Lead Opinion
Opinion for the court filed by Circuit Judge RADER. Dissenting opinion filed by Circuit Judge LOURIE.
The U.S. Department of Commerce (Commerce) issued the final results of its antidumping duty review of AG der Dillinger Hüttenwerke (Dillinger). See Certain Cut-To-Length Carbon Steel Plate From Germany: Final Results of Anti-dumping Duty Administrative Review, 62 Fed.Reg. 18,390 (Dep’t of Commerce 1997) {Final Results). In its review, Commerce interpreted 19 U.S.C. § 1677a(f)(2)(C) to include movement expenses as part of “total expenses.” See 19 U.S.C. § 1677a (1994) (“Act”). The United States Court of International Trade reversed, thus precluding .Commerce from including movement expenses in computing “total expenses.” See U.S. Steel Group v. United States,
I.
On April 15, 1997, Commerce issued the Final Results of its antidumping duty review of Dillinger. In its review, Commerce classified Dillinger’s U.S. sales as Construed Export Prices (CEP) sales, rather than Export Prices (EP) sales, as part of the antidumping determination. See 62 Fed.Reg. at 18,392. Accordingly, Commerce adjusted the CEP under 19 U.S.C. § 1677a(d). As part of CEP computation, Commerce applied 19 U.S.C. § 1677a(f) to compute U.S. profit. That computation includes a determination of “total expenses,” which the statute defines as “all expenses ... with respect to the production and sale of [subject] merchandise.” 19 U.S.C. § 1677a(f)(2)(C). As Commerce applied the Act, “total expenses” includes movement expenses.
U.S. Steel Group and Bethlehem Steel Corporation (collectively, domestic producers) as well as Dillinger appealed various aspects of the Final Results to the Court of International Trade. In particular, the domestic producers challenged Commerce’s inclusion of movement expenses in the “total expenses” computation. The domestic producers argued that “total expenses,” under § 1677a(f)(2)(C), does not cover movement expenses but only production and selling expenses. In response, Commerce asserted that the overall structure of the statute justified its inclusion of movement expenses in “total expenses.” Commerce also urged the Court of International Trade to accord substantial deference to its reasonable statutory interpretation.
On July 7, 1998, the Court of International Trade sustained the domestic producers’ challenge. The Court of International Trade seemed to concede that the statute contains an ambiguity: “[T]he language defining total expenses is not entirely clear as to whether movement expenses should be included in the total expenses.” U.S. Steel,
Despite the apparent ambiguity, the Court of International Trade considered Commerce’s interpretation of the statute unreasonable and therefore unworthy of deference. See id. at 898. In its opinion, the Court of International Trade found two reasons to reject Commerce’s statutory interpretation as unreasonable: “First, Commerce’s interpretation is unreasonаble because it conflicts with its past practice of consistently distinguishing between movement and production or selling expenses in other circumstances.” Id. Next, “Commerce incorrectly discounts the proportionality that must logically exist between the total and total U.S. expenses. Total U.S. expenses over total expenses constitutes the applicable percentage. Logically, the numerator and the denominator of this ratio should be drawn from the same pool of expenses.” Id. (internal citations omitted). Thus, the Court of International Trade remanded the case to Commerce to recalculate the U.S. profit excluding movement expenses from “total expenses.”
On September 8, 1998, Commerce submitted its recalculated results consistent with the remand order to the Court of International Trade. In turn, on November 6, 1998, the Court of International Trade issued its final judgment. See U.S. Steel Group v. United States, No. 97-05-00866,
II.
This court reviews questions of statutory interpretation without deference. See Koyo Seiko Co. v. United States,
“To survivе judicial scrutiny, an agency’s construction need not be the only reasonable interpretation or even the most reasonable interpretation.” Koyo Seiko,
The antidumping laws require calculation of dumping margins by comparing the “normal value” of the subject merchandise to the “U.S. price.” See 19 U.S.C. § 1675(a). Commerce uses either the EP or the CEP methodology to calculate the U.S. price. Typically, EP sales are U.S. sales made outside of the United States before importation. See 19 U.S.C. § 1677a(a). In contrast, CEP sales are U.S. sales made in the United States to an unaffiliated buyer by a party affiliated with the producer or exporter, еither before or after importation. See 19 U.S.C. § 1677a(b).
