Agro Dutch Industries Ltd. v. United States

United States Court of Appeals for the Federal Circuit

2007-1011

AGRO DUTCH INDUSTRIES LIMITED,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee,

and

COALITION FOR FAIR PRESERVED MUSHROOM TRADE,

Defendant-Appellee.

Lizbeth R. Levinson, Garvey Schubert Barer, of Washington, DC, argued for
plaintiff-appellant. With her on the brief was Ronald M. Wisla.

Claudia Burke, Attorney, Commercial Litigation Branch, Civil Division, United
States Department of Justice, of Washington, DC, argued for defendant-appellee,
United States. On the brief were Peter D. Keisler, Acting Attorney General, Jeanne E.
Davidson, Director, Patricia M. McCarthy, Assistant Director, and Richard P. Schroeder,
Attorney. Of counsel on the brief was Matthew D. Walden, Attorney, Office of the Chief
Counsel for Import Administration, United States Department of Commerce, of
Washington, DC.

Michael J. Coursey and Adam H. Gordon, Kelley, Drye, Collier, Shannon, LLP, of
Washington, DC, for defendant-appellee, Coalition for Fair Preserved Mushroom Trade.

Appealed from: United States Court of International Trade

Senior Judge R. Kenton Musgrave
 United States Court of Appeals for the Federal Circuit

2007-1011

AGRO DUTCH INDUSTRIES LIMITED,

Plaintiff-Appellant,

v.

UNITED STATES,

Defendant-Appellee,

and

COALITION FOR FAIR PRESERVED MUSHROOM TRADE,

Defendant-Appellee.

_____________________________

DECIDED: November 20, 2007
_____________________________

Before MICHEL, Chief Judge, MOORE, Circuit Judge, and COTE, District Judge. *

COTE, District Judge.

Plaintiff Agro Dutch Industries Limited (“Agro”) appeals from a decision of the

United States Court of International Trade affirming the Department of Commerce’s

(“Commerce”) finding of duty absorption during the fourth administrative review of an

antidumping duty order governing the importation of certain preserved mushrooms from

India. Agro Dutch Indus., Ltd. v. United States, No. 04-493, 2006 WL 785463 (Ct. Int’l

Trade Mar. 28, 2006). Agro contends that Commerce did not have authority to make

*
Honorable Denise Cote, District Judge, United States District Court for the
Southern District of New York, sitting by designation.
such a finding because Agro did not sell merchandise subject to the antidumping order

“through an importer who is affiliated with” Agro, as required by 19 U.S.C. § 1675(a)(4),

but rather acted as its own importer of record for the relevant sales. Commerce

counters by arguing that (1) Agro failed to exhaust its remedies on this issue because it

did not raise this argument during the proceedings before Commerce, and (2) where a

foreign producer or exporter acts as its own importer of record, it is “affiliated” with itself

within the meaning of § 1675(a)(4). The court below held that Agro’s appeal on this

subject presented a “pure question of law” that could be heard on the merits despite

Agro’s failure to exhaust, but affirmed Commerce’s interpretation of § 1675(a)(4) and its

finding of duty absorption. Agro Dutch, 2006 WL 785463, at *10-14. Agro appeals the

latter ruling, and we reverse.

BACKGROUND

The following facts are not disputed. Agro is a producer and exporter of certain

preserved mushrooms subject to an antidumping order issued on February 19, 1999.

Notice of Amendment of Final Determination of Sales at Less Than Fair Value and

Antidumping Duty Order: Certain Preserved Mushrooms From India, 64 Fed. Reg. 8311

(Feb. 19, 1999) (“Antidumping Order”). On February 3, 2003, Commerce published a

notice of opportunity to request an annual administrative review of the Antidumping

Order. Antidumping or Countervailing Duty Order, Finding, or Suspended Investigation;

Opportunity To Request Administrative Review, 68 Fed. Reg. 5272 (Feb. 3, 2003). By a

letter dated February 28, 2003, defendant Coalition for Fair Preserved Mushroom Trade

(“Coalition”) requested, pursuant to 19 C.F.R. § 351.213, that Commerce conduct an

annual review of the Antidumping Order at issue here, and further requested, pursuant

2007-1011 2
to 19 C.F.R. § 351.213(j), that Commerce determine whether antidumping duties had

been absorbed by Agro and several other companies subject to the Antidumping Order.

