Appellant Sahaviriya Steel Industries Public Company Ltd. (“SSI”) appeals from a decision of the Court of International Trade (“CIT”),
Sahaviriya Steel Indus. Pub. Co. v. United States (“SSI II”),
I. Background
A. The Antidumping Duty Order
On November 29, 2001, Commerce issued an antidumping duty order on certain hot-rolled carbon steel flat products from Thailand (“the subject merchandise”). Antidumping Duty Order: Certain Hot-Rolled Carbon Steel Flat Products From Thailand, 66 Fed.Reg. 59,562 (Dep’t of Commerce Nov. 29, 2001) (“Order”). The Order followed the filing of a petition and final determinations of dumping and injury by Commerce and the International Trade Commission (“ITC”). Id. at 59,563. In the Order, Commerce found that SSI was selling the subject merchandise at less than normal value and assigned SSI a dumping margin of 3.86%. Id.
On November 30, 2004, SSI requested an administrative review and revocation of the Order with respect to its subject merchandise based on the absence of dumping for the equivalent of three consecutive years. See Preliminary Results of Antidumping Duty Administrative Review and Intent to Revoke and Rescind in Part, 70 Fed.Reg. 73,197 (Dep’t of Commerce Dec. 9, 2005). Commerce made the preliminary determination that SSI had not sold the subject merchandise at less than normal value during the first and third of three consecutive administrative review periods, satisfying the three year requirement based on an “intervening year” allowance. See id. at 73,201-02. In its request, SSI also included an agreement (“the Certification”) signed by its president, stating that SSI would not engage in dumping following the revocation. See id. at 73,201. The Certification reads, in relevant part: “Should the department of Commerce conclude, subsequent to revocation, that SSI sold the subject merchandise at less than normal value, I certify that SSI agrees to immediate reinstatement of the antidumping duty order regarding the subject merchandise.” J.A. 80.
After the completion of a third administrative review period, Commerce issued a final decision granting SSI’s request for partial revocation from the
Order. Final Results of Antidumping Duty Administrative Review, Partial Revocation of Antidumping Duty Order and Partial Rescission of Antidumping Duty Administrative Review,
71 Fed.Reg. 28,659 (Dep’t of Commerce May 17, 2006)
(“Final Revocation Decision”).
Commerce reasoned that SSI continued to satisfy the requirements for revocation under its regulations, namely (1) no sales at less than normal value for the equivalent of three consecutive years and (2) the Certification of immediate reinstatement in the
Order
in the event of resumed dumping.
See Issues and Decision Memorandum for the [Final Revocation Decision],
A-597-817,
B. Commerce’s Changed Circumstances Review
On November 8, 2006, United States Steel Corporation (“U.S. Steel”) alleged that SSI had resumed dumping and petitioned Commerce to conduct a CCR to determine whether SSI should be reinstated in the Order. Initiation of Antidumping Duty Changed Circumstances Review, 73 Fed.Reg. 18,766 (Dep’t of Commerce Apr. 7, 2008) (“Initiation of CCR ”). SSI submitted no fewer than ten letters to Commerce contesting U.S. Steel’s petition on the grounds that Commerce lacked the authority to conduct a CCR to reinstate SSI in the Order. Id. at 18,767. Rejecting SSI’s argument, Commerce initiated the CCR, explaining that it possessed the statutory authority to reinstate SSI in the Order and that doing so by means of a CCR is consistent with the agency’s practice. See id. at 18,770.
SSI then filed suit in the CIT seeking a preliminary injunction prohibiting Commerce from conducting the CCR on the ground that Commerce’s actions were
ultra vires. Sahaviriya Steel Indus. Pub. Co. v. United States (“SSI
I”),
Following Commerce’s
Final Results,
SSI again brought suit in the CIT, this time contesting its reinstatement in the
Order
under a “mistake of law” theory, arguing that Commerce unreasonably interpreted the governing statute.
SSI II,
II. Discussion
This court reviews a CIT decision regarding Commerce’s antidumping determinations de novo, applying the same standard of review to Commerce’s determinations as did the CIT.
