative respondent relevant in the AFA rate formulation. Uruguay Round Agreements 

Act Statement of Administrative Action, H.R. Doc. No. 103-316, at 870 (1994), reprinted in 1994 U.S.C.C.A.N. 

4040, 4199. 
12 

2 

The 57.64 Percent AFA Rate Is Supported by Substantial Evidence 

 Commerce formulated the AFA rate by selecting the highest margin alleged in the 

petition, as adjusted. Preliminary Results, 72 Fed. Reg. at 10,673 The AFA statute explicitly 

authorizes Commerce to use the “petition” when a respondent is uncooperative. 19 U.S.C. § 

1677e(b)(1). Gallant alleges that Commerce improperly selected the 57.64 percent petition 

margin based upon an absence of information to discredit the rate. Plaintiff’s Motion at 15. The 

Department acknowledges initially taking this approach. Preliminary Results, 72 Fed. Reg. at 

10,674; Final Decision Memo. cmt. 2, at 8. Commerce may begin its AFA rate selection by 

ascertaining whether the petition margin is discredited, provided that the rate is ultimately 

supported by substantial evidence. This starting point is appropriate where Commerce has 

incomplete information due to non-compliance. See Shanghai Taoen Int’l Trading Co., Ltd. v. 

United States, 29 CIT 189, 199, 360 F. Supp. 2d 1339 (2005). “To corroborate the petition 

margin,” the Department compared it to the rates calculated for Good Luck Product, Thai I-Mei 

and Pakfood, and found that the petition “rate fell within the range of individual transactions 

margins calculated for the mandatory respondents.” Preliminary Results, 72 Fed. Reg. at 10,673. 

After reviewing actual sales of Good Luck Product and Pakfood, Commerce found 

multiple transaction-specific margins “within the range of the AFA rate, but slightly lower” and 

several others “higher than 57.64 percent.” 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 

Rate for the Final Results in the 2004-2006 Administrative Review of Certain Frozen 

Warmwater Shrimp from Thailand (September 5, 2007), C.R. 153 (“Final Corrobroation 
13 

Memo.”), at 1. With respect to Thai I-Mei, Commerce excluded a single outlier,8

 and found the 

remaining margins within the range of the AFA rate. Preliminary AFA Corroboration Memo. at 

1. In all, Commerce relied upon nineteen transactions of Good Luck Product, Thai I-Mei and 

Pakfood within the range of the petition margin to support the 57.64 percent AFA rate. See Final 

Corroboration Analysis at 1, Attachments 2–4. This data includes sales identified by Commerce 

subsequent to the Preliminary Results in response to Gallant’s concerns. Final Corrobration 

Memo at 1.9

 [[ The margins for the nineteen transactions ranged from approximately 50 percent 

to 130 percent. Final Corroboration Analysis, Attachments 2–4. ]] 

This court has sustained Commerce’s comparison to transaction-specific margins of other 

respondents as an appropriate means to corroborate AFA rates. See, e.g., NSK Ltd. v. United 

States, 28 CIT 1535, 1561–62, 346 F. Supp. 2d 1312 (2004), aff’d, 481 F.3d 1355 (Fed. Cir. 

2007); Shanghai Taoen, 29 CIT at 199. The 57.64 percent AFA rate was “corroborated by actual 

sales data.” Ta Chen Stainless Steel Pipe, Inc. v. United Sates, 298 F.3d 1330, 1339 (Fed. Cir. 

2002) (“Ta Chen”). Commerce compared this petition rate with multiple actual sales, whereas 

                                                            8 Gallant argues that the lack of analysis supporting the exclusion of this one transaction establishes the 

57.64 percent AFA rate being unsupported by substantial evidence. Plaintiff’s Motion at 11 n.3; Plaintiff’s Reply at 

4. This Thai I-Mei Frozen Foods Co., Ltd. (“Thai I-Mei”) margin was [[ extremely high, many ]] times the petition 

margin. 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. The court 

finds that its exclusion by Commerce is self-explanatory and does not render the petition rate unsubstantiated. 

