Lead Opinion
Oрinion for the court filed by Circuit Judge DYK, in which Circuit Judge PROST joins. Circuit Judge MICHEL concurs-in-part and dissents-in-part.
This case presents two issues. First, it involves the question whether the Department of Commerce (“Commerce”) properly defined “foreign like product” for purposes of 19 U.S.C. §§ 1677b(a)(l) and 1677b(e). In SKF USA Inc. v. United States,
Second, this case involves the question whether Commerce can properly conduct a duty absorption inquiry pursuant to 19 U.S.C. § 1675(a)(4) for “transition orders”
Statutory Background
The antidumping statute is designed to prevent foreign goods from being sold at
Commerce decides whether dumping exists by determining whether fоreign merchandise has been sold or is likely to be sold in the United States at “less than its fair value.” 19 U.S.C. § 1673(1) (2000). Commerce first makes a preliminary determination whether there is a reasonable indication that foreign merchandise is being sold at less than fair value, 19 U.S.C. § 1673b(b)(l)(A) (2000), then establishes dumping margin
Before the amendments to the anti-dumping statute under the Uruguay Round Agreements Act (“URAA”), Pub.L. No. 103-465, 108 Stat. 4809 (1994), the only statutorily authorized review of anti-dumping orders after they were issued was Commerce’s annual administrative review, in which Commerce reviеwed the amount of antidumping duty, and recalculated the dumping margin as necessary to reflect actual competitive conditions. 19 U.S.C. § 1675(a)(1) (1988). These annual reviews were continued in the URAA amendments. See 19 U.S.C. § 1675(a)(1) (2000). Under the URAA amendments, Congress additionally: (1) authorized Commerce to conduct so-called duty absorption inquiries in conjunction with its second and fourth annual administrative reviews of antidumping orders, upon request by an interested domestic party; and (2) provided for a completely new kind of review of antidumping duty orders: sunset reviews, to be jointly conducted by ITC and Commerce five years after the issuance of an order. Sunset reviews eliminate needless antidumping orders by terminating orders after five years, unless ITC and Commerce both determine that revocation of the orders would lead to recurrence of dumping and material injury. Subseсtion (a) of section 1675 governs duty absorption inquiries. Subsection (c) governs sunset reviews.
Duty Absorption
The purpose of a duty absorption inquiry is to ensure that foreign exporters identified by Commerce as dumping goods in the United States do not undermine the purpose of the antidumping laws by “absorbing” the duty rather than passing the duty on to United States purchasers in the form of higher prices. In such circumstances, dumping continues despite the assessment of the duty, and, as a result, “the remedial effect of an antidumping order may be undermined.... ” Joint Report of the Committee on Finance, Committee on Agriculture, Nutrition, and Forestry, Committee on Governmental Affairs of the United States Senate to accompany S. £¿67, S.Rep. No. 103-412, at 44 (1994).
Congress provided that:
During any [annual] review ... initiated 2 years or 4 years after the publication*810 of an antidumping duty order, [Commerce], if requested, shall determine whether antidumping duties have been absorbed by a foreign producer or exporter subject to the order if the subject merchandise is sold in the United States through an importer who is affiliated with such foreign producer or exporter.
19 U.S.C. § 1675(a)(4) (2000).
The consequence of a finding of duty absorption by Commerce is that the anti-dumping order is less likely to be revoked as a result of a sunset review. The Statement of Administrative Action recognized that “[d]uty absorption may indicate that the [foreign] producer or exporter would be able to market more aggressively should the order be revoked as a result of a sunset review.” Uruguay Round Agreements Act: Statement of Administrative Action (“SAA ”), H.R. Doc. No. 103-316, at 886 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4211. It was further understood:
Duty absorption is a strong indicator that the current dumping mаrgins calculated by Commerce in reviews may not be indicative of the margins that would exist in the absence of an order. Once an order is revoked, the importer could achieve the same pre-revocation return on its sales by lowering its prices in the U.S. in the amount of the duty that previously was being absorbed....
An affirmative finding of absorption in an administrative review initiated two years after the issuance of an order is intended to have a deterrent effect on continued absorption of duties by affiliated importers; if they engage in duty absorption, they will know that they will face an additional hurdle that will make it more difficult to obtain revocation or termination. If, in the four-year review, Commerce finds that absorption has taken place, it will take that into account in its determination regarding the dumping margins likely to prevail if an order were revoked.