On March 25, 2003, Commerce initiated the fourth administrative review of the

Antidumping Order. Initiation of Antidumping and Countervailing Duty Administrative

Reviews, 68 Fed. Reg. 14,394 (Mar. 25, 2003). This review covered the period

between February 1, 2002 and January 31, 2003 (the “POR”). On September 25, 2003,

Commerce stated in a memorandum placed in the administrative record that, although it

had initially determined that it would not conduct a duty absorption analysis in

connection with the annual review because Agro (and several other companies subject

to the Antidumping Order) made only export price sales to the United States, 1 it now

concluded that because “they also act as importer of record for certain . . . of their U.S.

sales . . . it is appropriate to conduct a duty absorption analysis with respect to these

respondents in accordance with our past practice.”

Commerce notified Agro of this determination in a letter of September 30, 2003.

In this letter, Commerce provided Agro an opportunity to place into the record, no later

than January 9, 2004, proof that unaffiliated purchasers will ultimately pay the

antidumping duties assessed during the POR on those sales for which Agro acted as

the importer of record, and warned that Commerce would deem duty absorption to have

occurred in the absence of such proof. Agro did not respond to the letter.

On March 8, 2004, Commerce published the preliminary results of the fourth

administrative review. Certain Preserved Mushrooms from India: Preliminary Results of

Antidumping Duty Administrative Review, 69 Fed. Reg. 10,659 (Mar. 8, 2004)

1
See 19 U.S.C. § 1677a(a). The relationship between this provision and
§ 1675(a)(4) will be addressed below.

2007-1011 3
(“Preliminary Results”). In the Preliminary Results, Commerce reiterated the rationale

offered in the September 25 memorandum for conducting a duty absorption inquiry

under the facts presented here, with the addition of a citation to section 751(a)(4) of the

Tariff Act of 1930 (codified at 19 U.S.C. § 1675(a)(4)). Id. at 10,661. After noting

Agro’s failure to provide any evidence in response to the letter of September 30,

Commerce preliminarily found that Agro had absorbed antidumping duties during the

POR on those sales for which it was the importer of record. Id.

In response to the Preliminary Results, Agro submitted a case brief on June 10,

2004, challenging, inter alia, Commerce’s duty absorption finding. At this stage, Agro’s

sole contention was that there was evidence in the record that Agro’s customers often

pay the antidumping duty directly to the Customs Service, even though Agro is the

importer of record, and thus duty absorption did not take place during the POR. Finding

this submission both untimely and insufficient, Commerce confirmed its preliminary duty

absorption finding on August 20, 2004. Certain Preserved Mushrooms From India:

Final Results of Antidumping Duty Administrative Review, 69 Fed. Reg. 51,630, 51,631

(Aug. 20, 2004) (“Final Results”).

Agro filed an appeal with the Court of International Trade on October 1, 2004,

challenging Commerce’s duty absorption finding, along with several other findings made

in the Final Results. The Court of International Trade affirmed Commerce’s absorption

determination on the grounds noted above. Agro Dutch, 2006 WL 785463, at *10-14.

This appeal followed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

2007-1011 4
 DISCUSSION

The purpose of the antidumping statute is to prevent foreign goods from being

sold at unfairly low prices in the United States to the injury of existing or potential United

States producers. FAG Italia, S.p.A. v. United States, 291 F.3d 806, 808-09 (Fed. Cir.

2002). To that end, if Commerce and the International Trade Commission (“ITC”)

determine that a foreign exporter or producer has been or is likely to be selling goods in

the United States at less than fair value to the detriment of United States producers,

Commerce will issue an antidumping order assessing duties on that foreign exporter or

producer. See 19 U.S.C. §§ 1673-1673d.