9

 The seven additional transaction-specific margins percents are [[ a little higher and a little lower than the 

57.64 AFA rate. ]] 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 (September 5, 2007), C.R. 153, at 1. 
14 

the Federal Circuit in Ta Chen sustained an AFA rate for an uncooperative respondent that was 

based upon a single transaction. Id. Gallant argues that because Ta Chen involves sales 

information of the plaintiff, as opposed to other companies, the holding is not relevant for 19 

U.S.C. § 1677e(c) corroboration purposes. Plaintiff’s Reply at 10–13 (citing Ta Chen Stainless 

Steel Pipe, Inc. v. United States, 24 CIT 841, 846 (2000)). The court does not agree that Ta

Chen is distinguishable on this basis and instead finds the precedent applicable to AFA rate 

corroboration using actual sales data, irrespective of whether those transactions involve the 

plaintiff or secondary information under 19 U.S.C. § 1677e(c). See Ta Chen, 298 F.3d at 1339–

40. 

Commerce sufficiently corroborated the 57.64 percent AFA rate. The statute qualifies 

the obligation as “to the extent practical”, 19 U.S.C. § 1677e(c); “the corroboration requirement 

itself is not mandatory when not feasible.” NSK, 28 CIT at 1561–62. After comparing the rate to 

industry statistics, Commerce concluded that the petition margin “was not based on a unique or 

unusual set of circumstances that would render it unrepresentative of the experience of a typical 

shrimp importer from Thailand.” Final Decision Memo. cmt. 2 at 8. Commerce thereby 

“assure[d] itself that the margin it applie[d] is relevant, and not outdated, or lacking a rational 

relationship to” Gallant. Ferro Union, Inc. v. United States, 23 CIT 178, 205, 44 F. Supp. 2d 

1310 (1999). In formulating the 57.64 percent AFA rate, Commerce neither “overreach[ed] 

reality,” Ta Chen, 298 F.3d at 1340 (citation omitted), nor made a mere assumption, Ferro 

Union, 23 CIT at 205. 

The nineteen transactions within range of the petition margin and compared to industry 

statistics demonstrate that Commerce did not improperly “‘cherry pick’ select sales arbitrarily” 

as a means of corroboration. NSK, 28 CIT at 1556 (citation omitted). The 57.64 percent AFA 
15 

rate has both a “relationship to commercial practices in the particular industry,” D & L Supply 

Co. v. United States, 113 F.3d 1220, 1223–24 (Fed. Cir. 1997), and a “basis in reality,” De 

Cecco, 216 F.3d at 1034. The AFA rate was therefore not selected solely and impermissibly for 

punitive purposes as Gallant alleges. See Plaintiff’s Motion at 7. “While Commerce may have 

chosen the . . . rate with an eye toward deterrence, Commerce acts within its discretion so long 

as the rate chosen has a relationship to the actual sales information available.” Ta Chen, 298 F.3d 

at 1340. 

Gallant contends that Commerce erred in failing to corroborate the AFA rate “with 

representative margins of the mandatory respondents.” Plaintiff’s Motion at 13. Gallant 

emphasizes that the nineteen transaction-specific margins used comprise only [[ a very small 

percentage ]] of all sales reported by Good Luck Product, Thai I-Mei10 and Pakfood for the 

review period. Id. at 12. Gallant argues that because this fraction does not “represent a 

significant portion of the transactions that occurred during the period of review,” the sales within 

range of the petition rate should be disregarded as “high-margin transactions [that] are the 

exception rather than the rule.” Id. at 10–11 (quoting PAM, S.p.A. v. United States, 495 F. Supp. 

