Apex Frozen Foods Private Ltd. v. United States
Decision Date | 12 July 2017 |
Docket Number | 2015-2085 |
Citation | 862 F.3d 1322 |
Parties | APEX FROZEN FOODS PRIVATE LIMITED, Asvini Fisheries Private Limited, Avanti Feeds Limited, Blue Park Seafoods Private Limited, Devi Marine Food Exports Private Ltd., Kader Exports Private Limited, Kader Investment and CompanyPrivate Limited, Liberty Frozen Foods Pvt. Ltd., Liberty Oil Mills Ltd., Premier Marine Trading Products, Universal Cold Storage Private Limited, Five Star Marine Exports Private Limited, GVR Exports Private Limited, Jagadish Marine Exports, Jayalakshmi Sea Foods Private Limited, Nekkanti Seafoods Limited, Sagar Grandhi Exports Private Limited, Sai Marine Exports Private Limited, Sai Sea Foods, Sandhya Marines Limited, Sprint Exports Private Limited, Star Agro Marine Exports Private Limited, Surya Mitra Exim Private Limited, Wellcome Fisheries Limited, Plaintiffs-Appellants v. UNITED STATES, Ad Hoc Shrimp Trade Action Committee, American Shrimp Processors Association, Defendants-Appellees |
Court | U.S. Court of Appeals — Federal Circuit |
Robert L. LaFrankie , Crowell & Moring, LLP, Washington, DC, argued for plaintiffs-appellants. Also represented by Matthew R. Nicely , Hughes Hubbard & Reed LLP, Washington, DC.
Joshua E. Kurland , Commercial Litigation Branch, Civil Division, United States Department of Justice, Washington, DC, argued for defendant-appellee United States. Also represented by Benjamin C. Mizer, Jeanne E. Davidson , Patricia M. McCarthy ; Scott Daniel McBride , Henry Joseph Loyer , United States Department of Commerce, Washington, DC.
Philip Andrew Butler , Stewart & Stewart, Washington, DC, argued for defendant-appellee American Shrimp Processors Association. Also represented by Elizabeth Drake, Terence Patrick Stewart, William Alfred Fennell ; Edward T. Hayes , Leake & Andersson, L.L.P., New Orleans, LA.
Nathaniel Rickard , Picard Kentz & Rowe LLP, Washington, DC, for defendant-appellee Ad Hoc Shrimp Trade Action Committee. Also represented by Roop Bhatti, David Albert Yocis, Whitney Marie Rolig .
Before Newman, Clevenger, and Taranto, Circuit Judges.
Plaintiffs appeal the decision of the Court of International Trade ("CIT") affirming the U.S. Department of Commerce's ("Commerce") final results in the seventh administrative review of the antidumping duty order on certain frozen warmwater shrimp from India. Apex Frozen Foods Private Ltd. v. United States (Apex I ), 37 F.Supp.3d 1286, 1289 (Ct. Int'l Trade 2014) ; see also Certain Frozen Warmwater Shrimp from India , 78 Fed. Reg. 42,492 (Dep't Commerce July 16, 2013) (final administrative review). Using the "average-to-transaction" methodology with zeroing, Commerce assessed mandatory respondent Apex Frozen Foods Private Ltd. ("Apex") and other non-mandatory respondents (included in this appeal) with a 3.49 percent duty for entries between February 1, 2011, and January 31, 2012.
Apex and the additional plaintiffs (collectively, "Apex") challenge the methodology used by Commerce to calculate the antidumping duty on a number of grounds related to Commerce's decision to use the average-to-transaction methodology and zeroing. For the reasons that follow, we affirm the CIT's decision and sustain Commerce's results.
"Dumping," in international trade parlance, is a practice where international exporters sell goods to the United States at prices lower than they are sold in their home markets, in order to undercut U.S. domestic sellers and carve out market share. To protect domestic industries from goods sold at less than "fair value," Congress enacted a statute allowing Commerce to assess remedial "antidumping duties" on foreign exports. 19 U.S.C. § 1673 ; see also Viet I-Mei Frozen Foods Co. v. United States , 839 F.3d 1099, 1101 (Fed. Cir. 2016) ().
