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Apex Exports v. United States

United States Court of Appeals, Federal Circuit

February 5, 2015

APEX EXPORTS, AND FALCON MARINE EXPORTS LIMITED, Plaintiffs-Appellees,
v.
UNITED STATES, Defendant-Appellee, and A.D. HOC SHRIMP TRADE ACTION COMMITTEE, Defendant-Appellant, and AMERICAN SHRIMP PROCESSORS ASSOCIATION, Defendant

Appeal from the United States Court of International Trade in Nos. 1:11-cv-00291-RWG and 1:11-cv-00286-RWG, Senior Judge Richard W. Goldberg.

LIZBETH R. LEVINSON, Kutak Rock LLP, of Washington, DC, argued for plaintiff-appellees. With her on the brief was RONALD M. WISLA.

JOSHUA E. KURLAND, Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee. With him on the brief were STUART F. DELERY, Assistant Attorney General, JEANNE E. DAVIDSON, Director, and PATRICIA M. MCCARTHY, Assistant Director. Of counsel on the brief was SCOTT D. MCBRIDE, Senior Attorney, Office of the Chief Counsel for Trade Enforcement & Compliance, United States Department of Commerce, of Washington, DC.

DAVID A. YOCIS, Picard Kentz & Rowe LLP, of Washington, DC, argued for defendant-appellant. With him on the brief were ANDREW W. KENTZ, JORDAN C. KAHN, and NATHANIEL MAANDIG RICKARD.

Before NEWMAN, CLEVENGER, and DYK, Circuit Judges.

OPINION

Page 1374

Clevenger, Circuit Judge.

Ad Hoc Shrimp Trade Action Committee appeals the final decision of the Court of International Trade (" CIT" ), sustaining the refusal by the Department of Commerce (" Commerce" ) to deduct antidumping duties when calculating an export price. Apex Exports v. United States, No. 11-00291, 2013 WL 6978901 (Ct. Int'l Trade Dec. 31, 2013). This court has jurisdiction under 28 U.S.C. § 1295(a)(5) (2012). Because Commerce's interpretation of the antidumping statute is reasonable, we affirm.

I

Commerce is responsible for imposing antidumping duties. These duties are levied when foreign merchandise is sold in the United States at less than fair value and such sales pose a threat to domestic industry. 19 U.S.C. § 1673 (2012). Commerce calculates the antidumping duty using the export price methodology. See Certain Frozen Warmwater Shrimp from India, 76 Fed. Reg. 12025, 12028 (Mar. 4, 2011) (prelim. admin. review, partial rescission, and prelim. determination). Under this method, Commerce determines whether subject merchandise is being sold at less than fair value. If it is, Commerce determines how much less, and then assesses antidumping duties to make up the difference. 19 U.S.C. § 1673.

For this calculation, Commerce first determines the " export price" (" EP" ). This is the price that the first unaffiliated U.S. buyer pays for the subject merchandise. 19 U.S.C. § 1677a(a) (2012) . Then, Commerce calculates the " normal value" (" NV" ). This is treated as the fair value, and it is the price at which the subject merchandise is sold in the exporting country. 19 U.S.C. § 1677b(a)(1)(B)(i) (2012). If EP is lower than NV, and it poses a threat to U.S. industry, then Commerce assesses a duty " equal to the amount by which the normal value exceeds the export price." 19 U.S.C. § 1673. In practice, Commerce sets the duty by determining the dumping margin. A weighted average dumping margin is the difference between NV and EP, then divided by EP ((NV - EP)/EP). 19 U.S.C. § 1677(35) (2012).

However, it is not quite that simple. The goal of this calculation is to allow Commerce to compare the fair value of the merchandise to the price charged in the U.S. Therefore, both EP and NV are subject to adjustments, so that they closely reflect the price of subject merchandise at a common point in the chain of commerce. 19 U.S.C. § 1677b(a)(1)(B); 19 U.S.C. § 1677a(c)(2); 19 U.S.C. § 1677b(a)(6). As it pertains to this appeal, EP is reduced by the cost of bringing merchandise to the U.S.

Specifically,

[t]he price used to establish export price . . . shall be . . . reduced by . . . the amount, if any, included in such price, attributable to any additional costs, charges, or expenses, and United States import duties, which are incident to bringing the subject merchandise from the original place of shipment in the exporting country to the place of delivery in the United States . . . .

Page 1375

19 U.S.C. § 1677a(c)(2). This includes, for example, freight expenses, U.S. customs duties, and port charges. Id.; 76 Fed. Reg. at 12028. Because these are costs incident to bringing all merchandise into the U.S., one would expect U.S. prices to be higher to account for those expenses. Those price increases do not have a bearing on the fair value of merchandise. Therefore, the statute instructs Commerce to deduct them from EP. NV is subject to similar adjustments. 19 U.S.C. § 1677b(a)(6). The overall goal is to arrange an apples-to-apples comparison between the domestic and foreign price of merchandise. Then Commerce can correct for dumping by imposing an additional duty.

II

In 2005, Commerce made a final determination that certain shrimp imported from India were likely being sold in the U.S. at less than fair market value. Certain Frozen Warmwater Shrimp from India, 70 Fed. Reg. 5147 (Feb. 1, 2005) (notice of amended final determination). During the fifth administrative review of that antidumping order, shrimp exporters Apex Exports (" Apex" ) and Falcon Marine Exports Limited (" Falcon" ) were selected as individual respondents. Commerce assessed a 2.31% and 1.36% dumping margin for Apex and Falcon, respectively. Certain Frozen Warmwater Shrimp from India, 76 Fed. Reg. 41203, 41205 (July 13, 2011) (final admin. review, partial rescission, and final determination).

Commerce calculated the EP of merchandise sold by Apex and Falcon during the period of this fifth administrative review. Commerce started with the packed price of the shrimp charged to the first unaffiliated purchaser in the U.S. 76 Fed. Reg. at 12028. Then, in accordance with 19 U.S.C. § 1677a(c)(2)(A), Commerce deducted certain expenses from that price to reach EP.

Commerce deducted the following costs from Apex's price to determine EP:

foreign inland freight expenses, export inspection agency (EIA) fees, foreign brokerage and handling expenses, various foreign miscellaneous shipment charges, international freight expenses, terminal handling charges, marine insurance expenses, U.S. customs duties (including harbor maintenance fees and merchandise processing fees), U.S. brokerage and handling expenses, and U.S. inland freight expenses . . . .

76 Fed. Reg. at 12028.

Commerce deducted the following costs from Falcon's ...


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