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 COMPANY PRIVATE 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
UNITED STATES, AD HOC SHRIMP TRADE ACTION COMMITTEE, AMERICAN SHRIMP PROCESSORS ASSOCIATION, Defendants-Appellees
from the United States Court of International Trade in No.
1:13-cv-00283-RWG, Senior Judge Richard W. Goldberg.
L. LaFrankie, Crowell & Moring, LLP, Washington, DC,
argued for plaintiffs-appellants. Also represented by Matthew
R. Nicely, Hughes Hubbard & Reed LLP, Washington, DC.
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.
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.
Newman, Clevenger, and Taranto, Circuit Judges.
CLEVENGER, CIRCUIT JUDGE.
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,
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.
" 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 "anti- dumping
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) ("The
antidumping statute provides for the assessment of remedial
duties on foreign merchandise sold in the United States at
less than fair market value that materially injures or
threatens to injure a domestic industry.").
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
(1) Average-to-transaction ["A-T"], in which
Commerce compares the weighted average of the normal
values to the export prices (or constructed export
prices) of individual transactions.
(2) Average-to-average ["A-A"], in which
Commerce compares the weighted average of the normal
values to the weighted average of the export prices (or
constructed export prices).
(3) Transaction-to-transaction ["T-T"], in
which Commerce compares the normal value of an individual
transaction to the export price (or constructed export
price) of an individual transaction.
Id. (citation omitted).
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.
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."19 U.S.C. § 1677f-1(d)(1)(A)(i). The
statute, however, contemplates an exception to this general
The administering authority may determine whether the subject
merchandise is being sold in the United States at less than
fair value by comparing the weighted average of the normal
values to the export prices (or constructed export prices) of
individual transactions for comparable merchandise, if-
(i) there is a pattern of export prices (or constructed
export prices) for comparable merchandise that differ
significantly among purchasers, regions, or periods of
(ii) the administering authority explains why such
differences cannot be taken into account using a method
described in paragraph (1)(A)(i) or (ii).
9 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
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) ("[The
exception] provides for a comparison of average normal values
to individual export prices . . . in situations where an
average-to-average . . . methodology cannot account for a
pattern of prices that differ significantly among purchasers,
regions, or time periods, i.e., where targeted
dumping may be occurring.").
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 discontinued 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 ("Commerce's decision to use or not
use the zeroing methodology reasonably reflects unique goals
in differing comparison methodologies. . . . When examining
individual export transactions, using the
average-to-transaction comparison methodology, prices are not
averaged and zeroing reveals masked dumping."); see
also U.S. Steel Corp. v. United States, 621 F.3d 1351,
1363 (Fed. Cir. 2010).
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. Enterprises ("Falcon")
as a voluntary respondent. See 19 U.S.C. §
1677m(a) (permitting exporters not selected for mandatory
individual review to volunteer to have an "individual
weighted average dumping margin" calculated, if not
the course of AR7, the American Shrimp Processors Association
("ASPA"), a domestic "interested party, "
see 19 U.S.C. § 1677(9), alleged that Apex was
engaged in targeted dumping during the review period. ASPA
requested that Commerce apply the A-T methodology with
zeroing when reviewing the antidumping duty.
published the final results of AR7 in July 2013, along with
an Issues and Decision Memorandum explaining its methodology
and results. Commerce noted that, despite the statutory
silence on what methodology to apply in the administrative
review context, "it would look to practices employed by
the agency in antidumping investigations for guidance on this
issue." Joint Appendix at 886. As such, following 19
U.S.C. § 1677f-1(d)(1)(B), Commerce considered (1)
whether Apex's, Devi's, and Falcon's sales
exhibited a pattern of significant price differences among
purchasers, regions, or periods of time; and (2) whether
"such differences can be taken into account using"
the A-A method.
a court-sanctioned methodology known as the Nails
test, see Mid Continent Nail Corp. v. United States,
712 F.Supp.2d 1370, 1376-79 (Ct. Int'l Trade 2010),
Commerce identified for Apex a pattern of targeted sales that
differed significantly from prices of non-targeted
sales. For Devi and Falcon, Commerce conclud- ed
there was an "insufficient volume of sales" to
justify applying the exception, and therefore used the
standard A-A methodology. Joint Appendix at 884.
also determined that the A-A method could not
"account" for the pattern of price differences in
Apex's sales because it observed a "meaningful
difference in the weighted-average dumping margins calculated
using the A-to-A method and the A-to-T method."
Id.; see also id. at 889 ("Where there
is a meaningful difference between the results of the A-to-A
method and the A-to-T method, the A-to-A method would not be
able to take into account the observed price differences, and
the A-to-T method would be used to calculate the
weighted-average margin of dumping for the respondent in
question."). Specifically, Commerce found that
"Apex's margin is zero using the A-to-A method and
3.49 percent using the A-to-T method, " and