Once an antidumping order has been issued, the statute requires that the order

be periodically reviewed. First, if requested, Commerce will review the order annually to

update the applicable duty. Id. § 1675(a)(1)(B). This is referred to as the “annual

review.” Second, the order is automatically terminated after five years unless, upon

review in accordance with the procedures established under 19 U.S.C. § 1675a,

Commerce determines that revocation of the duty “would be likely to lead to

continuation or recurrence of dumping,” and the ITC determines that revocation “would

be likely to lead to . . . material injury” to the relevant United States industry. Id.

§ 1675(c)(1). This is referred to as the “sunset review.” Third, during the second or

fourth annual review after the publication of an antidumping order, Commerce, “if

requested, shall determine whether antidumping duties have been absorbed by a

foreign producer or exporter subject to the order if the subject merchandise is sold in the

United States through an importer who is affiliated with such foreign producer or

exporter.” Id. § 1675(a)(4). This is referred to as the “duty absorption inquiry.”

2007-1011 5
 As we have previously noted, “[t]he purpose of a duty absorption inquiry is to

ensure that foreign exporters [subject to antidumping orders] do not undermine the

purpose of the antidumping laws by ‘absorbing’ the duty rather than passing the duty on

to United States purchasers in the form of higher prices.” FAG Italia, 291 F.3d at 809.

A finding of duty absorption during the second or fourth annual review does not affect

the duty imposed as a result of such review. See Uruguay Round Agreements Act:

Statement of Administrative Action (“SAA”), H.R. Doc. No. 103-316, at 885 (1994),

reprinted in 1994 U.S.C.C.A.N. 4040, 4210. Rather, Commerce reports the findings

made during the absorption inquiry to the ITC for consideration during the sunset

review. 19 U.S.C. § 1675(a)(4); see also id. § 1675a(a)(1)(D) (requiring ITC to consider

the results of the duty absorption review during the sunset review). Thus, “[t]he

consequence of a finding of duty absorption by Commerce is that the anti-dumping

order is less likely to be revoked as a result of a sunset review,” as such a finding

indicates that the foreign “‘producer or exporter would be able to market more

aggressively should the order by revoked as a result of a sunset review.’” FAG Italia,

291 F.3d at 810 (quoting SAA at 886, reprinted in 1994 U.S.C.C.A.N. at 4211). This

appeal concerns Commerce’s authority to conduct a duty absorption inquiry under

§ 1675(a)(4) during the second or fourth annual review when a foreign exporter or

producer acts as its own importer of record.

I

Agro’s sole contention on appeal is that Commerce was not empowered to

conduct a duty absorption inquiry during the fourth annual review of the Antidumping

Order because Agro did not sell its merchandise “in the United States through an

2007-1011 6
importer who is affiliated” with Agro, as required by § 1675(a)(4), but rather acted as its

own importer of record for the relevant sales during the POR. 2 Before discussing the

merits of this challenge, however, we must first determine whether Agro’s appeal should

be dismissed on exhaustion grounds.

It is undisputed that Agro failed to raise the argument that forms the basis for the

instant appeal during the proceedings before Commerce. The court below nevertheless

held that “[t]o the extent Agro Dutch’s argument implicates a pure question of law, it

may be addressed” on appeal. In the circumstances presented here, we find that the

court below did not abuse its discretion in reaching this conclusion.