Carpenter Tech. Corp. v. United States,
“[Statutory interpretations articulated by Commerce during its antidumping proceedings are entitled to judicial deference under
[Chevron, U.S.A., Inc. v. Natu
A. Revocation in Part Under 19 U.S.C. § 1675(d)
As relevant to the present case, 19 U.S.C. § 1675(d) provides that “[i]n general ... [Commerce] may revoke, in whole or in part, ... an antidumping duty order ... after review under [a periodic administrative review or CCR].” Pursuant to Commerce’s regulations:
in determining whether to revoke an antidumping duty order in part, the Secretary will consider:
(B) Whether, for any exporter or producer that the Secretary previously has determined to have sold the subject merchandise at less than normal value, the exporter or producer agrees in uniting to immediate reinstatement in the order, as long as any exporter or producer .is subject to the order, if the Secretary concludes that the exporter or producer, subsequent to the revocation, sold the subject merchandise at less than normal value.
19 C.F.R. § 351.222(b)(2)(i)(B) (emphasis added). Thus, Commerce interprets the revocation “in part” language in § 1675(d) to permit conditional revocation, i.e. revocation subject to reinstatement, if Commerce finds that a party subject to an antidumping duty order resumes dumping.
SSI argues that Commerce impermissibly interpreted § 1675(d) to permit conditional revocation. According to SSI, once Commerce revokes an antidumping duty order with respect to a particular producer or exporter, “[t]he order ceases to exist with respect to the merchandise for which it has been revoked,” and accordingly cannot later be reinstated without a new, formal injury determination under 19 U.S.C. § 1673. Appellant Br. 25. To support its finality argument, SSI relies on: (1) the revocation statute, providing that “[a] determination ... to revoke an order ...
shall apply
with respect to
all
unliquidated entries of the subject merchandise,” 19 U.S.C. § 1675(d)(3) (emphasis added); and (2) Commerce’s implementing regulations, defining the word “revocation” as “the
end
of an antidumping ... proceeding,” 19 C.F.R. § 351.222(a) (emphasis added), not distinguishing between revocations in whole or in part in the definition. SSI asserts that the statute is clear on its face that a revocation is final, whether in whole or in part, and thus this court should not give
Chevron
deference to Commerce’s interpretation. In the alternative, SSI asserts that even if the court finds ambiguity in § 1675(d) and applies
Chevron
deference, the court should not uphold Commerce’s interpretation permitting conditional revocation in part of an antidumping duty order because Commerce went “far beyond any reasonable meaning that the statute might bear” and created “statutory authority where none exists.” Appellant Br. 32. Finally, SSI argues that its Certification of immediate reinstatement in the
Order
in the event of resumed dumping is not a concession of the reasonableness of the practice because Congress has not con
U.S. Steel and the Government (“Appellees”) counter that Commerce properly interpreted its revocation authority to allow for conditional revocation “in part.” According to U.S. Steel, because the language of § 1675(d) authorizes Commerce to revoke antidumping duty orders, but does not state when Commerce must exercise such authority, “the agency is charged with supplying its own reasonable policies, standards and procedures.” Appellee Br. U.S. Steel 21. Similarly, the Government argues in its brief that because § 1675(d) does not define “in part,” Commerce reasonably “filled this statutory gap” by implementing procedures for conditional revocation in part. Appellee Br. Gov’t 13. The Government also asserts that SSI conceded the reasonableness of Commerce’s interpretation of § 1675(d) by agreeing in its Certification to immediate reinstatement in the Order in the event that SSI resumed dumping. In its brief, however, U.S. Steel states that it is not SSI’s Certification, but the authority conferred by the statute, that is the basis of Commerce’s authority to reinstate SSI in the Order. The Appellees argue that a new injury determination was not required to reinstate SSI in the Order because the revocation in part was based solely on the cessation of dumping and did nothing to disturb the ITC’s original injury determination, which included SSI’s subject merchandise.
As a policy matter, both the Appellees and the CIT opinion below caution that absent Commerce’s ability to immediately reinstate a party revoked in part from an antidumping duty order, that party could simply refrain from dumping for three consecutive years, obtain revocation in part, and immediately thereafter resume dumping — effectively averting the anti-dumping duty order until Commerce and the ITC make new, formal dumping and injury determinations.
This court concludes that § 1675(d) is ambiguous and that Commerce reasonably interpreted § 1675(d) to permit the conditional revocation of an exporter or producer. Section 1675(d)(1) gives Commerce the authority to revoke antidumping duty orders “in whole or in part.” This language provides minimal guidance other than providing that the revocation should be carried out “after review under subsection (a) [a periodic administrative review] or (b) [a OCR]....” 19 U.S.C. § 1675(d)(1). The language of the statute is silent as to the conditions that might warrant the revocation of an antidumping duty order or the particular circumstances that would trigger such action. Thus, Commerce was left by Congress to promulgate guidelines as to when revocations “in whole or in part” are appropriate and to set forth the proper procedures therefore.