2d 1360, 1371–72 (CIT 2007) (citations omitted) (emphasis removed)). However, this court 

recently sustained an AFA margin based upon actual sales of cooperating respondents being “in 

a range above and near the AFA rate chosen,” notwithstanding an argument that the “low 

number” of these transactions constituted “evidence of its unreliability.” Universal Polybag, 577 

F. Supp. 2d at 1298–99, 1301. Defendant is correct that “Ta Chen now controls this issue.” 

Defendant’s Opposition to Plaintiff’s Motion for Judgment Upon the Agency Record 

(“Defendant’s Opposition”) at 13. Ta Chen establishes that Commerce need not consider the 

                                                            10 Gallant calculates the two Thai I-Mei sales used for corroboration as representing “a scant [[ very small 

]] percent of all Thai I-Mei sales.” Plaintiff’s Motion at 11. 
16 

portion of sales represented by transaction-specific margins used for corroboration. See Ta 

Chen, 298 F.3d at 1339–40; Pam, S.p.A. v. United States, Slip Op. 08-75, 2008 Ct. Int’l Trade 

LEXIS 73, at *11 (July 9, 2008) (“Pam II”). 

Gallant claims that Commerce should not have used certain Pakfood and Good Luck 

Product sales because their atypical volumes rendered them aberrational.11 See Plaintiff’s Motion 

at 18–20. Prior to the Final Results, Commerce in response undertook detailed analyses of each 

corroborating margin and “found they were based on representative transactions.” Final 

Corroboration Analysis at 2, Attachments 1–4. The Department concluded that: 

Good Luck Product and Pakfood reported multiple U.S. sales transactions with 

volumes in the same range or smaller than the transactions used in the 

corroboration analysis . . . . Therefore, we do not find that the quantities in 

question are unusually smaller or atypical. In addition, we note that the margins 

varied greatly for transactions of similar volumes to those used for corroboration 

purposes. Thus, we disagree with Gallant Ocean that the margins calculated for 

the sales transactions in question were driven by the volume of those sales. 

Final Decision Memo. cmt. 2, at 9 (citation omitted). 

This volume analysis supports the 57.64 percent petition margin being selected as the AFA rate. 

As with the number of corroborating transactions, there is no numerical requirement with respect 

to the volumes of those sales. Universal Polybag, 577 F. Supp. 2d at 1299–1301 (rejecting an 

argument that “the low . . . volume of individual transaction margins” used for corroboration 

invalidated the AFA rate). 

Gallant challenges Commerce’s use of the Pakfood transactions because half “were not 

normal sales of subject merchandise, but instead were [[ Product A ]].” Plaintiff’s Motion at 16. 

Gallant claims that they [[ are priced differently ]] and therefore should not be used for AFA rate 

                                                            11 Gallant challenges one Good Luck Product sale as being a shipment of only [[ a small weight ]] and all 

twelve Pakfood sales for comprising only [[ a very small percentage ]] of all shrimp that Pakfood sold to the United 

States during the period of review. Plaintiff’s Motion at 18, 19–20. 
17 

corroboration purposes. Id. Commerce initially excluded [[ Product A ]] based on the absence of 

a reasonable methodology to include such sales, but expressed an expectation to reexamine the 

issue. 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 (December 23, 2004), attached Issues and Decision Memorandum 

for the Antidumping Duty Investigation of Certain Frozen and Canned Warmwater Shrimp from 

Thailand cmt. 4. Commerce subsequently stated that it would use Pakfood’s sales of [[ Product 

A ]] for comparison purposes, (Preliminary Results, 72 Fed. Reg. at 10,674), despite the 

merchandise not being identical. 

Inclusion of Pakfood’s sales of [[ Product A ]] does not detract from the substantial 

evidence supporting the 57.64 percent AFA rate. Commerce addressed this concern by 

referencing the absence of evidence to indicate such sales being under-representative and 

emphasizing that it “did not rely solely on margins calculated for Pakfood,” but those of the 

other mandatory respondents that Gallant did not allege were of “unusual merchandise”. Final 

Decision Memo. cmt. 2 at 9. Gallant concedes that [[ Product A is included within the scope of 

the order ]]. Plaintiff’s Motion at 16. More compelling, however, is Commerce’s specific 

matching in advance of the Final Results, of the merchandise types. Preliminary Results, 72 Fed. 

