Apex Frozen Foods Private Ltd. v. United States

• Decision Date: 02 February 2016
• Docket Number: Court No. 14–00226,Slip Op. 16–9
• Parties: Apex Frozen Foods Private Limited et al., Plaintiffs, v. United States, Defendant, and Ad Hoc Shrimp Trade Action Committee, Defendant-Intervenor.
• Court: U.S. Court of International Trade

144 F.Supp.3d 1308

Apex Frozen Foods Private Limited et al., Plaintiffs,

v.United States, Defendant,andAd Hoc Shrimp Trade Action Committee, Defendant-Intervenor.

Slip Op. 16–9

Court No. 14–00226

United States Court of International Trade.

February 2, 2016

Robert Lewis LaFrankie, II, Hughes Hubbard & Reed LLP, of Washington, DC, argued for plaintiffs. With him on the brief were Alexandra Bradley Hess and Matthew Robert Nicely.

Patricia Mary McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington DC, argued for defendant. With her on the brief were Joshua Ethan Kurland, Trial Attorney, Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and Jeanne E. Davidson, Director. Of Counsel on the brief was Scott Daniel McBride, Senior Attorney, Office of the Chief Counsel for Trade and Compliance, U.S. Department of Commerce, of Washington, DC.

Nathaniel Jude Maandig Rickard, Picard, Kentz & Rowe, LLP, of Washington DC, argued for defendant-intervenor. With him on the brief was Jordan Charles Kahn.

Before: Claire R. Kelly, Judge

OPINION

Kelly

, Judge:

This matter is before the court on Plaintiffs Apex Frozen Foods Private Limited, et al.'s (collectively “Plaintiffs”) motion for judgment on the agency record pursuant to USCIT Rule 56.2

. Plaintiffs contest various aspects of the U.S. Department of Commerce's (“Commerce” or “Department”) final determination in the eighth administrative review of the antidumping duty order on certain frozen warmwater shrimp from India, covering the period of February 1, 2012 through January 31, 2013. See generally

Certain Frozen Warmwater Shrimp From India, 79 Fed.Reg. 51,309 (Dep't Commerce Aug. 28, 2014) (final results of antidumping duty review; 2012–2013) (“Final Results ”), as amended , 79 Fed.Reg. 55,430 (Dep't Commerce Sept. 16, 2014) and accompanying Issues and Decision Memorandum for the Final Results of the Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from India, A–533–840, (Aug. 20, 2014), available at http://enforcement.trade.gov/frn/summary/india/2014–20401–1.pdf (last visited Jan. 25, 2016) (“Final I & D Memo”); see also

Certain Frozen Warmwater Shrimp From India, 70 Fed.Reg. 5,147 (Dep't Commerce Feb. 1, 2005) (notice of amended final determination of sales at less than fair value and antidumping duty order) (“Order”). For the reasons set forth below, Commerce's final results are supported by substantial evidence and in accordance with law.

BACKGROUND

Commerce issued the antidumping duty order covering certain frozen warmwater shrimp from India on February 1, 2005. See Order, 70 Fed.Reg. at 5,147

. After receiving timely requests to conduct an administrative review from several companies, including domestic producer Defendant–Intervenor Ad Hoc Shrimp Trade Action Committee (“Defendant–Intervenor”), on April 2, 2013 Commerce initiated the eighth administrative review of the Order for the period of February 1, 2012 through January 31, 2013. See Certain Frozen Warmwater Shrimp From India and Thailand, 78 Fed.Reg. 19,639, 19,639 (Dep't Commerce Apr. 2, 2013)

(notice of initiation of antidumping duty administrative reviews); Initiation of Antidumping and Countervailing Duty Administrative Reviews and Request for Revocation in Part, 78 Fed.Reg. 25,418, 25,420 (Dep't Commerce May 1, 2013) ; see also Request for Administrative Reviews at 1–2, PD 9 at bar code 3121314–01 (Feb. 28, 2013).

Pursuant to Section 777A(c)(2) of the Tariff Act of 1930, as amended, 19 U.S.C. § 1677f–1(c)(2) (2012)

,¹ Commerce found it was not practicable to examine each of the known exporters and producers of subject merchandise and thus limited the review to the two companies that, according to U.S. Customs and Border Protection (“CBP”) import data, accounted for the largest volume of subject merchandise exported to the United States to serve as mandatory respondents for the administrative review—(1) Devi Fisheries Limited and its affiliates Satya Seafoods Private Limited and Usha Seafoods (collectively “Devi Fisheries”); and (2) Falcon Marine Exports Limited and its affiliate K.R. Enterprises (collectively “Falcon Marine”). See Selection of Respondents for Individual Review at 1–2, 4, PD 25 at bar code 3133307–01 (May 1, 2013); see also Decision Memorandum for the Preliminary Results of the 2012–2013 Administrative Review of the Antidumping Duty Order on Certain Frozen Warmwater Shrimp from India at 2, A–533–840, (Mar. 18, 2014), available at http://enforcement.trade.gov/frn/summary/india/2014–06559–1.pdf (last visited Jan. 25, 2016) (“Prelim. I & D Memo”). Accordingly, Commerce issued questionnaires to and received responses from Devi Fisheries and Falcon Marine from May 2013 through January 2014. See Prelim. I & D Memo at 2–3.

