THYSSENKRUPP ACCIAI SPECIALI TERNI SPA v. US

Citation603 F.3d 928
Decision Date23 April 2010
Docket NumberNo. 2009-1363.,2009-1363.
PartiesTHYSSENKRUPP ACCIAI SPECIALI TERNI S.P.A. and Thyssenkrupp AST USA, Inc., Plaintiffs-Appellants, v. UNITED STATES, Gary Locke, Secretary of Commerce, United States Department of Commerce, Ron Kirk, Ambassador and United States Trade Representative, and the Office of the United States Trade Representative, Defendants-Appellees, and AK Steel Corp., Defendant, and Allegheny Ludlum Corporation, Defendant-Appellee.
CourtU.S. Court of Appeals — Federal Circuit

603 F.3d 928

THYSSENKRUPP ACCIAI SPECIALI TERNI S.P.A. and Thyssenkrupp AST USA, Inc., Plaintiffs-Appellants,
v.
UNITED STATES, Gary Locke, Secretary of Commerce, United States Department of Commerce, Ron Kirk, Ambassador and United States Trade Representative, and the Office of the United States Trade Representative, Defendants-Appellees, and
AK Steel Corp., Defendant, and
Allegheny Ludlum Corporation, Defendant-Appellee.

No. 2009-1363.

United States Court of Appeals, Federal Circuit.

April 23, 2010.


603 F.3d 929

Lorane F. Hebert, Hogan & Hartson LLP, of Washington, DC, argued for plaintiffs-appellants. With her on the brief were Lewis E. Leibowitz, T. Clark Weymouth, Craig A. Lewis, Jonathan T. Stoel, and Brian S. Janovitz.

Claudia Burke, Senior Trial Counsel, Commercial Litigation Branch, Civil Division, United States Department of Justice, of Washington, DC, argued for defendants-appellees United States, et al. With her on the brief were Tony West, Assistant Attorney General, Jeanne E. Davidson, Director, and Patricia M. McCarthy, Assistant Director.

Mary T. Staley, Kelley Drye & Warren LLP, of Washington, DC, argued for defendant-appellee Allegheny Ludlum Corporation. With her on the brief were David A. Hartquist and Daniel P. Lessard.

Before LOURIE, GAJARSA, and MOORE, Circuit Judges.

LOURIE, Circuit Judge.

ThyssenKrupp Acciai Speciali Terni SpA and ThyssenKrupp AST USA, Inc. (collectively "ThyssenKrupp") appeal from the decision of the United States Court of International Trade holding that the Department of Commerce ("Commerce") reasonably interpreted section 129 of the Uruguay Round Agreement Act ("URAA") when it declined to correct an alleged clerical error in the original investigation that was not raised in the World Trade Organization dispute settlement proceeding. See ThyssenKrupp Acciai Speciali, Terni S.P.A. v. United States, 602 F.Supp.2d 1362 (Ct. Int'l Trade 2009) ("ThyssenKrupp") (upholding Commerce's determination in Implementation of the Findings of the WTO Panel in US — Zeroing (EC), 72 Fed.Reg. 25,261 (Dep't Commerce May 4, 2007) and accompanying Issues and Decision Mem. (Aug. 20, 2007) ("Section 129 Determination")). Because the court properly sustained Commerce's reasonable interpretation of the statute, we affirm.

603 F.3d 930
BACKGROUND

Three adjudicative processes are relevant to this case: (A) Commerce's original antidumping determination against ThyssenKrupp, including inter alia, its challenge before the Court of International Trade and subsequent stipulated-to dismissal; (B) the successful challenge before the dispute settlement body of the World Trade Organization ("WTO") to the U.S. practice of "zeroing" in antidumping determinations; and (C) Commerce's implementation of the WTO determination pursuant to 19 U.S.C. § 3538 ("section 129") and ThyssenKrupp's challenge to that determination, which is now before this court. We take them in turn.

