Sahaviriya Steel Indus. Pub. Co. Ltd. v. United States

• Decision Date: 17 June 2011
• Docket Number: No. 2010–1480.,2010–1480.
• Citation: 649 F.3d 1371,33 ITRD 1073
• Parties: SAHAVIRIYA STEEL INDUSTRIES PUBLIC COMPANY LIMITED, Plaintiff–Appellant,v.UNITED STATES, Defendant–Appellee,andUnited States Steel Corporation, Defendant–Appellee.
• Court: U.S. Court of Appeals — Federal Circuit

649 F.3d 1371

33 ITRD 1073

SAHAVIRIYA STEEL INDUSTRIES PUBLIC COMPANY LIMITED, Plaintiff–Appellant,

v.UNITED STATES, Defendant–Appellee,andUnited States Steel Corporation, Defendant–Appellee.

No. 2010–1480.

United States Court of Appeals, Federal Circuit.

June 17, 2011.

Kenneth J. Pierce, Hughes Hubbard & Reed, LLP, of Washington, DC, argued for plaintiff-appellant. With him on the brief was Robert L. Lafrankie. Of counsel was Victor S. Mroczka.Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendant-appellee the United States. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Michael D. Panzera, Attorney. Of counsel on the brief was Aaron P. Kleiner, Office of the Chief Counsel for Import Administration, United States Department of Commerce, of Washington, DC.Jeffrey D. Gerrish, Skadden, Arps, Slate, Meagher & Flom LLP, of Washington, DC, for defendant-appellee United States Steel Corporation. With him on the brief was Ellen J. Schneider.Before NEWMAN, LOURIE, and LINN, Circuit Judges.LINN, Circuit Judge.

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 ”), 714 F.Supp.2d 1263 (Ct. Int'l Trade 2010), affirming the Department of Commerce's (“Commerce”)'s final results in a changed circumstances review (“CCR”) under 19 U.S.C. § 1675(b), Final Results of Antidumping Duty Changed Circumstances Review, 74 Fed.Reg. 22,885 (May 15, 2009) (“ Final Results ”). In SSI II, the CIT held that, after revoking an antidumping duty order with respect to SSI, Commerce properly conducted a CCR to reinstate SSI in that order. 714 F.Supp.2d at 1277. Because Commerce reasonably interpreted and exercised its CCR and revocation authorities under 19 U.S.C. § 1675(b) and (d), this court affirms the CIT's decision.

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, 2006 WL 1388746 (May 17, 2006). The Order remained in effect with respect to the other subject exporters and producers. See Final Revocation Decision, 71 Fed.Reg. at 28,661. On August 1, 2006, Commerce initiated a “sunset review” of the Order, Continuation of Antidumping Duty and Countervailing Duty Orders, 72 Fed.Reg. 73,316 (Dep't of Commerce Dec. 27, 2007) (“ Sunset Review ”), as required by 19 U.S.C. § 1675(c). Following this review, Commerce published notice of continuation of the Order based on the finding that revocation of the same “would likely lead to continuation or recurrence of dumping ... and material injury to an industry in the United States....” Sunset Review, 72 Fed.Reg. at 73,318. SSI participated in this review proceeding, filing a brief in favor of full revocation of the Order. See U.S. Int'l Trade Comm'n, Pub. No. 3956, Hot–Rolled Steel Products From Argentina, China, India, Indonesia, Kazakhstan, Romania, South Africa, Taiwan, Thailand, and Ukraine 4 n. 8, 5 (2007), available at http:// www. usitc. gov/ publications/ 701_ 731/ pub 3956. pdf (“USITC Pub. No. 3956”).

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 ”), 601 F.Supp.2d 1355, 1361 (Ct. Int'l Trade 2009). The CIT dismissed the complaint as not ripe for review. Id. at 1370. In dismissing the complaint, the CIT addressed the merits of the ultra vires claim, holding that Commerce acted within its implicit and explicit authority to adopt regulations administering the antidumping statute. Id. at 1367–68. Following SSI I, Commerce issued a final determination reinstating SSI in the Order based on the finding that SSI had resumed dumping at a margin of 9.04%. Final Results, 74 Fed.Reg. at 22,886.

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, 714 F.Supp.2d at 1273–74. The CIT held that Commerce reasonably interpreted its CCR and revocation authorities under 19 U.S.C. § 1675(b) and (d), within the Chevron framework, and accordingly affirmed Commerce's Final Results. Id. at 1277. SSI timely appealed, and this court has jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

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, 510 F.3d 1370, 1372 (Fed.Cir.2007). Accordingly, this court will uphold Commerce's determination unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law.” Id. (quoting 19 U.S.C. § 1516a(b)(1)(B)(i)).

“[S]tatutory interpretations articulated by Commerce during its antidumping proceedings are entitled to judicial deference under Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984) ].” Pesquera Mares Australes Ltd. v. United States, 266 F.3d 1372, 1382 (Fed.Cir.2001). Under Chevron, the court first asks whether Congress has directly spoken to the precise question at issue; if so, the inquiry ends and the Court “must give effect to the unambiguously expressed intent of Congress.” FDA v. Brown & Williamson Tobacco Corp., 529 U.S. 120, 132, 120 S.Ct. 1291, 146 L.Ed.2d 121 (2000) (citing Chevron, 467 U.S. at 842–43, 104 S.Ct. 2778). If the statute is silent or ambiguous with respect to the issue, the court must ask whether Commerce's interpretation is based on a permissible construction of the statute. Chevron, 467 U.S. at 843, 104 S.Ct. 2778.

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 writing to immediate reinstatement in the order, as long as any exporter or producer is subject...