Id. at 885-86, reprinted in 1994 U.S.C.C.A.N. at 4210 (emphases added).
Sunset Reviews
The purpose of the sunset review is to eliminate needless orders by terminating antidumping orders аfter five years unless Commerce determines that revocation of the duty “would be likely to lead to continuation or recurrence of dumping,” and ITC determines that revocation of the duty “would be likely to lead to ... material injury.” 19 U.S.C. § 1675(c)(1) (2000). Unless both agencies make affirmative determinations, the order must be revoked. The sunset review is held “5 years after the date of publication of ... an antidump-ing duty order,” and every five years thereafter. 19 U.S.C. § 1675(c)(1)(A) (2000); S.Rep.No. 103-412, at 45.
ITC considers several factors in deciding whether revocation would likely lead to material injury. 19 U.S.C. § 1675a(a)(l) (2000).
Transition Orders
There is no issue in this case as to the operation of these duty absorption inquiry or sunset review provisions with respect to antidumping orders issued after January 1, 1995, the dаte the URAA amendments came into effect in the United States. The controversy concerns orders issued before that date — so called “transition orders.” A “transition order” is defined in the statute as “an antidumping duty order ... which is in effect on the date the WTO Agreement enters into force with respect to the United States,” that is, January 1, 1995. 19 U.S.C. § 1675(c)(6)(C) (2000). Congress was well aware that “there likely will be more than 400 of these transition orders” issued before January 1, 1995, and Congress also recognized that “special rules are necessary to enable the agencies to conduct five-year reviews within a reasonable period and in a manner consistent with the [URAA] Agreements.” &4A at 882, reprinted in 1994 U.S.C.C.A.N. at 4208. Congress accordingly explicitly provided for sunset review of transition orders: “[f]or purposes of this subsection [ (c) ], a transition order shall be treated as issued on the date the WTO Agrеement enters into force with respect to the United States.” 19 U.S.C. § 1675(c)(6)(D) (2000). Thus, transition orders were deemed issued on January 1, 1995, and subject to a sunset review five years after that date.
In the URAA amendments, Congress did not provide for duty absorption inquiries of transition orders in the second or fourth years after the deemed issuance date. Nonetheless, Commerce has claimed the authority to undertake such duty absorption inquiries for transition orders in the second and fourth years after the deemed issuance date, thus leading to the present proceeding.
Proceedings Below
In 1997, Commerce promulgated a regulation interpreting the statutory scheme as permitting it to conduct duty absorption inquiries of transition orders, if requested, in any annual review initiated in 1996 or 1998. 19 C.F.R. § 351.218© (1998).
This case predates the issuance of that regulation. At issue in this case is the seventh annual administrative review of an antidumping order on antifriction bearings (“AFBs”) imported to the United States during the period of May 1, 1995, through April 30, 1996. Plaintiff-appellant FAG-Italia S.p.A. is a manufacturer of AFBs from Italy that are subject to the anti-dumping order, and plaintiff-appellant FAG Bearings Corporation imports those AFBs (collectively, “FAG”). Plaintiff-aрpellant SKF USA and plaintiff-appellant SKF Industrie S.p.A. (collectively, “SKF”) also manufacture and import Italian AFBs that are subject to the antidumping order.
On May 15, 1989, Commerce issued the antidumping order.
It is undisputed that the underlying order, originally issued May 15, 1989, is a “transition order” with a deemed issuance date of January 1, 1995, for sunset review purposes. 19 U.S.C. § 1675(c)(6)(D) (2000). From the outset of its investigation, Commerce regarded this seventh annual administrative review as the “second year” review for purposes of its duty absorption inquiry, ie., as a review taking place during the second year after the January 1, 1995, deemed issue date. On May 31, 1996, and July 9, 1996, the Tor-rington Co. (“Torrington”) requested Commerce to determine, with respect to variоus respondents, whether antidumping duties had been absorbed during the period of review. Final Results, 62 Fed.Reg. at 54,075. Commerce proceeded to conduct the duty absorption inquiry, explain
The preamble to [Commerce’s] proposed antidumping regulations explains that reviews initiated in 1996 will be considered initiated in the second year and reviews initiated in 1998 will be considered initiated in the fourth year. Although these proposed antidumping regulations are not yet binding upon [Commerce], they do constitute a public statement of how [Commerce] expects to proceed in construing [19 U.S.C. § 1675(a)(4)]. This approach ensures that interested parties will have the opportunity to request a duty-absorption determination prior to the time for sunset review of the order under [19 U.S.C. § 1675(c) ] on entries for which the second and fourth years following an order hаve already passed.