As we recently reaffirmed, the application of “exhaustion principles in trade cases

is subject to the discretion of the judge of the Court of International Trade.” Corus Staal

BV v. United States, No. 06-1652, 2007 WL 2741470, at *9 (Fed. Cir. Sept. 21, 2007);

see also 28 U.S.C. § 2637(d). In the exercise of this discretion, the Court of

International Trade has developed and refined a “pure legal question” exception to the

exhaustion requirement in trade cases. See Consol. Bearings Co. v. United States, 166

F. Supp. 2d 580, 587 (Ct. Int’l Trade 2001) (collecting cases), rev’d 348 F.3d 997, 1003

(Fed. Cir. 2003). 3 Without passing upon the precise contours of that doctrine as

articulated by the Court of International Trade or minimizing the importance of the

exhaustion requirement, see Corus Staal, 2007 WL 2741470, at *7-8, we conclude that

2
Commerce’s duty absorption finding was made only with respect to those
sales for which Agro acted as the importer of record. Final Results, 69 Fed. Reg. at
51,631. Thus, these are the only sales relevant here.
3
On appeal in Consolidated Bearings, we concluded that additional
development of the factual record, rather than “[s]tatutory construction alone,” was
necessary to address adequately the plaintiff’s claims, and thus held that it was not
appropriate to apply the “pure legal question” exception in that case. 348 F.3d at 1003.

2007-1011 7
the court below did not abuse its discretion in finding that Agro’s argument regarding the

proper interpretation of § 1675(a)(4) presents a “pure question of law” that can be

addressed on appeal despite Agro’s failure to raise such an argument in the

proceedings before Commerce. Unlike Consolidated Bearings, “[s]tatutory construction

alone” is sufficient to resolve the merits of the argument raised by Agro here, 348 F.3d

at 1003, as Agro has now abandoned the evidentiary arguments raised in its case brief

before Commerce regarding the duty absorption issue. Thus, we will proceed to

address the merits of Agro’s claim. 4

II

We review de novo whether Commerce’s interpretation of a governing statutory

provision is in accordance with law, but we do so within the framework established by

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984).

See, e.g., Elkem Metals Co. v. United States, 468 F.3d 795, 800 (Fed. Cir. 2006).

Under Chevron, “a reviewing court must first ask ‘whether Congress has directly spoken

to the precise question at issue.’” FDA v. Brown & Williamson Tobacco Corp., 529 U.S.

120, 132 (2000) (quoting Chevron, 467 U.S. at 842). “If Congress has done so, the

4
Citing Biovin v. U.S. Airways, Inc., 446 F.3d 148, 156 (D.C. Cir. 2006),
Commerce argues that this exception cannot be applied because Commerce’s
interpretations of the antidumping statute are entitled to deference, and that without
additional development of the record in this case, such deference cannot properly be
accorded. It is well established that “statutory interpretations articulated by Commerce
during its antidumping proceedings are entitled to judicial deference under Chevron.”
Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed. Cir. 2001).
Commerce has not persuasively articulated, however, how additional proceedings
would further develop the interpretation offered here. During the conduct of the annual
review -- for example, in the letter of September 30, 2003 and in the Preliminary Results
-- and on appeal both below and before this Court, Commerce has had an opportunity
to articulate and defend its interpretation of the statute. That interpretation will be
accorded the appropriate deference under Chevron.

2007-1011 8
inquiry is at an end; the court ‘must give effect to the unambiguously expressed intent of

Congress.’” Id. (quoting Chevron, 467 U.S. at 843). It is only “[i]n the absence of clear

direction from the statute,” that we will then proceed to “ask whether there is ambiguous

statutory language that might authorize the agency to fill a statutory gap,” and, in turn,

“whether Commerce’s interpretation of ambiguous statutory language is based on a

permissible interpretation of the statute.” FAG Italia, 291 F.3d at 815. As the Supreme

Court has made clear, however, “an agency’s interpretation of a statute is not entitled to

deference when it goes beyond the meaning that the statute can bear.” MCI Telecomm.

v. AT&T Co., 512 U.S. 218, 229 (1994).

The dispute between the parties focuses on the first sentence of 19 U.S.C.

§ 1675(a)(4). That sentence reads, in full:

During any review under this subsection initiated 2 years or 4 years after
the publication of an antidumping duty order under section 1673e(a) of this
title, the administering authority, if requested, shall determine whether
antidumping duties have been absorbed by a foreign producer or exporter
subject to the order if the subject merchandise is sold in the United States
through an importer who is affiliated with such foreign producer or
exporter.

