Arcelormittal USA.. Inc. v. United States
Decision Date | 04 October 2010 |
Docket Number | Nos. 2009-1572, 2009-1573.,s. 2009-1572, 2009-1573. |
Citation | 621 F.3d 1351 |
Parties | UNITED STATES STEEL CORPORATION, Plaintiff-Appellant, and Nucor Corporation, Plaintiff-Appellant, and Gallatin Steel Company, SSAB North American Division, Steel Dynamics, Inc., and Arcelormittal USA, Inc., Plaintiffs, v. UNITED STATES, Defendant-Appellee, and Corus Staal BV, Defendant-Appellee. |
Court | U.S. Court of Appeals — Federal Circuit |
OPINION TEXT STARTS HERE
Jeffrey D. Gerrish, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, argued for plaintiff-appellant United States Steel Corporation. With him on the brief were Robert E. Lighthizer, Ellen J. Schneider and Luke A. Meisner. Of counsel was James C. Hecht.
Timothy C. Brightbill, Wiley Rein LLP, of Washington, DC, argued for plaintiff-appellant Nucor Corporation. With him on the brief were Alan H. Price and Maureen E. Thorson.
Claudia Burke, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee United States. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director. Of counsel on the brief was Sapna Sharma, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.
Jamie B. Beaber, Steptoe & Johnson LLP, of Washington, DC, argued for defendant-appellee Corus Staal BV. With him on the brief were Joel D. Kaufman and Alice A. Kipel. Of counsel was Richard O. Cunningham.
Before LOURIE, LINN, and DYK, Circuit Judges.
United States Steel Corp. (“U.S. Steel”) and Nucor Corp. (“Nucor” and collectively “Appellants”) appeal from the decision of the United States Court of International Trade upholding the Department of Commerce's (“Commerce's”) determination of antidumping duties against Corus Staal (“Corus”) for imports of hot-rolled carbon steel flat products from the Netherlands. U.S. Steel Corp. v. United States, 637 F.Supp.2d 1199 (Ct. Int'l Trade 2009) (“ U.S. Steel ”).
Because the Court of International Trade properly found that Commerce's interpretation of its governing statute is in accordance with law, we affirm.
Under the antidumping statute, Commerce imposes duties on imported merchandise that “is being, or is likely to be, sold in the United States at less than fair value” and harms domestic industry. 19 U.S.C. § 1673. Sales at less than fair value are those sales for which the “normal value” (the price a producer charges in its home market) exceeds the “export price” (the price of the product in the United States) or “constructed export price.” Id. § 1677(35)(A). 1 Commerce then calculates a “dumping margin” for a particular product subject to review, equal to “the amount by which the normal value exceeds the export price or constructed export price.” Id.; see also Koyo Seiko Co. v. United States, 258 F.3d 1340, 1342 (Fed.Cir.2001). A “weighted average dumping margin” across the products is calculated by “dividing the aggregate dumping margins ... by the aggregate export prices ... of such exporter or producer.” 19 U.S.C. § 1677(35)(B).
In November 2001, Commerce issued an antidumping duty order against Corus imposing a dumping margin of 2.59%. Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands, 66 Fed.Reg. 59,565 (Dep't Commerce Nov. 29, 2001) (amended final determination of sales at less than fair value). In determining the dumping margin, Commerce adhered to its existing practice at the time of “zeroing,” by which Commerce assigns a value of zero to sales margins of merchandise sold at or above fair value prices. See Corus Staal BV v. Dep't of Commerce, 395 F.3d 1343, 1345-46 (Fed.Cir.2005). Thus, “dumping margins for sales below normal value are not offset by ‘negative dumping margins' for those sales made above normal value.” Corus Staal BV v. United States, 502 F.3d 1370, 1372 (Fed.Cir.2007). Commerce's zeroing methodology had earlier been challenged and upheld as a reasonable interpretation of the antidumping statute. See id.; Timken Co. v. United States, 354 F.3d 1334, 1342 (Fed.Cir.2004) ( ); see also Serampore Indus. v. U.S. Dep't Commerce, 675 F.Supp. 1354, 1360-61 (Ct. Int'l Trade 1987); Bowe Passat Reinigungs-Und Waschereitechnik Gmbh v. United States, 926 F.Supp. 1138, 1150 (Ct. Int'l Trade 1996).
However, the U.S. practice of zeroing-both as a general methodology and as applied in specific investigations, including the investigation underlying this appeal-was successfully challenged by the European Communities before the World Trade Organization's (“WTO's”) Dispute Settlement Body. Panel Report, United States-Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/R (October 31, 2005), and the challenge was subsequently upheld by that organization's Appellate Body, United States-Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/R (May 15, 2006) (upholding the Dispute Settlement Panel's finding that the United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the General Agreement on Tariffs and Trade 1994). The investigation of hot-rolled steel from the Netherlands was one of the 15 investigations challenged.
19 U.S.C. § 3533(f). The statute continues by listing the requirements for agency action:
19 U.S.C. § 3533(g).
Section 123 describes how Commerce and the United States Trade Representative are to implement an adverse report from the WTO. Pursuant to Section 123, the United States Trade Representative consulted with appropriate Congressional committees and private sector committees, and Commerce provided for public comment before determining whether and how to change its practice. Following those consultations, Commerce determined that it would cease its zeroing practice in new and pending investigations using average-to-average comparison methodology. See Antidumping Proceedings: Calculation of the Weighted Average Dumping Margin During an Antidumping Duty Investigation; Final Modification, 71 Fed.Reg. 77, 722 (Dec. 27, 2006) (“Section 123 Determination”). 2 Instead, Commerce determined to use a methodology of “offsetting,” pursuant to which sales made at less than fair value are offset by those made above fair value. This means that some of the dumping margins used to calculate a weighted-average dumping margin will be negative.
The other relevant statutory section, section 129, provides in relevant part as follows:
19 U.S.C. § 3538(b).
Section 129 applies to...
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