Commerce published its preliminary results on March 25, 2014. See Certain Frozen Warmwater Shrimp From India, 79 Fed.Reg. 16,285, 16,285 (Dep't Commerce Mar. 25, 2014)

(preliminary results of antidumping duty administrative review; 2012–2013) (“Prelim. Results ”); see also Prelim. I & D Memo at 1. After applying its differential pricing analysis, Commerce preliminarily found that the mandatory respondents' sales revealed a pattern of significant export price differences among purchasers, regions, or time periods and determined that “compar[ing] ... the weighted average of the normal values to the export prices ... of individual transactions” (“A–T”) was appropriate to calculate dumping margins for both Devi Fisheries and Falcon Marine in the preliminary results. See Prelim. I & D Memo at 7; 19 C.F.R. § 351.414(b)(3) (2013) ;²

see also 19 C.F.R. § 351.414(c)(1). For Devi Fisheries, the results of the differential pricing analysis led Commerce to apply A–T to all of Devi Fisheries' U.S. sales. See Calculations for Devi Fisheries Limited for the Preliminary Results at 1–2, CD 136 at bar code 3189206–01 (Mar. 18, 2014) (“Devi Fisheries' Prelim. Calcs.”); see also Prelim. I & D Memo at 7. By contrast, the differential pricing analysis as applied to Falcon Marine led Commerce to apply A–T only to the portion of Falcon Marine's U.S. sales that constituted the observed pattern of significant price differences and compared “the weighted average of the normal values to the weighted average of the export prices” (“A–A”) for all of its other U.S. sales. See Calculations for Falcon Marine Exports Limited for the Preliminary Results at 1–2, CD 145 at bar code 3189251–01 (Mar. 18, 2014) (“Falcon Marine Prelim. Calcs.”) 19 C.F.R. § 351.414(b)(1)

; see also Prelim. I & D Memo at 7. Accordingly, Commerce preliminarily calculated weighted-average dumping margins of 1.97% for Devi Fisheries and 3.01% for Falcon Marine, from which Commerce assigned a rate of 2.49% to the other exporters and producers covered by the review. See Prelim.

Results, 79 Fed.Reg. at 16,286 –89.

Commerce published the final results on August 28, 2014. See generally Final Results, 79 Fed.Reg. 51,309

. Commerce continued to find that the mandatory respondents' sales exhibited a pattern of export prices of comparable merchandise that differ significantly among purchasers, regions, or time periods as per the results of the differential pricing analysis and made no changes to Devi Fisheries' or Falcon Marine's margin calculations from the preliminary results. See

id. at 51,309 ; see also Final I & D Memo at 1, 22–26, 35–39. Additionally, Commerce reaffirmed its decision to reject portions of certain respondents'³ (collectively “Respondents”) case brief for containing untimely filed new factual information. See Final I & D Memo at 40–42.

Plaintiffs now challenge Commerce's determination in the final results on numerous grounds. First, Plaintiffs initially argued that Commerce did not have the legal authority to engage in a targeted dumping analysis or differential pricing analysis and thereafter apply A–T in the context of an antidumping duty administrative review. See Pls.' Rule 56.2

Mot. J. Agency R. 10–15, Apr. 3, 2015, ECF No. 36 (“Pls.' Mot.”). Plaintiffs concede in their reply papers that recent precedent from the Court of Appeals for the Federal Circuit makes clear that Commerce has the authority to apply the alternative A–T method in reviews, however, Plaintiffs still contend that the Court of Appeals for the Federal Circuit's decision is not dispositive and controlling on all of the issues in this case. See Plaintiffs' Reply Brief 3, Sept. 30, 2015, ECF No. 57 (“Pls.' Reply”). Second, Plaintiffs contend Commerce violated the Administrative Procedure Act (“APA”) by not following the APA's notice and comment rulemaking requirement before applying the differential pricing analysis. See Pls.' Mot. 18–20. Third, Plaintiffs argue that Commerce failed to comply with the so-called “limiting rule” and “allegation requirement” as provided within its regulations. See id. at 15–18. Fourth, Plaintiffs challenge certain aspects of Commerce's differential pricing analysis. See id. at 20–45. Specifically, Plaintiffs argue that Commerce (i) failed to establish a discernable pattern of export prices of comparable merchandise that differ significantly among purchasers, regions, or time periods because of its use of averages and consideration of all sales in the analysis, see id. at 20–28, 43–45, (ii) failed to adequately explain why A–A could not account for such differences, see id. at 28–36, and (iii) improperly used, what Plaintiffs refer to as, “double-zeroing” in calculating Falcon Marine's antidumping duty margin. See id. at 37–43. Finally, Plaintiffs maintain that Commerce wrongfully rejected portions of Respondents' administrative case brief as untimely filed new factual information. See id. at 45–46. For these reasons, Plaintiffs argue that Commerce's determinations in the final results are unsupported by substantial evidence and otherwise not in accordance with law.

Defendant United States (“Defendant”) argues that Commerce has the authority to...