19 U.S.C. § 1675(a)(4) (emphasis added). It is not contested that the review at issue

here was “initiated . . . 4 years after the publication of” the Antidumping Order, or that a

“request[]” was made by the Coalition that Commerce conduct a duty absorption inquiry.

The only question that must be resolved here is whether Agro sold its merchandise

through an “affiliated” importer when it acted as its own importer of record -- i.e.,

whether Agro can be “affiliated” with itself.

2007-1011 9
 In seeking the unambiguous meaning of this language, we begin with the

statute’s definition of the term “affiliated.” See Crawfish Processors Alliance v. United

States, 477 F.3d 1375, 1379 (Fed. Cir. 2007). 19 U.S.C. § 1677(33) states:

The following persons shall be considered to be “affiliated” or “affiliated
persons”:

(A) Members of a family, including brothers and sisters (whether by
the whole or half blood), spouse, ancestors, and lineal
descendants.

(B) Any officer or director of an organization and such organization.

(C) Partners.

(D) Employer and employee.

(E) Any person directly or indirectly owning, controlling, or holding
with power to vote, 5 percent or more of the outstanding voting
stock or shares of any organization and such organization.

(F) Two or more persons directly or indirectly controlling, controlled
by, or under common control with, any person.

(G) Any person who controls any other person and such other
person.

For purposes of this paragraph, a person shall be considered to control
another person if the person is legally or operationally in a position to
exercise restraint or direction over the other person. 5

Commerce does not claim that one of the above-listed definitions conclusively

demonstrates that a single person or entity that plays two discrete roles during the

dumping process -- e.g., acting both as exporter and importer, as Agro did here -- can

5
Although § 1677(33) speaks of “persons,” this definition governs the standard for
affiliation between corporate entities as well. See Crawfish Processors Alliance, 477
F.3d at 1378-82; see also 1 U.S.C. § 1 (“In determining the meaning of any Act of
Congress, unless the context indicates otherwise . . . the words ‘person’ and ‘whoever’
include corporations, companies, associations, firms, partnerships, societies, and joint
stock companies, as well as individuals.”)

2007-1011 10
be considered “affiliated” with itself. Commerce instead argues that § 1677(33)

generally, and § 1677(33)(G) in particular, establishes that affiliation exists where there

is a “control relationship,” and because “an entity may control itself,” an entity can also

be considered as “affiliated” with itself. Agro counters that the definition provided in

§ 1677(33) makes plain that affiliation requires a minimum of two entities, as each of the

scenarios listed in that section makes reference to two or more persons or

organizations.

Commerce’s reading of § 1677(33) -- and, by extension, § 1675(a)(4) -- fails to

convince us that the term “affiliated” is sufficiently ambiguous to permit us to proceed to

the second step of the Chevron analysis, particularly as we find that Agro’s less-tortured

interpretation comports with both the ordinary usage of the term “affiliated” and the use

of that term elsewhere in the antidumping statute. First, Agro’s view that “affiliation”

requires the presence of two or more entities is consistent with the ordinary usage of the

word as evidenced by standard dictionary definitions of “affiliate” (as a noun and verb)

and “affiliated.” “In order to ascertain the established meaning of a term . . . , it is

appropriate to consult dictionaries.” Pesquera Mares, 266 F.3d at 1382 (internal

quotation marks and citation omitted); see also MCI Telecomm., 512 U.S. at 225. Every

dictionary we have consulted defines these words such that the concept of a person or

organization affiliating with itself is excluded or, at the very least, highly implausible. For

example, the Oxford English Dictionary (2d ed. 1991), defines “affiliated” as “[a]dopted

as a child or fixed in paternity. Usually fig[urative]. United in a dependent relation, as

the branches of a society to the central organization.” Id. at 217. Echoing the definition

of “affiliated” given in § 1677(33), Black’s Law Dictionary (7th ed. 1999), defines the

2007-1011 11
noun “affiliate” as “[a] corporation that is related to another corporation by shareholdings

or other means of control; a subsidiary, parent, or sibling corporation.” Id. at 59

(emphasis added). See also Webster’s Third New International Dictionary 35 (1993)

(defining the verb “affiliate” primarily as “to attach as a member or branch”). Each of

these definitions, in turn, draws on the Latin antecedents of the term “affiliate” or

“affiliated,” namely, filius, meaning “son,” and affiliare, meaning “to adopt as a son.”