"Sales at less than fair value are those sales for which the ‘normal value’ (the price a producer charges in its home market) exceeds the ‘export price’ (the price of the product in the United States)...." Union Steel v. United States , 713 F.3d 1101, 1103 (Fed. Cir. 2013). Commerce performs this pricing comparison, and the concomitant antidumping duty calculation, using one of three methodologies:
Id. (citation omitted).
Previously, Commerce's general practice was to use the A-T methodology for both investigations and administrative reviews. Id. at 1104. With the adoption of the Uruguay Rounds Agreement Act in 1995, Congress required that the A-A or T-T methods be the presumed defaults for investigations , with the A-T method only to be used in certain circumstances. Id. ; see also 19 U.S.C. § 1677f-1(d)(1). Yet "Commerce continued to use average-to-transaction comparisons as its general practice in administrative reviews," in the absence of any governing statutory authority. Union Steel , 713 F.3d at 1104. Over time, Commerce unified its procedures through regulation, stating, "[i]n an investigation or review, the Secretary will use the average-to-average method unless the Secretary determines another method is appropriate in a particular case," 19 C.F.R. § 351.414(c)(1) (2012), and began applying the investigations statutory framework to guide its administrative reviews as well.
The investigations statute provides that, in general, antidumping duties are to be calculated using the A-A method—"comparing the weighted average of the normal values to the weighted average of the export prices (and constructed export prices) for comparable merchandise."1 19 U.S.C. § 1677f-1(d)(1)(A)(i). The statute, however, contemplates an exception to this general rule:
19 U.S.C. § 1677f-1(d)(1)(B). In other words, the A-T method can be used, provided two preconditions are met: (1) a pattern of significant price differences, and (2) an inability of the A-A method to "account" for these differences.
The statutory exception exists to address "targeted" or "masked" dumping. Union Steel , 713 F.3d at 1104 n.3. Under the A-A methodology, sales of low-priced "dumped" merchandise would be averaged with (and offset by) sales of higher-priced "masking" merchandise, giving the impression that no dumping was taking place and frustrating the antidumping statute's purpose. See Koyo Seiko Co. v. United States , 20 F.3d 1156, 1159 (Fed. Cir. 1994). The A-T method addresses this concern because, "[b]y using individual U.S. prices in calculating dumping margins, Commerce is able to identify a merchant who dumps the product intermittently—sometimes selling below the foreign market value and sometimes selling above it." Id. The driving rationale behind the statutory exception is that targeted dumping is more likely to be occurring where there is a "pattern of export prices ... for comparable merchandise that differ significantly among purchasers, regions, or periods of time." See 19 U.S.C. § 1677f-1(d)(1)(B) ; Union Steel , 713 F.3d at 1104 n.3 ; see also H.R. Rep. No. 103-826, pt. 1, at 99 (1994) ().
Commerce also devised the practice of "zeroing" when compiling a weighted average dumping margin—"where negative dumping margins (i.e., margins of sales of merchandise sold at nondumped prices) are given a value of zero and only positive dumping margins (i.e., margins for sales of merchandise sold at dumped prices) are aggregated." Union Steel , 713 F.3d at 1104. Commerce has dis-continued its use of zeroing when applying the A-A methodology, but zeroing remains part of Commerce's calculus when compiling a weighted average dumping margin under the A-T methodology. Id. at 1104–05, 1109 () ; see also U.S. Steel Corp. v. United States , 621 F.3d 1351, 1363 (Fed. Cir. 2010).
Commerce initiated the seventh administrative review of its antidumping duty covering frozen warmwater shrimp from India ("AR7") in April 2012—the review period covered entries of merchandise that occurred between February 1, 2011, and January 31, 2012. Commerce selected Apex and Devi Fisheries Limited ("Devi") as mandatory respondents. Commerce also individually reviewed Falcon Marine Exports Limited/K.R....
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