See Chevron,
Commerce interpreted its statutory authority under § 1675(d) in promulgating its revocation regulations at 19 C.F.R. § 351.222. Just as the governing statute distinguishes between revocations “in whole
or
in part,” § 1675(d)(1) (emphasis added), so too does Commerce in its regulations: section 351.222(b)(1) governs revocation “in whole,” and section 351.222(b)(2) governs revocation “in part.” With regard to revocation “in part,” section 351.222(b)(2)(i)(B) provides that the Secretary should consider whether the exporter or producer being considered for revocation “agree[d] in writing to its immediate
In addition, Commerce’s interpretation of its revocation authority furthers the policy consideration of preventing a party subject to an antidumping duty order from refraining from dumping for three consecutive years, obtaining revocation in part, and then subsequently resuming dumping — effectively evading the antidumping duty order.
See SSI II,
SSI argues that this evasion concern is “false” because “[t]he statute provides [an] explicit and exclusive remedy in § 1673” through “findings of dumping and injury.” Appellant Reply Br. 18. SSI’s argument is incorrect for two reasons. First, a new ITC injury determination under § 1673 would be an unnecessary administrative burden on the ITC contrary to the intent of the antidumping statute.
See Am. Lamb Co. v. United States,
The ITC’s injury determination [] does not examine the injury caused by discrete companies, but rather the injury caused by all dumped exports.... Even if one or more exporters in that country may have been revoked from the order on the basis of absence of dumping, all dumped exports of subject merchandise from that country continue to cause or threaten material injury, pursuant to the ITC’s affirmative injury determination.
Initiation of CCR, 73 Fed.Reg. at 18,771.
As Commerce explained, the original injury determination for the imposition of the Order remained valid and in effect for all subject merchandise, including SSI’s. Three months after its revocation in part from the Order, SSI participated in Commerce’s Sunset Review of the Order, filing a brief in support of full revocation of the Order as to all subject merchandise. See USITC Pub. No. 3956 at 4 n. 8. SSI’s post-revocation involvement in the Sunset Review demonstrated that SSI remained within the ambit of the Order, particularly because SSI’s subject merchandise was still included in the injury determination giving rise to the Order.
This court agrees with the Appellees that Commerce’s revocation in part was based on SSI’s cessation of dumping and did not disturb the ITC’s injury deter
For these reasons, this court holds, applying Chevron deference, that Commerce reasonably interpreted its revocation authority under § 1675(d) to permit conditional revocation in part of SSI from the Order.
B. Commerce’s Authority to Conduct Changed Circumstances Reviews Under § 1675(b)
19 U.S.C. § 1675(b)(1) governs Commerce’s authority to conduct CCRs. The statute provides, in relevant part:
In general ... [wjhenever the ... Commission receives information concerning, or a request from an interested party for a review of—
(A) a final affirmative determination that resulted in an antidumping duty order under this subtitle ...
(B) a suspension agreement accepted under section 1671c or 1673c of this title, or
(C)a final affirmative determination resulting from an investigation continued pursuant to section 1671c(g) or 1673e(g) of this title,
which shows changed circumstances sufficient to warrant a review of such determination ... the Commission ... shall conduct a review of the determination or agreement after publishing notice of the review 'in the Federal Register.
§ 1675(b)(1) (emphases added).
SSI argues that Commerce lacks the statutory authority to conduct a CCR to review the revocation of an antidumping duty order. According to SSI, Congress expressly limited Commerce’s authority to conduct a CCR to the three situations described in the statute in subsections 1675(b)(l)(A)-(C). Looking to subsection (A), SSI contends that “by selecting the word ‘that,’ Congress restrict[ed] CCRs to those specific final determinations resulting in an order and allow[ed] no others.” Appellant Br. 19. According to SSI, conducting a CCR of a revocation is the opposite of a determination “resulting] in an antidumping duty order,” and thus Commerce’s interpretation is impermissible in light of the express language of the statute. Under Chevron, SSI argues that the analysis ends at the express intent of Congress.