See, e.g., id.; see also Oxford Latin Dictionary 701 (1996); cf. MCI Telecomm., 512 U.S.

at 225 (examining the Latin root of the word “modify”). As these roots make clear, if we

use the word “affiliate” in its ordinary sense, an organization can no more affiliate with

itself than a man can adopt himself as his own son. In short, the ordinary definition of

“affiliated” cannot be stretched to accommodate Commerce’s interpretation of that term

as used in § 1675(a)(4), and “[w]e find nothing in the statute to suggest that Congress

intended to depart from the ordinary definition” of that term. Pesquera Mares, 266 F.3d

at 1383.

Second, as the Supreme Court has instructed, a “term should be construed, if

possible, to give it a consistent meaning throughout” a particular statute. Gustafson v.

Alloyd Co., 513 U.S. 561, 568 (1995). Commerce’s interpretation of “affiliation,”

however, is demonstrably at odds with the use of that term elsewhere in the

antidumping laws, including in a provision governing another aspect of the dispute

between Commerce and Agro. The parties have disputed whether the fact that Agro

was determined to have made “export price” (“EP”) sales rather than “constructed

export price” (“CEP”) sales within the meaning of 19 U.S.C. § 1677a during the POR

indicates an admission by Commerce that Agro did not makes sales through an

2007-1011 12
“affiliated” importer. It is not necessary for us to reach the question of whether a

determination that an entity made EP or CEP sales -- which is made while calculating

the antidumping duty, see id. § 1673 -- should govern whether an absorption inquiry can

be conducted under § 1675(a)(4). We nevertheless note that the phrase “affiliated” is

used in § 1677a(b) in such a way that, were Commerce’s proposed definition applied

consistently throughout the statute, subsections (a) and (b) of § 1677a would collapse

together. As discussed at greater length in our decision in AK Steel Corp. v. United

States, 226 F.3d 1361 (Fed. Cir. 2000), subsections (a) and (b) of § 1677a define EP

and CEP such that “while a sale made by a producer or exporter could be either EP or

CEP, one made by a U.S. affiliate can only be CEP.” Id. at 1371. 6 If a foreign exporter

or producer can be “affiliated” with itself, however, the statute’s distinction between the

two categories of sales would be eliminated. Following both the “normal rule of

statutory construction that identical words used in different parts of the same act are

intended to have the same meaning,” Gustafson, 513 U.S. at 570 (internal quotation

marks and citation omitted), and the “cardinal principle of statutory construction that a

statute ought . . . to be so construed that . . . no clause, sentence, or word shall be

superfluous,” TRW Inc. v. Andrews, 534 U.S. 19, 31 (2001) (internal quotation marks

6
Subject to certain adjustments under later subsections, 19 U.S.C.
§ 1677a(a) defines EP as “the price at which the subject merchandise is first sold (or
agreed to be sold) before the date of importation by the producer or exporter of the
subject merchandise outside of the United States to an unaffiliated purchaser in the
United States or to an unaffiliated purchaser for exportation to the United States.”
Section 1677a(b) defines CEP as “the price at which the subject merchandise is first
sold (or agreed to be sold) in the United States before or after the date of importation by
or for the account of the producer or exporter of such merchandise or by a seller
affiliated with the producer or exporter, to a purchaser not affiliated with the producer or
exporter.”

2007-1011 13
and citation omitted), Commerce’s interpretation of the word “affiliated” in § 1675(a)(4)

cannot be sanctioned here.

