APEX FROZEN FOODS PRIVATE LIMITED, ANANDA AQUA APPLICATIONS, ANANDA AQUA EXPORTS (P) LIMITED, ANANDA FOODS, ASVINI FISHERIES PRIVATE LIMITED, AVANTI FEEDS LIMITED, BLUEPARK SEAFOODS PRIVATE LTD., BMR EXPORTS, CHOICE CANNING COMPANY, CHOICE TRADING CORPORATION PRIVATE LIMITED, DEVI FISHERIES LIMITED, SATYA SEAFOODS PRIVATE LIMITED, USHA SEAFOODS, DEVI MARINE FOOD EXPORTS PRIVATE LTD., KADER EXPORTS PRIVATE LIMITED, KADER INVESTMENT AND TRADING COMPANY PRIVATE LIMITED, LIBERTY FROZEN FOODS PVT. LTD., LIBERTY OIL MILLS LTD., PREMIER MARINE PRODUCTS, FALCON MARINE EXPORTS LIMITED, K.R. ENTERPRISES, FIVE STAR MARINE EXPORTS PRIVATE LIMITED, GVR EXPORTS PRIVATE LIMITED, JAGADEESH MARINE EXPORTS, JAYALAKSHMI SEA FOODS PRIVATE LIMITED, KADALKANNY FROZEN FOODS, DIAMOND SEAFOOD EXPORTS, EDHAYAM FROZEN FOODS PRVT. LTD., THEVA & COMPANY, MANGALA MARINE EXIM INDIA PVT. LTD., NEKKANTI SEA FOODS LIMITED, NILA SEA FOODS PRIVATE LIMITED, PENVER PRODUCTS PRIVATE LIMITED, SAGAR GRANDHI EXPORTS PRIVATE LIMITED, SAI MARINE EXPORTS PVT. LTD., SAI SEA FOODS, SANDHYA MARINES LIMITED, SPRINT EXPORTS PVT. LTD., STAR ARGO MARINE EXPORTS PRIVATE LIMITED, SURYAMITRA EXIM PVT. LTD., WELLCOME FISHERIES LIMITED, UNIVERSAL COLDSTORAGE PRIVATE LIMITED, Plaintiffs-Appellants
UNITED STATES, AD HOC SHRIMP TRADE ACTION COMMITTEE, Defendants-Appellees
from the United States Court of International Trade in No.
1:14-cv-00226-CRK, Judge Claire R. Kelly.
L. LaFrankie, Crowell & Moring, LLP, 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.
Whitney Marie Rolig, Picard Kentz & Rowe LLP, Washington,
DC, argued for defendant-appellee Ad Hoc Shrimp Trade Action
Committee. Also represented by Nathaniel Rickard, Andrew
William Kentz, Roop Bhatti, Meixuan Li.
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
eighth administrative review of the antidumping duty order on
certain frozen warmwater shrimp from India. Apex Frozen
Foods Private Ltd. v. United States, 144 F.Supp.3d 1308
(Ct. Int'l Trade 2016); see also Certain Frozen
Warmwater Shrimp from India, 79 Fed. Reg. 51, 309
(Dep't Commerce Aug. 28, 2014) (final administrative
review). Using the "average-to-transaction"
methodology with zeroing, Commerce assessed mandatory
respondent Devi Fisheries Limited ("Devi") with a
1.97 percent duty for entries between February 1, 2012, and
January 31, 2012. Using a "mixed alternative"
methodology, which blends both the average-to-transaction and
average-to-average methodologies, Commerce assessed the
second mandatory respondent Falcon Marine Exports
Limited/K.R. Enterprises ("Falcon") with a 3.01
percent duty for the same time period. Non-mandatory
respondents (including Apex Frozen Foods Private Limited
("Apex")) were assessed with a simple-averaged
antidumping duty of 2.49 percent.
include Apex, Devi, Falcon, and other exporters subject to
Commerce's antidumping duties on frozen warmwater shrimp
from India (collectively, "Apex"). Apex challenges
the methodology used by Commerce to calculate the antidumping
duties 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 "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) ("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
(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
(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 time,
(ii) the administering authority explains why such
differences cannot be taken into account using a method
described in paragraph (1)(A)(i) or (ii).
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
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