Apex Frozen Foods Private Ltd. v. United States
144 F. Supp. 3d 1308
| Ct. Intl. Trade | 2016Background
- Commerce conducted the 8th administrative review (Feb. 1, 2012–Jan. 31, 2013) of the antidumping duty order on frozen warmwater shrimp from India and selected two largest exporters (Devi Fisheries; Falcon Marine) as mandatory respondents.
- In the preliminary and final results Commerce applied its newer "differential pricing analysis" and used the average-to-transaction (A‑T) method for Devi and a mixed A‑T/A‑A method for Falcon, producing non‑zero margins; Commerce also rejected portions of respondents’ case brief as untimely new factual information.
- Plaintiffs (Apex and others) challenged numerous aspects: Commerce’s authority to use differential pricing/A‑T in reviews, alleged failure to follow APA notice-and-comment, alleged noncompliance with withdrawn targeted‑dumping regulations (limiting rule and allegation requirement), several methodological components of the differential pricing test (use of weighted averages, inclusion of higher‑priced sales, the Cohen’s d and ratio tests, meaningful‑difference test, and alleged “double‑zeroing”), and the rejection of case‑brief material.
- Government and intervenor defended Commerce, citing agency practice, recent controlling precedent, and reasoned explanations for methodology and brief rejection.
- The Court of International Trade sustained Commerce’s Final Results, holding Commerce acted within its authority, complied with applicable practice, provided adequate explanation for its change in practice (no APA rulemaking required), and that the differential pricing application and rejection of the case brief were supported by substantial evidence and lawful.
Issues
| Issue | Plaintiffs' Argument | Defendant's Argument | Held |
|---|---|---|---|
| Authority to apply differential pricing and A‑T in administrative reviews | Commerce lacks statutory authority to apply A‑T in reviews | Statute silent for reviews; Commerce may fill gaps by practice; JBF RAK supports application | Court: Commerce has authority to use differential pricing/A‑T in reviews (followed Federal Circuit precedent) |
| Whether Commerce had to follow withdrawn targeted‑dumping regulations (limiting rule / allegation requirement) in reviews | Withdrawn rules remained applicable; Commerce must follow them | Rules by their terms applied only to investigations; Commerce did not adopt them in review practice | Court: Regulations by their terms apply to investigations only; Commerce not required to apply them in reviews |
| Whether Commerce’s shift to differential pricing required APA notice-and-comment rulemaking | Change is a substantive rule requiring notice-and-comment | Change is agency practice/adjudication (interpretive/policy), not a legislative rule; agency may change practice with explanation | Court: Change was an adjudicative/practice change; no APA notice-and-comment required; Commerce provided adequate explanation |
| Validity of differential pricing methodology and application (Cohen’s d; weighted averages; ratio test; meaningful‑difference test; mixed A‑T/A‑A aggregation / alleged “double‑zeroing”) | Methodology unlawful or unsupported: must use individual transaction prices, not averages; should limit to lower‑priced (targeted) sales; A‑A could account for differences; mixed aggregation improperly zeroes twice | Statute/regulations do not mandate individual prices; averages reasonably identify patterns; all sales relevant to detect masking; meaningful‑difference test shows A‑A masked dumping; mixed aggregation proportionately applies remedy and prevents re‑masking | Court: Commerce’s tests and calculations were reasonable and supported by substantial evidence; use of weighted averages, inclusion of all sales, meaningful‑difference criterion, and mixed aggregation without additional offsets were lawful and rational |
| Rejection of respondents’ case brief portions as untimely new factual information | Rejections deprived parties of meaningful opportunity to rebut after preliminary results; material was argument not new facts | Submissions contained new factual material (expert analysis, outside data) filed after deadline; Commerce followed timing rules | Court: Commerce reasonably rejected untimely factual material; respondents had prior notice of the methodology and could have timely submitted rebuttal; rejection was lawful |
Key Cases Cited
- JBF RAK LLC v. United States, 790 F.3d 1358 (Fed. Cir. 2015) (upholding Commerce's authority to apply A‑T in administrative reviews)
- Gold East Paper (Jiangsu) Co. v. United States, 918 F. Supp. 2d 1317 (Ct. Int’l Trade 2013) (invalidating Commerce's 2008 withdrawal of targeted‑dumping regulations for lack of notice‑and‑comment)
- SEC v. Chenery, 332 U.S. 194 (1947) (agency may develop policy through adjudication; case‑by‑case evolution permissible)
- Motor Vehicle Mfrs. Ass'n v. State Farm, 463 U.S. 29 (1983) (agency changing course must provide a reasoned explanation)
- Fujitsu General Ltd. v. United States, 88 F.3d 1034 (Fed. Cir. 1996) (deference to Commerce on technical economic and accounting decisions)