Case Information

SHANTOU RED GARDEN FOODSTUFF CO., LTD., Plaintiff, v. UNITED STATES, Defendant.

Court No. 05-00080

United States Court of International Trade

Oct. 23, 2012

Slip Op. 12-133

STANCEU, Judge:

fits resulting from countervailable subsidy programs.")

Essar also challenges Commerce's AFA rate calculation as punitive. Pl. Br. 39. The court, however, does not believe this issue has merit. Essar specifically argues that the AFA rate is punitive "considering that in past reviews Commerce never found Essar to have used the [CIP] program at issue." Pl. Br. 39 (citing Am. Silicon Tech. v. United States, 26 CIT 1216, 240 F.Supp.2d 1306 (2002) ("American Silicon")). This therefore appears to be an argument about the sufficiency of Commerce's corroboration, not whether the selected rate is punitive. If the latter, the court would have expected far more developed argumentation and analysis of the other available rates and an explanation why the selected rate represents an unreasonable choice. See, e.g., American Silicon, 240 F.Supp.2d at 1312-1313 (concluding that AFA rate was punitive by comparing assigned rate to other calculated rates from prior reviews). Essar never provides such an analysis, leaving the court to develop its own theory of why the selected rate may be punitive, effectively litigating the issue for Essar. This the court will not do. See Home Prods. Int., Inc. v. United States, 36 CIT —, —, 837 F.Supp.2d 1294, 1301 (2012) (quoting United States v. Zannino, 895 F.2d 1, 17 (1st Cir.1990) ("[I]ssues adverted to in a perfunctory manner, unaccompanied by some effort at developed argumentation, are deemed waived. It is not enough merely to mention a possible argument in the most skeletal way, leaving the court to do counsel's work, create the ossature for the argument, and put flesh on its bones.")).

Again, the central issue here is corroboration. Commerce must corroborate Essar's AFA rate or explain why corroboration is not practicable. See 19 U.S.C. § 1677e(c).

III. CONCLUSION

The court cannot sustain Commerce's AFA rate calculation in its current posture. Accordingly, the court remands to Commerce to address the corroboration requirement under 19 U.S.C. § 1677e(c). It is hereby

ORDERED that this action is remanded to Commerce to address the issue of corroboration; it is further

ORDERED that Commerce is to file its remand results on or before December 14, 2012; and it is further

ORDERED that the parties are to file their comments (limited to 10 pages), if necessary, no later than 45 days after Commerce files its remand results with the court.

John J. Kenkel, J. Kevin Horgan, and Gregory S. Menegaz, DeKieffer & Horgan, PLLC, of Washington, D.C., for plaintiff.

Patricia M. McCarthy, Assistant Director and Stephen C. Tosini, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for defendant. With them on the brief were Stuart F. Delery, Acting Assistant Attorney General and Jeanne E. Davidson, Director. Of counsel on the brief was Melissa M. Brewer, Attorney, Office of the Chief Counsel for Import Administration, U.S. Department of Commerce, of Washington, D.C.

OPINION

STANCEU, Judge:

This case arose from final determinations that the International Trade Administration of the U.S. Department of Commerce ("Commerce" or the "Department") issued in an antidumping duty investigation on certain frozen warmwater shrimp (the "subject merchandise") from the People's Republic of China ("China" or the "PRC"). See Notice of Final Determination of Sales at Less Than Fair Value: Certain Frozen & Canned Warmwater Shrimp From the People's Republic of China, 69 Fed.Reg. 70,997 (Dec. 8, 2004) ("Final Determination"); Notice of Amended Final Determination of Sales at Less Than Fair Value & Antidumping Duty Order: Certain Frozen Warmwater Shrimp from the People's Republic of China, 70 Fed.Reg. 5,149 (Feb. 1, 2005) ("Amended Final Determination"). In the investigation, Commerce assigned to Shantou Red Garden Foodstuff Co., Ltd. ("Red Garden") a weighted average dumping margin of 27.89%. Final Determination, 69 Fed.Reg. at 71,003. Red Garden brought this action to contest the final determinations. Before the court is the Department's redetermination ("Remand Redetermination"), issued on April 27, 2012, in response to the court's decision in Shantou Red Garden Foodstuff Co. v. United States, 36 CIT —, 815 F.Supp.2d 1311, 1341–42 (2012) ("Red Garden"). See Final Results of Redetermination Pursuant to Shantou Red Garden Foodstuff Co., Ltd. v. United States, [] Court No. 05-00080, Slip Op. 12-07 (January 13, 2012), ECF No. 56 ("Remand Redetermination"). The Remand Redetermination assigned a 7.20% weighted average dumping margin to Red Garden. Id. at 16. Also before the court are plaintiff's comments on the Remand Redetermination, Pl.'s Comments on Final Results of Redetermination Pursuant to Remand (May 10, 2012), ECF No. 57 ("Pl.'s Comments"), and defendant's response to those comments, Def.'s Resp. to Pl.'s Comments upon the Remand Results (Jun. 12, 2012), ECF No. 58. Background of this litigation is set forth in the court's opinion in Red Garden, issued on January 13, 2012. See 36 CIT at —, 815 F.Supp.2d at 1314-15.

