Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement v. U.S., AZ-NM-TX-FL

Citation13 F.3d 398
Decision Date05 January 1994
Docket NumberNo. 93-1239,AZ-NM-TX-FL,93-1239
PartiesThe AD HOC COMMITTEE OFPRODUCERS OF GRAY PORTLAND CEMENT, Plaintiff-Appellant, v. The UNITED STATES, Defendant-Appellee, Cemex S.A., Defendant-Appellee, and Apasco, S.A. de C.V., Defendant-Appellee.
CourtUnited States Courts of Appeals. United States Court of Appeals for the Federal Circuit

Martin M. McNerney, Kilpatrick & Cody, New York City, argued for plaintiff-appellant. With him on the brief were Joseph W. Dorn and Michael P. Mabile.

A. David Lafer, Sr. Trial Counsel, Commercial Litigation Branch, Dept. of Justice, Washington, DC, argued for defendant-appellee, U.S. With him on the brief were Stuart E. Schiffer, Acting Asst. Atty. Gen. and David M. Cohen, Director. Also on the brief were Stephen J. Powell, Chief Counsel for Import Admin., Berniece A. Browne, Sr. Counsel for Antidumping Litigation and Terrence J. McCartin, Attorney-Advisor, Office of the Chief Counsel for Import Admin., U.S. Dept. of Commerce.

Thomas R. Graham, Skadden, Arps, Slate, Meagher & Flom, Washington, DC, argued for defendant-appellee, Cemex, S.A. With him on the brief was John J. Burke.

John H. Blatchford, O'Connor & Hannan, Washington, DC, was on the brief for defendant-appellee, Apasco, S.A. de C.V.

Irwin P. Altschuler, David R. Amerine and Ronald M. Wisla, Manatt, Phelps & Phillips, Washington, DC, represented defendant-appellee, Cemex, S.A.

Before MAYER and LOURIE, Circuit Judges, and LAY, Senior Circuit Judge. *

LAY, Senior Circuit Judge.

This is an appeal from a decision of the Court of International Trade brought by the Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement. 1 The Ad Hoc Committee filed an antidumping petition that resulted in investigations of imports of cement and cement clinker from Mexico. The Committee alleged that imports of gray portland cement and cement clinker from Mexico were being, or were likely to be, sold in the United States at less than fair value within the meaning of 19 U.S.C. Sec. 1673 (1988). The Committee alleged that as a result of the unfair price, an industry in the United States was materially injured or threatened with material injury by reason of these imports. The International Trade Administration of the United States Department of Commerce (Commerce) compared the United States and home-market sales of three Mexican producers of cement, including defendant-intervenors Cemex, S.A., and Apasco, S.A. de C.V., as well as Cementos Hidalgo, S.C.L., and reached a final determination that Mexican cement and clinker were being, or were likely to be, sold in the United States at less than fair value. Gray Portland Cement and Clinker from Mexico, 55 Fed.Reg. 29,244 (Dep't Comm.1990). The Antidumping Act provides that a foreign producer engages in dumping to the extent that the United States price (USP), 2 as calculated pursuant to 19 U.S.C. Sec. 1677a, is less than the foreign market value (FMV) 3 of the same or similar merchandise, calculated pursuant to 19 U.S.C. Sec. 1677b. 4 Following its determination that dumping had occurred, and a separate finding by the International Trade Commission that a United States industry was being materially injured by imports of gray portland cement and cement clinker from Mexico, 5 Commerce published an antidumping duty order reflecting its calculations of the manufacturers' margins of dumping. Gray Portland Cement and Clinker from Mexico, 55 Fed.Reg. 35,443 (Dep't Comm.1990).

The Ad Hoc Committee challenged Commerce's calculations of the dumping margins in the Court of International Trade. Ad Hoc Committee of AZ-NM-TX-FL Producers of Gray Portland Cement v. United States, 787 F.Supp. 208 (Ct.Int'l Trade 1992). The court 6 upheld Commerce's deduction from foreign market value of the costs of transporting cement from the manufacturing plants to storage facilities in Mexico prior to its sale to home-market (Mexican) customers. Id. We reverse and remand.

I.