The Appellees counter that § 1675(b)(1) provides Commerce with broad authority to conduct CCRs to address changed circumstances sufficient to warrant agency reconsideration of antidumping duty determinations. U.S. Steel argues that the situation at hand falls squarely within the express statutory framework because (1) there was a “final affirmative determination resulting in an antidumping duty order,” i.e. Commerce’s original
Order;
and (2) there was a change in circumstances sufficient to warrant review, i.e. the find
[t]he scope of Commerce’s authority to initiate changed circumstances reviews under 19 U.S.C. § 1675(b)(1) is delimited only by the general requirement that there be ‘changed circumstances sufficient to warrant a review’ of the anti-dumping order. Commerce’s discretion is broad, and the range of matters subject to changed circumstances reviews is wide.
Taking a slightly different approach, the Government states that “subsection 1675(b)(1) does not expressly authorize changed circumstances reviews for reinstatement.” Appellee. Br. Gov’t 26. The Government’s argument aligns with U.S. Steel’s argument in the alternative, that even if there is no express statutory authority, Commerce’s CCR authority is not limited to those circumstances specifically set forth in the statute, relying on this court’s holdings in TKS and the CIT’s statement in Mittal to support its argument.
In
Mittal,
which is not binding on this court, Commerce utilized a CCR to evaluate whether one company was the successor-in-interest to another for the purpose of assessing the appropriate cash deposit rate for that company’s entries that were subject to an antidumping duty order.
The opinion in
TKS
warrants greater attention, as it comes closer to addressing the issue in this case. In
TKS,
the Japanese producer, Tokyo Kikai Seisakusho, Ltd. (“the producer”), submitted false information to Commerce during one of its yearly administrative reviews that resulted in the company’s revocation in part from an antidumping duty order.
This court agrees with SSI that the inherent authority to reconsider articulated in TKS does not extend to the facts of this case. In TKS, this court stated:
While Commerce labeled its proceedings as a ‘changed circumstances review,’ its actions ... are not properly characterized as such. For this reason, the trial court was not required to decide whether Commerce’s actions were consistent with § 1675(b)(1). Instead, the trial court correctly ruled that Commerce, under the circumstances presented, acted within its inherent authority to protect the integrity of its proceedings from fraud.
Id. at 1361. In the present situation, Commerce utilized a CCR to reconsider the revocation in part in light of a finding that SSI had resumed dumping, not because of any error or fraud in the original revocation proceeding. Here, unlike in TKS, this court must decide whether Commerce properly acted within the scope of its authority under § 1675(b)(1). We hold that it did.
This court agrees with Appellee U.S. Steel that Commerce’s CCR of the Order fell squarely within the ambit of subsection 1675(b)(1)(A) because Commerce was indeed conducting a CCR of “a final affirmative determination that resulted in an anti-dumping duty order.” This court is not persuaded by SSI’s attempt to characterize the CCR as an improper CCR of a revoked, non-existent antidumping duty order. At no time did Commerce purport to conduct a CCR of the revocation in isolation, but rather reviewed the existing Order in light of changed circumstances, namely SSI’s resumed dumping. See, e.g., Initiation of CCR, 73 Fed.Reg. 18,766 (“Petitioner requested that [Commerce] reinstate the HoP-Rolled Steel Order [i.e., the original Order ] with respect to SSI’s exports.... ” (emphasis added)).
As explained in Part A, the original Order remained valid and in effect with respect to the other subject exporters and producers. Just as Commerce may conduct a CCR to evaluate an existing anti-dumping duty order for the purposes of revocation in part (pursuant to § 1675(d)(1)), so too may Commerce conduct a CCR to evaluate whether that party should be reinstated in that order. Here, Commerce conducted a CCR of the Order, “a final affirmative determination that resulted in an antidumping duty order,” found that SSI had resumed dumping, and thus reinstated SSI’s subject merchandise in the Order. Final Revocation Decision, 71 Fed.Reg. at 28,661. As discussed in Part A, this dumping determination was all that was necessary to reinstate SSI in the Order because the ITC’s injury determination giving rise to the Order included SSI’s subject merchandise and remained unaffected by SSI’s revocation in part. Accordingly, this court concludes that Commerce properly conducted a CCR — under the express authority found in subsection 1675(b)(1)(A) — to reconsider the existing Order with respect to SSI’s subject merchandise. Based on this disposition, we need not address whether Commerce’s CCR authority may extend to situations that fall outside the express ambit of subsections 1675(b)(l)(A)-(C).
III. CONCLUSION
For the foregoing reasons, this court concludes that Commerce reasonably interpreted its revocation and CCR authority and acted pursuant thereto with respect to SSI’s revocation and subsequent rein
AFFIRMED