The court has reviewed the Remand Redetermination, plaintiff's comments thereon, and defendant's response. The court concludes that the decisions Commerce made in the Remand Redetermination comply with the court's order, with one exception. In determining a surrogate value for raw, head-on, shell-on shrimp obtained by Red Garden's suppliers, Commerce chose ranged data compiled by Devi Sea Foods, Ltd., an Indian shrimp processor that was a respondent in a parallel antidumping investigation of frozen shrimp from India, over data compiled by the Central Bank of Ecuador pertaining to shrimp exports from Ecuador and several other data sources. Remand Redetermination 6, 10-11. The only explanation Commerce gave for its rejection of the Ecuadorian data in favor of the Devi data was that "[i]t is the Department's practice1 to rely upon the primary surrogate country for all SVs [i.e., surrogate values] wherever possible." Id. at 10-11. Noting that "[t]he record of the investigation contains a suitable source to value the main input from a producer, Devi, of the identical merchandise in India as described above," Commerce determined "that it is unnecessary to look outside India, i.e., to Ecuador, for purposes of valuing the main input, head-on, shell-on shrimp." Id. at 11. Elsewhere, the Remand Redetermination states that "[i]n general, the Department prefers to use broad-market averages as opposed to data derived from a single producer" but qualifies this statement by adding that "when other competing sources for SV data are unreliable, such as in this case, the Department may resort to the use of company-specific data." Id. at 8. Here, there is no finding that the Ecuadorian data are unreliable.

The antidumping statute does not confine the choice of surrogate values to a single surrogate country. Tariff Act of 1930, § 223, 19 U.S.C. § 1677b(c)(1) (2006). Here, Commerce gave effect to what it described as a "practice" of using a single surrogate country, even though Commerce, in past cases, has departed from that course of action when it has concluded that better data were available from another country that qualified as a surrogate country. See, e.g., Issues and Decision Memorandum for Certain Frozen Fish Fillets from the Socialist Republic of Vietnam, A-552-801, at 11-12 (Mar. 9, 2009), available at http://ia.ita.doc.gov/frn/summary/vietnam/E9-5744-1.pdf (last visited Oct. 23, 2012) (calculating surrogate value for broken fish fillets using Indonesian import statistics despite Bangladesh be- ing the primary surrogate country for the investigation); Issues and Decision Memorandum for the Final Results and Final Partial Rescission of Certain Cut-to-Length Carbon Steel Plate from Romania, A-485-803, at 24-26 (Mar. 15, 2005), available at http://ia.ita.doc.gov/frn/summary/romania/E5-1127-1.pdf (last visited Oct. 23, 2012) (calculating surrogate value for limestone using Philippines import statistics despite choosing Egypt as the surrogate country for the investigation); Issues and Decision Memorandum for the Less Than Fair Value Investigation of Silicon Metal from the Russian Federation, A-821-817, at 19-20 (Feb. 3, 2003), available at http://ia.ita.doc.gov/frn/summary/russia/03-3408-1.pdf (last visited Oct. 23, 2012) (calculating surrogate value for wood charcoal using Thai import statistics despite choosing Egypt as the surrogate country for the investigation). Here, Commerce adhered to its practice without comparing the Ecuadorian countrywide data to the Devi company-specific data according to the general criteria it stated it was applying in the Remand Redetermination. Remand Redetermination 7 ("The Department prefers to use SVs that are publicly-available, broad-market averages, contemporaneous with the POI [i.e., period of investigation], specific to the input in question, and exclusive of taxes and exports.") (footnote omitted). The Devi data, unlike the Ecuadorian data, pertain to a single producer and therefore are not a broad market average. Without a specific comparison of the Ecuadorian and the Devi data according to this criterion and the other criteria Commerce has identified, the court is not able to state that the choice was based on a fair comparison of the two data sets on the record. Commerce is required to value a factor of production according to the "best available information." 19 U.S.C. § 1677b(c)(1).

Nevertheless, the court determines that plaintiff has waived any objection to the Department's decision to choose the Devi data over the Ecuadorian data by declining to object to this decision and by expressly supporting the Remand Redetermination. Pl.'s Comments 1 ("Red Garden does not oppose the Remand Results" and "requests that the Court issue its opinion and order based on those Results ..."). The court, therefore, will enter judgment affirming the Remand Redetermination.

UNITED STATES, Plaintiff, v. C.H. ROBINSON COMPANY, Defendant.

Slip Op. 12-134. Court No. 06-00434.

United States Court of International Trade.

Nov. 7, 2012.

Footnotes

1 Unless otherwise indicated, further citations to the Tariff Act of 1930 are to the relevant portions of Title 19 of the U.S.Code, 2006 edition.