Reg. at 10,674.12 

Commerce does not need to replicate the precise business activities of a non-cooperating 

respondent in formulating the AFA rate. See Nat’l Candle Ass’n v. United States, 29 CIT 365, 

372, 366 F. Supp. 2d 1318 (2005) (Commerce not required “to apply product-specific margins”); 

                                                            12 Gallant asks the court to disregard this explanation by Commerce as improperly post hoc. Plaintiff’s 

Reply at 7. However, a statement in the Preliminary Results remains part of the record irrespective of whether it is 

reiterated by Commerce in subsequent documentation formalizing the AFA rate. 
18 

Reiner Brach GMBH & Co. KG v. United States, 26 CIT 549, 565–66, 206 F. Supp. 2d 1323, 

1338–39 (2002) (AFA rate need not consider a non-cooperating respondent’s unique “product 

line” and “sales revenue”). Therefore, Commerce did not err in corroborating the AFA rate with 

either the Pakfood margins involving [[ Product A ]] or the one other Pakfood transaction and 

two Good Luck Product sales that consisted of [[ Product B ]]. As with [[ Product A ]], the 

antidumping order scope encompasses [[ Product B ]]. Preliminary Results, 72 Fed. Reg. at 

10,671–72. 

Gallant acknowledges that Commerce responded to some of the concerns raised during 

the administrative process. Plaintiff’s Motion at 6. Gallant contends that the Department 

improperly ignored a specific challenge to four Pakfood transactions of shrimp sold in onepound bags. Id. at 17; Plaintiff’s Reply at 9. Gallant believes that these four sales had unusually 

high normal values, as it claims to be demonstrated by them having the highest total costs of any 

of Pakfood’s products sold during the period of review. Id. Nevertheless, Commerce analyzed 

every Pakfood transaction and found each to be sufficiently representative in advance of the 

Final Results. Final Corroboration Analysis at 2, and Attachments 1, 3. Even if the one-pound 

bag sales are not used for corroboration, the fifteen remaining margins comprise substantial 

evidence supporting the 57.64 percent AFA rate in accordance with Ta Chen. For these reasons, 

despite Commerce’s failure to directly address Gallant’s one-pound bag argument, the selection 

of the petition margin as the AFA rate is supported by substantial evidence. 

Gallant attempts to discredit the 57.64 percent AFA rate with reliance on the 4.31 percent 

rate that Commerce calculated for the cooperating selected respondents. Plaintiff’s Motion at 21–

22 (citing Final Results, 72 Fed. Reg. at 52,069). However, the margin ultimately applied to the 

cooperating respondents does not cast doubt upon an AFA rate that is supported by substantial 
19 

evidence. See Universal Polybag, 577 F. Supp. 2d at 1298–1301 (rejecting argument based on a 

“large gap between the petition rate and the dumping margin calculated by Commerce for any 

cooperative respondents” (citation omitted)). Moreover, the Federal Circuit upheld an AFA rate 

where the corroborative data reflects actual sales as opposed to the rate ultimately imposed for 

cooperating respondents. See Ta Chen, 298 F.3d at 1340. 

Gallant also attempts to support its position with reference to the overall dumping 

margins for the mandatory respondents ranging between 2.58 and 10.75 percent. Plaintiff’s 

Motion at 10–11 (citing Final Results, 72 Fed. Reg. at 52,069). Gallant claims that, “[t]herefore, 

it is apparent that any transaction margins higher than (or slightly lower) than 57.64 percent are 

aberrant.” Id. at 10–11. However, as Defendant observes, necessarily “there will be sales above 

and below the average.” Defendant’s Opposition at 12. Furthermore, Gallant’s position would 

give companies having transactions above the range of the mandatory respondents a disincentive 

to cooperate with Commerce so that they can obtain the benefit of a lower margin. 