Preliminary Results, 62 Fed.Reg. at 31,-568 (citation omitted). Commerce concluded:
Because these orders on AFBs have been in effect since 1989, these are transition orders in accordance with [19 U.S.C. § 1675(c)(6)(C)]; therefore, based on the policy stated above, [Commerce] will consider a request for an absorption determination during a review initiated in 1996. This being a review initiated in 1996 and a request having been made, we are making a duty-absorption determination as part of these administrative reviews.
Id.
In its Final Results, Commerce repeated its rationale for conducting the duty absorption inquiry. 62 Fed.Reg. at 54,074-75. It also found that SKF and FAG failed to put evidence into the record to support their position that they and their affiliated importers were not absorbing the duties, and concluded that duty absorption had occurred. 62 Fed.Reg. at 54,076. SKF and FAG сhallenged the Final Results as they pertain to AFBs from Italy in the United States Court of International Trade.
In FAG Italia S.p.A. v. United States, No. 97-11-01984,
Commerce and Torrington appealed the Court of International Trade’s determination that Commerce lacked statutory authority to conduct the duty absorption inquiry. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
STANDARD OF REVIEW
“ ‘When reviewing anti-dumping determinations made by Commerce, this court applies anew the standard of review applied by the Court of International Trade in its review of the administrative record.’ ” SKF USA Inc. v. United States,
We review questions of statutory interpretation without deference, U.S. Steel Group v. United States,
DISCUSSION
Commerce does not claim that any provision of the statute explicitly authorizes it to conduct duty absorption inquiries as part of its annual review of transition orders in the second and fourth years after January 1, 1995. Nor does Commerce claim that there is any ambiguous language of the statute that might be interpreted to convey such authority.
Commerce seriously misunderstands its role under Chevron.
Section 1675(a)(4) ... only addresses the question of when Commerce must conduct a duty absorption inquiry, ie., under certain enumerated conditions. Thus, left unanswered by section 1675(a)(4) is the proper issue that the case presented—whether the statutory scheme as a whole precludes Commerce from conducting a duty absorption inquiry for a transition order. The answer to this question must be in the negative because Congress has stated neither in 19 U.S.C. § 1675(a)(4) nor in any other statutory provision that Commerce is precluded from conducting such an inquiry.
Commerce Br. at 46. Given the statutory scheme as a whole and Congress’s recognition that Commerce’s duty absorption information is useful in ITC’s sunset reviews, Commerce argues, Commerce’s exercise of its discretion to cоnduct such reviews serves the purpose of the statute.
Thus, Commerce claims that it enjoys plenary power to engage in any activi
It is indeed well established that the absence of a statutory prohibition cannot be the source of agency authority. In Southern California Edison Co. v. Federal Energy Regulatory Commission,
[T]he court has repeatedly rejected the notion that the absence of an express proscription allows an agency to ignore a proscription implied by the limiting language of a statute, reasoning that such an approach requires “tortured statutory interpretation” and is based on the unlikely circumstance as to congressional intent giving agencies “virtually limitless hegemony, a result plainly out of keeping with Chevron.”
Id. at 24 (citations omitted). At issue in Southern California Edison were provisions of the Public Utilities Regulatory Policies Act of 1978, 16 U.S.C. §§ 796(17)-(18), 824a-3, 824i, 824k (1994), governing statutory entitlements benefiting certain energy producers. The statute expressly defined a “small power production faсility” as one that “produces electric energy solely by the use, as a primary energy source, of biomass, waste, renewable resources, geothermal resources, or any combination thereof.” 16 U.S.C. § 796(17)(A)(i) (1994). The Federal Energy Regulatory Commission (“FERC”) allowed a producer that burned a substantial amount of natural gas to retain its status as a “small power production facility.” FERC argued that the provision defining “primary energy source” refers “only to those uses that FERC may not consider in determining a facility’s primary energy source, but has no bearing upon permissible uses of secondary energy sources.” Id. at 23 (second and third emphases omitted). The court noted that to adopt FERC’s rationale “is to assume a new category of nonconforming uses fueled by such a source that is nowhere mentioned in [the Act] or FERC’s regulations and is unnecеssary to-give meaning to the provisions Congress enacted.” Id. at 24. The court rejected FERC’s interpretation because it “would have the effect of requiring Congress to state expressly” any denial of authority to the agency. Id.