To determine the CEP, Commerce starts with the first sale price to an unaffiliated purchaser and makes certain upward and downward adjustments. See 19 U.S.C. § 1677a(b)-(d). The provisions governing adjustments to CEP state in pertinent part:
(c) Adjustments for export price and constructed export price
The price used to establish export price and constructed export price shall be—
(2) reduced by—
(A) [T]he amount, if any, included • in such price, attributable to any
additional costs, charges, or expenses, and United States import duties, ivhich 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, and
(B) the amount, if included in such price, of any export tax, duty, or other charge imposed by the exporting country on the exportation of the subject merchandise to the United States....
(d) Additional adjustments to constructed export price
For purposes of this section, the price used to establish constructed export price shall also be reduced by—
(1) the amount of any of the following expenses generally incurred by or for thе account of the producer or exporter, or the affiliated seller in the United States, in selling the subject merchandise ...
(A) commissions for selling the subject merchandise in the United States;
(B) expenses that result from, and bear a direct relationship to, the sale, such as credit expenses, guarantees and warranties;
(C) any selling expenses that the seller pays on behalf of the purchaser; and
(D) any selling expenses not deducted under subparagraph (A), (B), or (C);
*1288 (2) the cost of any further manufacture or assembly (including additional material and labor), except in circumstances described in subsection (e) of this section; and
(3) the profit allocated to the expenses described in paragraphs (1) and (2).
19 U.S.C. § 1677a(c), (d) (emphasis added).
As illustrated, statutory deductions generally include movement, selling, and manufacturing expenses. See 19 U.S.C. § 1677a(c), (d). Further, subsection (d)(3) specifically requires a deduction of the profit that the exporters would earn had the same activities been performed in the home market.
(f) Special rule for determining profit
(1) In general
For purposes of subsection (d)(3) of this section, profit shall be an amount determined by multiplying the total actual profit by the aрplicable percentage.
(2) Definitions
For purposes of this subsection:
(A) Applicable percentage
The term “applicable percentage” means the percentage determined by dividing the total United States expenses by the total expenses.
(B) Total United States expenses
The term “total United States expenses” means the total expenses described in subsection (d)(1) and (2) of this section.
(C) Total expenses
The term “total expenses” means all expenses in the first of the following categories which applies and which are incurred by or on behalf of the foreign producer and foreign exporter of the subject merchandise and by or on behalf of the United States seller affiliated with the producer or exporter with respect to the production and sale of such merchandise....
19 U.S.C. § 1677a(f) (emphasis added). Essentially, the calculation of U.S. profit under subsection (f) reduces to the following formula:
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The “total U.S. expenses” numerator over the “total expenses” denominator constitutes the applicable percentage. See 19 U.S.C. § 1677a(f)(2)(A).
The sole issue on appeal is whether Commerce properly included movement expenses in the “total expenses” denominator under § 1677a(f)(2)(C). To address this question, this court must first dеtermine whether the Act settles the issue. See Chevron,
Moreover, even assuming for the sake of argument that the phrase “with respect to sales and production” is a limiting phrase, the Act offers no guidance on whether movement expenses would qualify as expenses “with respect to” sales. Thus, it is not at all clear from the plain language of the statute as to whether movement expensеs should be included in the total expenses denominator.
The domestic producers argue, however, that a different section of the Act dictates that the CEP be adjusted by “the amount ... 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.” 19 U.S.C. § 1677a(c)(2)(A). According to the domestic producers, this subsection demonstrates that Congress knew how to specifically describe movement expenses. Had Congress intended to include movement expenses in “total expenses,” the domestic producers contend, Congress would have used similar specificity when defining “total expenses” and simply explicitly included movement expenses. The domestic producers point to the definition of total U.S. expenses in § 1677a(f)(2)(C) as another example of how Congress might have defined “total expenses” by detailing all of the included expenses.
