Apex Frozen Foods Private Ltd. v. United States, 2017 CIT 23

Background

Commerce conducted the ninth administrative review (Feb 1, 2013–Jan 31, 2014) of the antidumping duty order on certain frozen warmwater shrimp from India and selected Devi Fisheries and Falcon Marine as mandatory respondents.
Commerce applied its differential-pricing framework, using a Cohen’s d statistical test to detect patterns of significant price differences among purchasers, regions, or time periods, employing annual and quarterly weighted-average prices at that stage.
More than 66% of each mandatory respondent’s U.S. sales passed the Cohen’s d test, so Commerce applied the average-to-transaction (A-to-T) methodology to all U.S. sales to calculate dumping margins (3.28% for Devi; 2.63% for Falcon).
Plaintiffs (Apex and affiliated exporters) challenged: (1) Commerce’s use of annual/quarterly averages in the Cohen’s d stage; (2) including all sales and treating offsets differently in the meaningful-differences test; and (3) applying A-to-T to all U.S. sales where >66% of sales passed Cohen’s d.
The Court reviewed the agency record under the substantial-evidence/authoritative-review standard and sustained Commerce’s Final Results in full.

Issues

Issue	Plaintiff's Argument	Defendant's Argument	Held
Use of annual/quarterly averages in Cohen’s d test	Annual/quarterly averages are statutorily improper or unreasonable in reviews and distort results; monthly averages should be used in reviews	Commerce reasonably uses annual/quarterly averages in the Cohen’s d stage as an overview assessment of pricing behavior across the review period	Court: Use of annual/quarterly averages in Cohen’s d is reasonable and supported by substantial evidence
Scope of sales in meaningful-differences test	Meaningful-differences should consider only sales that exhibited significant price differences (the targeted subset)	Commerce reasonably includes all sales because the remedy (overall margin) covers all sales and masked dumping may involve both higher- and lower-priced transactions	Court: Inclusion of all sales in the meaningful-differences test is reasonable and lawful
Offsetting negative margins in A-to-A but not in A-to-T during comparison	Commerce’s asymmetric offset practice skews the comparison and is arbitrary; offsets should be applied consistently	Commerce reasonably applies offsets consistent with how each method would be used at remedy: A-to-A averages permit offsets; A-to-T is designed to detect individual dumped transactions so offsets would defeat the method’s purpose	Court: Differing offset treatment is reasonable and not arbitrary
Application of A-to-T to all sales when >66% pass Cohen’s d	Statute limits A-to-T to only the sales showing significant differences; applying A-to-T to all sales is overbroad and not authorized	Statute does not limit scope; Commerce reasonably applies A-to-T to all sales where pervasive differential pricing suggests masking beyond the subset, using calibrated ratio thresholds	Court: Applying A-to-T to all sales where >66% pass is reasonable and within Commerce’s discretion

Key Cases Cited

JBF RAK LLC v. United States, 790 F.3d 1358 (Fed. Cir.) (approving Commerce’s practice of applying A-to-T in reviews as in investigations)
Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034 (Fed. Cir.) (agency afforded broad discretion on complex methodological choices)
Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (agency must cogently explain exercise of discretion)
SmithKline Beecham Corp. v. Apotex Corp., 439 F.3d 1312 (Fed. Cir.) (preservation of issues and arguments in briefs)
Yangzhou Bestpak Gifts & Crafts Co. v. United States, 716 F.3d 1370 (Fed. Cir.) (Commerce’s goal is accurate calculation of dumping margins)
Becton Dickinson & Co. v. C.R. Bard, Inc., 922 F.2d 792 (Fed. Cir.) (court discretion to consider issues not properly raised)
Ceramica Regiomontana, S.A. v. United States, 810 F.2d 1137 (Fed. Cir.) (deference to Commerce on technical accounting/economic decisions)