Similarly, in University of the District of Columbia Faculty Ass’n v. District of Columbia Financial Responsibility & Management Assistance Authority,
The [National Mediation Board] does not even claim that the terms of [the Act] support the authority it asserts.... Instead, the Board would have us presume a delegation of power from Congress absent an express withholding of such power. This comes close to saying that the [National Mediation Board] has the power to do whatever it pleases merely by virtue of its existence, a suggestion that we view to be incredible.
Univ. of Dist. of Columbia Faculty Ass’n,
In this case, the statutory silence as to Commerce’s power to initiate duty absorption inquiries for transition orders does not give Commerce authority to conduct such inquiries. The fact that Commerce is empowered to take action in certain limited situations does not mean that Commerce enjoys such power in other instances. We cannot speculate that conducting two and four year reviews would serve Congress’s purpose where Congress did not authorize such reviews for transition orders.
To be sure, if provisions of the statute were rendered meaningless if the authority Commerce seeks were denied to it, we would have a very different case. In SKF USA Inc. v. United States,
But that is not the situation here. Our interpretation does not render any portion of the statute superfluous. Section 1675(c)(6)(D) fixes the issuance date for
While the sunset review provision states that the ITC “shall take into account,” among other things, “the findings of [Commerce] regarding duty absorption under section 1675(a)(4),” 19 U.S.C. § 1675(a)(1) (2000), and such considerations cannot occur when no findings have been made by Commerce as to transition orders, we think that this minor anomaly is insufficient to confer authority on Commerce to conduct such reviews. Section 1675a(a)(l) must refer only to the situation in which duty absorptiоn inquiries in fact exist. Even under Commerce’s interpretation of the statute, duty absorption determinations may or may not exist for a particular sunset review (since such determinations, even under Commerce’s view, are made only upon request). Commerce itself provides a rationale as to why Congress might have faded to provide authority for duty absorption inquiries as to transition orders: “Given this large number of transition orders that were subject to five-year reviews, it may well be that Congress simply did not wish to overburden Commerce by requiring it to conduct duty absorption inquiries for the transition orders.” Commerce Br. at 52-53.
In effect, Commerce’s interpretation requires the addition of statutory language that Congress did not include. Commerce would have us rewrite section 1675(c)(6)(D) to read “[f]or purposes of this subsection, and subsection (a), a transition order shall be treated as issued оn” January 1, 1995. This we cannot do.
We affirm the Court of International Trade’s determination that Commerce lacked authority to conduct a duty absorption inquiry with respect to this transition order, and we vacate and remand to the Court of International Trade for a determination of the “foreign like product” issue, consistent with our opinion in SKF USA
AFFIRMED-IN-PART, VACATED-IN-PART, AND REMANDED.
COSTS
No costs.
Notes
. "Transition orders” are orders predating January 1, 1995, "the date the WTO Agreement enter[ed] into force with respect to the United States.” 19 U.S.C. § 1675(c)(6)(C) (2000).
. Contrary to FAG's argument, this case is not moot. The International Trade Commission's ("ITC's") sunset review proceeding is not yet final, and a remand here would require the ITC to consider Commerce’s duty absorption determinations.
. The "dumping margin” is the total amount by which the price charged for the subject merchandise in the home market exceeds the price charged in the United States. 19 U.S.C. § 1677(35)(A) (2000).
. The duty absorption inquiry only applies to affiliated importers. 19 U.S.C. § 1675(a)(4) (2000). The regulations deal separately with the problem of unaffiliated importers who are reimbursed by foreign exporters, providing that Commerce, when calculating the export price, will "deduct the amount of any anti-dumping duty or countervailing duty which the exporter or producer: (A) Paid directly on behalf of the importer; or (B) Reimbursed to the importer.” 19 C.F.R. § 351.402(f) (2001). This has the effect of increasing the duty amount.
. Section 1675a(a)(l) provides in part:
The [ITC] shall take into account—
*811 (A) its prior injury determinations, including the volume, price effect, and impact of imports of the subject merchandise on the industry before the order was issued or the suspension agreement was accepted,
(B) whether any improvement in the state of the industry is related to the order or the suspension agreement,
(C) whether the industry is vulnerable to material injury if the order is revoked or the suspension agreement is terminated, and
(D) in an antidumping proceeding under section 1675(c) of this title, the findings of [Commerce] regarding duty absorption under section 1675(a)(4) of this title.