To be sure, the Act provides a specific and detailed description of how Commеrce is to handle some expenses (including what is arguably a movement expense) when adjusting CEP, see 19 U.S.C. §§ 1677a(c)(2)(A), (d)(1), (d)(2), and when calculating “total U.S. expenses,” see 19 U.S.C. § 1677a(f)(2)(B). This specificity, however, merely underscores the ambiguity- of the definition of “total expenses.” Had the Act meant to detail the specific expenses included in the definition of “total expenses,” it surely could have done so with similar specificity. Instead, the Act defines “total expenses” in a complex, ambiguous manner. As the Court of International Trade stated, “the language defining total expenses is not entirely clear as to whether movement expenses should be included in the total expenses denominator.” U.S. Steel,
The dissent asserts, however, that “total expenses” and total U.S. expenses are consistently defined as including selling and production expenses. In essence, the dissent argues that because “total U.S. expenses” is defined with reference to the specifically enumerated selling and production expenses in subsections 1677a(d)(l) and (2), thе phrase “with respect to production and sale” in the definition of “total expense” must be interpreted to be strictly confined to the enumerated selling and production expenses.
A “holistic” review of the relevant provisions — placing them in proper context within the entire statutory framework— shows that logic and the statute dictate to the contrary. See Vectra Fitness, Inc. v. TNWK Corp.,
Moreover, the dissent’s argument assumes that the enumerated U.S. expenses exclude movement costs. To the contrary, the Act’s specific enumeration of selling expenses for “total U.S. expenses” includes the category of “any selling expenses not deducted under subparagraph (A), (B), or (C).” 19 U.S.C. § 1677a(d)(l)(D). Thus, the Act itself provides no express rejection of movement expenses within the U.S. as part of “total U.S. expenses.”
Further, the Court of International Trade aptly observed that the Stаtement of Administrative Action (SAA) does not resolve the ambiguity in the statutory definition of “total expenses.” See U.S. Steel,
When, as here, the Act provides nо clear guidance on an issue, this court must uphold Commerce’s statutory interpretation as long as it is reasonable. See Chevron,
As demonstrated above, a “holistic” view of the relevant provisions demonstrates that the definitions in the Act themselves undercut the “symmetrical” treatment argument. Thus, as concluded above, the alleged lack of symmetry in the relevant prоvisions does not compel the conclusion that Commerce’s interpretation of “total expenses” is unreasonable.
Antidumping laws strive “to calculate antidumping duties on a fair and equitable basis.” Koyo Seiko,
In the present case, Commerce’s inclusion of movement expenses in “total expenses” fairly reflects commercial realities. To determine U.S. profit, the statute requires multiplying total actual profit by the ratio of “total U.S. expenses” to “total expenses.” See 19 U.S.C. § 1677a(f). In effect, that ratio acts to identify a narrower set of U.S. profit from a base pool of total actual profit. In identifying that subset of total actual profit, the Act sets different standards for identifying “U.S. expenses” as opposed to “total expenses.”
According to basic accounting principles, total actual profit is total revenues minus total expenses. Total actual profit is based on all revenues and all expenses. The SAA reiterates this principle and explicitly states that “total profit is calculated on the same basis as the total expenses.” SAA аt 825. Because movement expenses often are a very significant expense component for overseas imports, Commerce appropriately reasons that these expenses must be part of the equation to derive an accurate U.S. profit. In other words, an accurate determination of the U.S. profit must account for movement expenses — a substantial expense component for heavy imports such as the steel featured in this case. These movement expenses fit logically within “total expenses” in the U.S. profit equation.
Under these circumstances, the absence of statutory adjustment for movement expenses in the numerator, but not in the denominator, appears entirely consistent with the statute’s objective in determining a fair and accurate value of U.S. profit. Any other interpretation would unduly skew the U.S. profit computation against importers because the computation would exclude their heaviest expense category, leaving them with a disproportionately high dumping margin. Thus, this court holds that Commerce reasonably interpreted “total expenses” to include total U.S. and home market movement expenses. Therefore, the Court of International Trade erred in disturbing Commerce’s reasonable interpretation.