The sole issue on appeal is whether the foreign market value provision of the antidumping statute, 19 U.S.C. Sec. 1677b, authorizes a deduction from foreign market value of pre-sale transportation costs within the exporting country for goods sold within that country. The parties agree that although the Act requires Commerce to deduct transportation costs from USP, there is no specific statutory authorization for Commerce to deduct home-market transportation expenses from its calculations of FMV. In the past, Commerce determined whether to deduct home-market transportation costs by looking to the "circumstances of sale" provision of 19 U.S.C. Sec. 1677b(a)(4) (1988). 7 This provision and its accompanying regulations, see 19 C.F.R. Sec. 353.56(a)(1) (1993), require a direct relationship between an expense and the sale at issue. Commerce's longstanding general practice, therefore, was to deduct from foreign market value only those transportation costs incurred after the date of sale, when the direct relationship was established. See, e.g., Antifriction Bearings (Other Than Tapered Roller Bearings) and Parts Thereof from the Federal Republic of Germany, 54 Fed.Reg. 18,992, 19,049 (Comment 33) (Dep't Comm.1989) (final determination); Television Receivers, Monochrome and Color, from Japan, 53 Fed.Reg. 4050, 4052 (Comment 18) (Dep't Comm.1988) (final results); Color Television Receivers from Korea, 53 Fed.Reg. 24,975, 24,988 (Comment 72) (Dep't Comm.1988) (final results); Kraft Condenser Paper from Finland, 47 Fed.Reg. 3813 (Dep't Comm.1982) (final results). Pre-sale transportation expenses were treated as "indirect expenses," deductible from FMV only when ESP was used as the basis for the United States price. See 19 C.F.R. Sec. 353.41(e)(2) (1993). In the case at bar, however, Commerce altered this practice and deducted pre-sale inland freight expenses while conducting a purchase price, rather than the exporter's sale price, comparison. In the present case, Commerce does not rely on the circumstances of sale provision, but on its inherent power as the administering authority to fill "gaps" in the statutory framework in reasonable ways consistent with the objectives of the antidumping law. 8

Commerce argues, and the Court of International Trade agreed, that it has the discretion to deduct home-market transportation costs from foreign market value because the statute is silent and doing so furthers its primary goal when calculating FMVs and USPs of comparing "apples with apples," i.e., comparing prices of merchandise in the United States with those in the foreign market at a similar point in the chain of commerce. Ad Hoc Comm., 787 F.Supp. at 212-13 (citing Smith-Corona, 713 F.2d at 1578). The deduction from FMV, when combined with the statutorily mandated deduction from USP, means that on both sides, ex-factory prices will be the basis for comparison. Id. Without the deduction from FMV, the comparison is apples to oranges: ex-factory price in the United States but the ex-warehouse price in the foreign market.

The Ad Hoc Committee disputes the initial premise that the statute is silent. In its view, the fact that the deduction is included in the provisions for USP but not for FMV means that Congress did not intend for home-market transportation costs to be deducted.

II.

It is well established that where Congress has included specific language in one section of a statute but has omitted it from another, related section of the same Act, it is generally presumed that Congress intended the omission. Russello v. United States, 464 U.S. 16, 23, 104 S.Ct. 296, 300, 78 L.Ed.2d 17 (1983) (citing United States v. Wong Kim Bo, 472 F.2d 720, 722 (5th Cir.1972)); see also United States v. Azeem, 946 F.2d 13, 17 (2d Cir.1991); United States v. Espinoza-Leon, 873 F.2d 743, 746 (4th Cir.), cert. denied, 492 U.S. 924, 109 S.Ct. 3257, 106 L.Ed.2d 602 (1989); Arizona Elec. Power Cooperative, Inc. v. United States, 816 F.2d 1366, 1375 (9th Cir.1987). Absent strong evidence to the contrary, "courts must presume that a legislature says in a statute what it means and means in a statute what it says there." Connecticut Nat'l Bank v. Germain, --- U.S. ----, ----, 112 S.Ct. 1146, 1149, 117 L.Ed.2d 391 (1992).

The applicability of this principle was made clear in Zenith Electronics Corp. v. United States, 988 F.2d 1573 (Fed.Cir.1993), where we held that Commerce erred when it adjusted both the USP and the FMV to account for Japanese commodity taxes that were collected on merchandise sold in Japan, but not collected on merchandise exported to the United States. We noted that 19 U.S.C. Sec. 1677a(d)(1)(C) (1988) explicitly requires Commerce to increase USP by the amount of taxes that the exporting country would have assessed on the merchandise if it had been sold in the home market. Zenith, 988 F.2d at 1580. Commerce applied the circumstances of sale provision to adjust FMV in an effort to achieve tax neutrality in its comparisons, reasoning that adjusting USP to account for the forgiven commodity tax would cause an increase in the dumping margin not directly related to less-than-fair-value sales. Id. at 1578. We rejected this approach, concluding that "[t]he Act is not silent about the disparity created between FMV and USP when a foreign government forgives commodity taxes on exports. Section 1677a(d)(1)(C) expressly directs Commerce to adjust USP. In the face of an unambiguous statutory directive, Commerce may only effect tax adjustments under that section." Id. at 1582.

In the circumstances of this case, we believe that had Congress intended to deduct home-market transportation costs from FMV, it would have made that intent clear. FMV and USP are intimately related concepts, given full meaning only by their relationship to one another. The Antidumping Act revolves around the difference between the two. See 19 C.F.R. Sec. 353.2(f)(1) (1993) (defining dumping margin with reference to USP and FMV). In slightly different forms the USP provision, 19...

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