In sum, Agro’s interpretation of “affiliated” in § 1675(a)(4) is consistent with the

definition of “affiliated” given in § 1677(33), as well as with the use of that term in both

common parlance and elsewhere in the antidumping statute, whereas Commerce’s

proposed reading is in conflict with each of these guideposts to statutory interpretation.

In these circumstances, we must find that the term “affiliated” in § 1675(a)(4) “‘has a

plain and unambiguous meaning with regard to the particular dispute in [this] case,’” and

our inquiry is thus at an end. Crawfish Processors Alliance, 477 F.3d at 1379 (quoting

Robinson v. Shell Oil Co., 519 U.S. 337, 340 (1997)). We therefore hold that

Commerce was not empowered to conduct a duty absorption inquiry under § 1675(a)(4)

with respect to the sales made by Agro on which it acted as the importer of record,

because such sales were not made by Agro “through an importer who is affiliated with”

Agro.

In reaching this conclusion we recognize, as we did in FAG Italia, that “‘[a]n

affirmative finding of absorption in an [absorption inquiry under § 1675(a)(4)] is intended

to have a deterrent effect on continued absorption of duties by affiliated importers.’” 291

F.3d at 810 (quoting SAA at 885-86, reprinted in 1994 U.S.C.C.A.N. at 4120). As we

noted in that case, however, “[w]e cannot speculate that conducting two and four year

[absorption] reviews would serve Congress’s purpose when Congress did not authorize

such reviews” in this circumstance. Id. at 817. When Congress has spoken clearly,

through the use of “unambiguous words such as ‘affiliated,’” neither Commerce nor this

Court is “permitted to substitute [its] own definition for that of Congress, regardless of

2007-1011 14
how close the substitute definition may come to achieving the same result as the

statutory definition, or perhaps a result that is arguably better.” AK Steel Corp., 226

F.3d at 1371, 1372. Put differently, while Congress may not have affirmatively intended

to bar Commerce from conducting a duty absorption inquiry under the facts presented

here, Congress also did not authorize Commerce to do so, and under settled principles

of statutory construction, the effect is the same, as “an agency literally has no power to

act . . . unless and until Congress confers power upon it.” La. Pub. Serv. Comm’n v.

FCC, 476 U.S. 355, 374 (1986).

We also note that our holding that an absorption review is not authorized by

§ 1675(a)(4) at the second or fourth annual review where the foreign exporter or

producer acts as the importer of record is not tantamount to a finding that Commerce is

never permitted to consider whether such a foreign exporter or producer has absorbed

duties on those sales. While we have held that “the statutory provisions governing

annual reviews for Commerce do not confer general authority that might include the

power to consider duty absorption,” FAG Italia, 291 F.3d at 814, we reiterate that the

sunset review under § 1675(c)(1) requires Commerce to determine whether “revocation

of the . . . antidumping duty order . . . would be likely to lead to continuation or

recurrence of dumping,” and that this provision may well “authorize[] Commerce to

consider absorption [during the sunset review], even though section 1675(a)(4) deals

explicitly with that subject.” Id. at 819. Indeed, under § 1675a(c)(2), “[i]f good cause is

shown,” Commerce is authorized to “consider such other price, cost, market, or

economic factors as it deems relevant” during the sunset review.

2007-1011 15
 In sum, then, our holding today that Commerce was not authorized to conduct an

absorption inquiry as part of the fourth annual review of the Antidumping Order at issue

here cannot be read to permit Agro, or other foreign producers or exporters who act as

their own importers of record, to obtain an unjustified benefit or to undermine the

enforcement mechanisms of the antidumping laws. We therefore decline to depart from

the conclusion required by the plain meaning of the statute.

CONCLUSION

We reverse the judgment of the Court of International Trade holding that

Commerce possessed the authority under 19 U.S.C. § 1675(a)(4) to conduct a duty

absorption inquiry during the fourth annual review of the Antidumping Order as applied

to Agro, and remand for the entry of an order directing Commerce to annul all findings

and conclusions made pursuant to the duty absorption inquiry at issue here.

REVERSED and REMANDED.

COSTS

No costs.

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