19 U.S.C. § 1675a(a)(l) (2000).
. 19 C.F.R. § 351.213(j)(2) provides:
(j) Absorption of antidumping duties.
(1) During any administrative review covering all or part of a period falling between the first and second or third and fourth anniversary of the publication of an antidumping order under § 351.211, or a determination under § 351.218(d) (sunset review), the Secretary, if requested ... will determine whether antidumping duties have been absorbed by an exporter or producer subject to the review if the subject merchandise is sold in the United States through an importer that is affiliated with such exporter or producer....
(2) For transition orders defined in section 751(c)(6) of the Act, the Secretary will apply paragraph (j)(l) of this section to any administrative review initiated in 1996 or 1998.
. Antidumping Duty Orders: Ball Bearings and Cylindrical Roller Bearings, and Parts Thereof From Italy, 54 Fed.Reg. 20,903 (Dep’t Commerce May 15, 1989).
. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden, Thailand, and the United Kingdom; Initiation of Antidumping Duty Administrative Reviews and Notice of Request for Revocation of an Order, 61 Fed.Reg. 31,506 (Dep’t Commerce June 20, 1996) ("Notice of Initiation ").
. Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof From France, Gennany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom; Preliminary Results of Antidumping Duty Administrative Reviews and Partial Termination of Administrative Reviews, 62 Fed.Reg. 31,566 (Dep't Commerce June 10, 1997) ("Preliminary Results ”).
.Antifriction Bearings (Other than Tapered Roller Bearings) and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore, Sweden and the United Kingdom; Final Results of Antidumping Administrative Reviews, 62 Fed.Reg. 54,043 (Dep’t Commerce Oct. 17, 1997) (“Final Results ”).
. At оral argument, the following exchange took place between the court and counsel for Commerce:
THE COURT: "What is the ambiguous language ... you’re construing?”
COMMERCE: "The ambiguity, if there is one, is the absence of language. There is no specific reference in subsection (a) to the transition orders, but the entire section clearly addresses a program establishing a new program of duty absorption and five year inquiries, and recognizing that there were antidumping orders in existence prior to the establishment of this program, and that this program needs to apply to the transition orders.... ”
THE COURT: "There is no specific ambiguous language — ”
COMMERCE: "There is no specific ambiguous language. There is an absence of language. There is a gap that needs to be filled if one wants to read it so restrictively as not applying to transition orders.”
. Section 1675(a)(1)(B) provides that, "[a]t least oncе during each 12-month period be
For the purpose of paragraph (1)(B), [Commerce] shall determine (i) the normal value and export price (or constructed export price) of each entry of the subject merchandise, and (ii) the dumping margin for each such entry.
19 U.S.C. § 1675(a)(2)(A) (2000).
. Torrington argues for an even broader interpretation, urging that Commerce has authority to conduct duty absorption inquiries every second and fourth year after each successive sunset review of all orders that survive the initial sunset review. Torrington Br. at 29. We reject this theory. Neither the statute nor its legislative history suggests that Commerce may conduct duty absorption inquiries bеyond the initial sunset review, and the plain language of the statute provides that duty absorption inquiries be conducted "2 years or 4 years after the publication of an antidumping duty order....” 19 U.S.C. § 1675(a)(4) (2000).
. Even though Commerce’s regulations are inapplicable here, we have held that Commerce’s administrative determinations are entitled to Chevron deference. Koyo Seiko Co. v. United States,
. Contrary to Torrington’s argument that we should disregard the statutory language because it merely reflects a drafting error resulting from the pressures of fast-track legislation, this is not one of those rare situations in which statutory language can be ignored. See Chickasaw Nation v. United States,
. Torrington argues that the duty absorption provisions were enacted to address specific concerns of American producers subject to sunset reviews arising from transition orders, and that Congress therefore must have intended for Commerce to cоnduct duty absorption inquiries of transition orders as well as new orders, citing testimony of domestic industry before the House Ways and Means Committee. Torr. Br. at 24-25. We doubt that such testimony, even if it existed, would carry much, if any, weight. In any event, the cited testimony relates to the industry's general concerns about duty absorption, and our attention has been drawn to no reference where that testimony focused on duty absorption inquiries specifically with respect to transition orders.