Further, this court finds unpersuasive the Court of International Trade’s misplaced reliance on past practice to reject Commerce’s statutory interpretation. Specifically, the Court of International Tradе concluded:
Commerce’s interpretation is unreasonable because it conflicts with its past practice of consistently distinguishing between. movement and production or selling expenses in other circumstances. See, e.g., Furfuryl Alcohol from the Republic of South Africa, 62 Fed.Reg. 61,-084, 61,091 (Dep’t Commerce 1997) (final results) (classifying expenses incurred for shipping insurance purposes as movement expense and not a direct sell-' ing expense); Silicon Metal from Brazil, 62 Fed.Reg. 47,441, 47,444 (Dep’t Commerce 1997) (amended final results) (“inlаnd freight is a movement expense, and not a selling expense”); Certain Stainless Steel Wire Rods from France, 62 Fed.Reg. 7206, 7212 (Dep’t Commerce 1997) (final results) (warehousing is a movement expense and not a selling expense).
U.S. Steel,
CONCLUSION
The Act does not preclude treating movement expenses as part of “total expenses.” Because Commerce’s rationale for its methodology was within the bounds of reason, this court reverses the judgment of the Court of International Trade and remands for recalculation of U.S. profit consistent with this opinion.
COSTS
Each party shall bear its own costs.
• REVERSED and REMANDED.
Notes
. The Statement of Administrative Action (SAA) clarifies: "The deduction of profit is a new adjustment in U.S. law, consistent with the language of the Agreement, which reflects that constructed export price is now calculated to be, as closely as possible, a price corresponding to an export price between non-affiliated exporters and importers.” H.R. Doc. No. 103-316, at 823 (1994). The SAA constitutes "an authoritative expression by the United States concеrning the interpretation and application of the Uruguay Round Agreements and this Act in any judicial proceeding in which a question arises concerning such interpretation or application.” 19 U.S.C. § 3512(d).
Dissenting Opinion
dissenting.
I respectfully dissent.
I would affirm the decision of the CIT because I believe that movement expenses are not within the definition of “total expenses” as defined in section 1677a(f)(2)(C). That provision defines total expenses as “all expenses ... incurred ... with respect to the production and sale of [the subject] merchandise.” 19 U.S.C. § 1677a(f)(2)(C) (1994) (emphasis added). That lаnguage is not unclear or ambiguous. While the term “all expenses” appears to be comprehensive, the subsequent qualification “with respect to the production and sale” is limiting.
In interpreting this definition, it is useful to refer to the previous definition in section 1677a(f)(2)(B), “Total United States Expenses,” which means those “expenses described in subsection (d)(1) and (2) of this section.” 19 U.S.C. § 1677a(f)(2)(B). The expenses described in subsection (d)(1) all relate to selling expenses, and those described in subsection (d)(2) all relate to “manufacture or assembly.” The latter are essentially production expenses. Thus, total United States expenses and total expenses are consistently defined as including selling and production (manufacture) expenses. We are not entitled to modify an unambiguous provision.
Elsewhere in this section there is reference to what are clearly movement expenses. Section 1677a(c)(2)(A) refers to “the amount ... attributable to any additional costs, charges, or expenses ... 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,” ie., movement expenses. 19 U.S.C. § 1677a(c)(2)(A) (emphasis added). All parts of a statute must be interpreted to provide consistent meaning. Congress obviously had such expenses in mind when it failed to include them in the definition of total expenses.
Commerce is surely entitled to deference in interpreting a statute it is obligated to implement. However, Chevron deference need not be given when Congress has spoken to the issue before us. The plain language of the statute states that CEP is to be reduced for: movement expenses, under section 1677a(c)(2)(A); sales and production expenses, under sections 1677a(d)(l) and 1677a(d)(2); and profits allocated to sales and production expenses, under sections 1677a(d)(3) and 1677a(f). Because the provisions of the statute are clear in not including movement expenses as “total expenses,” I believe we need not reach the second Chevron step to determine whether Commerce’s interpretation to the contrary is reasonable.