Gallant proposes alternate approaches that it believes Commerce should have employed 

in formulating the AFA rate. Gallant suggests that Commerce articulate both the criteria for 

determining why margins are excluded and its application to each transaction-specific margin in 

the corroboration analysis.13 Plaintiff’s Motion at 20. Gallant details methodologies it believes 

to be appropriate. See id. at 20–22 (the highest margin within a band that represents at least ten 

percent of the margins);14 Plaintiff’s Reply at 5–6 (the highest margin within one standard 

deviation of the mean). However, because of Gallant’s “noncooperation,” it “cannot pick and 

                                                            13 Gallant finds support for this approach in Nat’l Steel Corp. v. United States, 18 CIT 1126, 870 F. Supp. 

1130 (1994). Plaintiff’s Motion at 20. The court there remanded for Commerce to articulate criteria as Gallant 

proposes. Nat’l Steel Corp., 18 CIT at 1133. However, as Defendant points out, Nat’l Steel Corp. predates Ta Chen. 

Defendant’s Opposition to Plaintiff’s Motion for Judgment Upon the Agency Record (“Defendant’s Opposition”) at 

13. Commerce is now able to corroborate AFA margins using actual transaction data rather than having to articulate 

criteria for determining when rates are aberrant. See Ta Chen, 298 F.3d at 1339–40. 
20 

choose which rate it feels would be more appropriate in the circumstance.” NSK, 28 CIT at 

1562. 

Gallant hindered Commerce’s antidumping investigation by failing to timely submit the 

Q&V questionnaire and was warned about the consequences of non-compliance. “Ultimately, 

respondents have the responsibility of creating an adequate record.” Id. at 1558. AFA “cases 

operate in a world of less-than-perfect information.” PAM, S.p.A. v. United States, 577 F. Supp. 

2d 1318, 1321 (CIT 2008) (denying reconsideration of Pam II by rejecting the argument that Ta 

Chen is undermined by Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 171 L. Ed. 2d 570, 76 

U.S.L.W. 4603 (2008)15). Commerce need not speculate as to the actual rate had the respondent 

cooperated. See SAA at 870, 1994 U.S.C.C.A.N. at 4199. Commerce is only required to 

formulate an AFA rate that is supported by substantial evidence and in accordance with law. Ta 

Chen, 298 F.3d at 1335. This standard is met by the 57.64 percent AFA rate that Commerce 

applied to Gallant. 

V 

CONCLUSION 

 

For the above stated reasons, Commerce’s determination in Certain Frozen Warmwater 

Shrimp from Thailand: Final Results and Final Partial Rescission of Antidumping Duty 

                                                                                                                                                                                                14 Gallant references three 1999 antidumping proceedings in which Commerce employed this methodology. 

Plaintiff’s Motion at 21. Defendant in response informs the court that “[t]his is not current practice. Commerce has 

since established a practice of using actual transaction specific margins of other respondents for corroboration.” 

Defendant’s Opposition at 16. The court need not review a methodology previously employed by Commerce to 

formulate an AFA rate because Commerce has “broad discretion to change its methodology,” Nat’l Steel Corp., 18 

CIT at 1130, provided that “a methodology consistent with its statutory authority” is ultimately employed, AlliedSignal Aerospace Co. v. United States, 28 F.3d 1188, 1191 (Fed. Cir. 1994). 

15 The U.S. Supreme Court held that the maximum award of punitive damages allowed under maritime law 

was equal the jury’s award of compensatory damages. Exxon Shipping Co. v. Baker, 128 S. Ct. 2605, 171 L. Ed. 2d 

570, 76 U.S.L.W. 4603 (2008). 
21 

Administrative Review, 72 Fed. Reg. 52,065 (September 12, 2007) is AFFIRMED. 

         __/s/ Evan J. Wallach____

 Evan J. Wallach, Judge 

Dated: January 30, 2009 

New York, New York