809 F.3d 626
Fed. Cir.2015Background
- In Dec. 2006 Commerce issued a "Final Modification" abandoning its "zeroing" method for calculating weighted-average dumping margins and set an effective date in early 2007. The Final Modification stated it would apply to “all current and future antidumping investigations as of the effective date” and to “all investigations pending before the Department as of the effective date.”
- Commerce earlier proposed (Mar. 6, 2006) that the new rule apply only to investigations initiated based on petitions filed after publication of the final notice; the final rule broadened coverage in language that proved ambiguous about timing.
- Commerce had made a final dumping determination (using zeroing) in May 2006 as to diamond sawblades from Korea; the ITC initially found no injury in July 2006 and the case was in the Court of International Trade on challenge and remand when Commerce adopted the Final Modification.
- After remand and further proceedings, the ITC found threatened injury (May 2008); Commerce issued an antidumping duty order in Nov. 2009 using its 2006 zeroing-based calculations, later correcting ministerial errors.
- Hyosung and Ehwa (Korean exporters) challenged Commerce’s refusal to apply the no-zeroing Final Modification to their investigation; Commerce and the Court of International Trade treated the Final Modification as ambiguous and excluded this matter. The Federal Circuit affirmed.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether Commerce's Final Modification applied to this investigation | Hyosung/Ehwa: the Final Modification covers "all current and future" or "pending" investigations and thus applies to this case | Government/Commerce: the Final Modification is ambiguous; reasonably read to exclude investigations where Commerce had made a final dumping determination and did not return for substantive work after the effective date | Court: Final Modification is ambiguous; Commerce reasonably interpreted it to exclude this investigation; affirmed |
| Proper standard of review for Commerce’s interpretation | Hyosung/Ehwa: N/A (challenging coverage) | Commerce: Deference applies to reasonable agency interpretation of its rule | Court: Applies Auer/Michaels Stores deference; upholds Commerce's reasonable interpretation |
| Whether later Commerce practice (Polyvinyl Alcohol from Taiwan) contradicts exclusion here | Hyosung/Ehwa: Commerce applied the Final Modification in Polyvinyl Alcohol, showing inconsistent application | Commerce: Polyvinyl Alcohol was materially different (no Commerce final determination had been made; key margin work occurred after effective date) | Court: Differences suffice; Polyvinyl Alcohol does not make Commerce’s decision here unreasonable |
| Whether the term "investigation pending before the Department" unambiguously includes matters in which only ministerial steps remained | Hyosung/Ehwa: Phrase includes the entire statutory investigation lifecycle and so covers this case | Commerce: Reasonable to read it as referring to investigations pending for substantive Commerce work (not those finished except for ministerial tasks) | Court: Agrees with Commerce's reasonable reading; internal explanations and context support exclusion |
Key Cases Cited
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to an agency’s reasonable interpretation of its own ambiguous regulation)
- Michaels Stores, Inc. v. United States, 766 F.3d 1388 (Fed. Cir. 2014) (application of Auer deference in trade review context)
- Cathedral Candle Co. v. Int’l Trade Comm’n, 400 F.3d 1352 (Fed. Cir. 2005) (agency interpretation review principles)
- Union Steel v. United States, 713 F.3d 1101 (Fed. Cir. 2013) (discussion of zeroing practice in dumping calculations)
- Corus Staal BV v. Dep’t of Commerce, 395 F.3d 1343 (Fed. Cir. 2005) (zeroing and WTO issues)
- Diamond Sawblades Mfrs. Coal. v. United States, 612 F.3d 1348 (Fed. Cir. 2010) (appeal addressing proceedings in this matter)
- Diamond Sawblades Mfrs. Coal. v. United States, 626 F.3d 1374 (Fed. Cir. 2010) (mandamus affirmance regarding issuance of antidumping-duty order)