A. Commerce's Original Antidumping Determination and Proceedings in the Court of International Trade

Under the antidumping statute, Commerce imposes antidumping duties on imported merchandise that "is being, or is likely to be, sold in the United States at less than its fair value" and that harms domestic industry. 19 U.S.C. § 1673. Sales at less than fair value are those where 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). 19 U.S.C. § 1677(35)(B). One methodology for determining the appropriate dumping margin is "average-to-average" comparison of normal value and export price, according to which Commerce divides the products under investigation into groups (based on model and level of trade) and calculates the average export price and average normal value of each group. 19 C.F.R. § 351.414(c)(1). The dumping margin for each group is calculated as the amount by which the weighted-average normal value exceeds the weighted-average export price. The dumping margins for the groups are then aggregated to calculate an overall weighted-average dumping margin for the transactions being investigated. See 19 U.S.C. § 1677(35)(B).

In the context of average-to-average comparisons, "zeroing" consists of aggregating dumping margins greater than zero, while treating "negative" dumping margins (groups for which the weighted-average export price exceeded the weighted average normal value) as if they were zero. Commerce's "zeroing" methodology has been challenged at various times and upheld as a reasonable construction of the URAA by the Court of International Trade, Serampore Indus. Pvt. Ltd. v. U.S. Dep't of 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), and by this court, Timken Co. v. United States, 354 F.3d 1334, 1342 (Fed.Cir.), cert. denied 543 U.S. 976, 125 S.Ct. 412, 160 L.Ed.2d 352 (2004); Corus Staal BV v. Dep't of Commerce, 395 F.3d 1343 (Fed.Cir.2005), cert. denied 546 U.S. 1089, 126 S.Ct. 1023, 163 L.Ed.2d 853 (2006); Corus Staal BV v. United States, 502 F.3d 1370 (Fed.Cir. 2007).

In July 1999, Commerce issued an amended final determination in its antidumping duty investigation of stainless steel sheet and strip in coils ("SSSS") from Italy, finding that ThyssenKrupp was dumping at a margin of 11.23%. Amended Final Determination of Sales at Less than Fair Value: Stainless Steel Sheet and Strip in Coils from Italy, 64 Fed.Reg. 40,567, 40,570 (Dep't Commerce July 27, 1999).1 In making its original determination that SSSS was being sold at less than fair value, Commerce used the average-to-average

603 F.3d 931
comparison methodology and adhered to its practice of "zeroing" in comparing aggregate normal value to aggregate export price

ThyssenKrupp challenged the determination at the Court of International Trade on various grounds, including a challenge to the figures now at issue, albeit on different grounds. The court affirmed in part, reversed in part, and remanded the determination to Commerce. Acciai Speciali Terni S.p.A. v. United States, 142 F.Supp.2d 969 (Ct. Int'l Trade 2001).

Before the Court of International Trade reviewed Commerce's redetermination, the parties stipulated to a dismissal of the action, without prejudice and effective January 23, 2002. ThyssenKrupp states that its agreement to dismiss its challenge to the original investigation was a result of the publication of Commerce's final results of its first administrative review, in which Commerce calculated a dumping margin of 0.66% for imports between January 1999 and June 2000. ThyssenKrupp explains in its briefing that its agreement to the dismissal, terminating its challenge to the findings of dumping of SSSS, was a result of the significantly lower duties and cash deposit rate calculated for future entries.

B. Proceedings before the World Trade Organization

In February 2004, the European Communities ("EC") asked the WTO to establish a dispute settlement panel to determine the legality of the United States' use of a zeroing methodology in its determination of antidumping duties. Request for the Establishment of a Panel by the European Communities, United States — Laws, Regulations and Methodology for Calculating Dumping Margins (Zeroing), WT/ DS294/7/Rev.1 at 1, 11 (Feb. 19, 2004). The EC specifically challenged fifteen investigations, including Commerce's investigation of SSSS from Italy. Id. at para. 7.9 &amp...

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