. The Statement of Administrative Action stated: "New section [1675](c)(6)(A) establishes a schedule for completing five year reviews of transition orders in a timely and efficient manner.” SAA at 882, reprinted in 1994 U.S.C.C.A.N. at 4208.
. Our decision today is quite consistent with our prior decisions in Ambassador Division of Florsheim Shoe v. United States,
Concurrence in Part
concurring-in-part and dissenting-in-part.
I believe the correct construction of the antidumping laws, reading as a whole the Uruguay Round Agreements Act (“URAA”) amendments, is one in which duty absorption inquiries performed under § 1675(a)(4) apply to the five-year sunset reviews of transition orders. Because I cannot agree that logic permits an opposite conclusion, I respectfully dissent from that portion of the majority opinion that holds Commerce lacked the power to conduct the duty absorption inquiries as requested in this case.
When interpreting statutes, our task is to construe what Congress has enacted beginning with the language of the statute itself, giving еffect — if at all possible — to every clause and word of the statute. Duncan v. Walker,
As part оf the amendments under the URAA, Congress provided that Commerce “if requested, shall determine” whether duty absorption has occurred. 19 U.S.C. § 1675(a)(4). The purpose of Commerce’s inquiry was manifest: an affirmative finding of duty absorption in years two or four places importers on notice that, should the practice continue, they would face increased difficulty in obtaining a revocation or termination of existing orders at their five-year sunset review. See Uruguay Round Agreements Act Statement of Administrative Action at 885-88, reprinted in
Nevertheless, the majority opines that it “cannot speculate” how such reviews “would serve Congress’s purpose where Congress did not authorize such reviews [i.e., duty absorption inquiries] for transition orders.” This begs the question— whether Congress authorized duty absorption inquiries for transition orders — and at the same time pays only lip-service to our maxims of statutory construction. We are duty-bound to construe sections 1675(a)(4), 1675(c), and 1675a(a)(l) harmoniously, if at all possible. These sections are easily reconcilable once one recognizes that each sunset review of a duty order must consider duty absorption inquiries if such inquiries have been performed, that transition orders are subject to sunset reviews, and therefore, sunset reviews of transition orders necessarily must сonsider duty absorption inquiries provided that such inquiries have been performed. One need not look beyond the face of the statute to reach this conclusion, a necessary consequence of which is that, regardless of whether in a specific case an inquiry was actually performed, the possibility for the Commission to review such an inquiry must always exist. However, no such possibility exists under the court’s reasoning.
The majority, deeming itself duty-bound not to “rewrite” the statute to include language that is already reasonably inferable from reading the statute as a whole, instead opts to read out (or, at a minimum, render meaningless) language expressly contained in the statute: the express, affirmative command to the Commission under § 1675a(a)(l) that it consider, during sunset reviews of transition orders, any findings that have been made under § 1675(a)(4). Recognizing this “minor anomaly,” the majority attempts to justify it by speculating that § 1675a(a)(l) “must refer only to the situation in which duty absorption inquiries in fact exist.” Such conjecture buckles under its own weight, however, as today’s holding precludes the very existence of such a situation.
Because duty absorption inquiries form a part of the core analysis in determining whether revocation of the antidumping duty order would be likely to lead to continuation or recurrence of material injury to domestics, the antidumping statute provides that they shall be considered by the Commission during sunset reviews of anti-dumping proceedings under § 1675(c). Transition orders are antidumping proceedings under § 1675(c). And because
. The majority notes that the SKF USA court found that URAA § 291 "provided an ‘unambiguous directive from Congress' that the section must be applied prospectively.” Ante at 813. That is true — as to reviews. Section 291 plainly states that the effective date covers all reviews under § 1675 after January 1, 1995.
. Duty absorption inquiries did not exist before the URAA amendments, and today's holding (1) rejects Commerce's argument that it has plenary power to conduct the reviews; (2) precludes duty absorption inquiries in years 1996 and 1998; and (3) precludes duty absorption inquiries in the second and fourth years leading up to any subsequent sunset review, see ante at 815 n. 13. Thus, no inquiry for a transition order would ever exist in fact. Although the court leaves open the question whether Commerce might initiate its own inquiry during the sunset review, such a scenario is decidedly at odds with: (1) § 1675(a)(4)’s requirement that Commerce perform an inquiry “if requested”; (2) the requirement that the Commission review "findings ... under § 1675(a)(4)”; and (3) the court's holding that Commerce lacks plenary authority to initiate sua sponte such a request in years two and four.