United States Court of International Trade

Slip Op. 21-171

            Before the Court in Deacero S.A.P.I. de C.V., et. al., v. United States, et. al., Court No. 20-03924, Slip Op. 21-171 (December 22, 2021) was Deacero’s motion for judgment on the agency record pursuant to USCIT Rule 56.2, in an action challenging a final determination of Commerce. Id. at 1. “The final determination at issue resulted from Commerce’s findings during an administrative review of the antidumping (“AD”) order covering steel concrete reinforcing bar (“rebar”) products from Mexico.” Id. at 2. Deacero challenged the calculation. Id. Deacero argued that “the language of the presidential proclamations reveals that the purpose of the Section 232 duties as applied to Mexico was the same as antidumping duties, and thus, the duties were impermissibly double counted.” Id. at 8. “Commerce compared Section 232 duties to antidumping duties to conclude that there was no overlap.” Id. at 9. For the following reasons, the court sustained Commerce’s antidumping duty determination in review of order. Id. at 1.

The court sustains Commerce’s results of an administrative review of an AD duty order unless it is “unsupported by substantial evidence on the record, or otherwise not in accordance with law[.]” 19 U.S.C. § 1516a(b)(1)(B)(i). Id. at 5. Here, the court held that “Section 232 duties may be deducted from United States price.” Id. at 6. When Congress has directly spoken to the precise question at issue, it ends the matter— “the court, as well as the agency, must give effect to the unambiguously expressed intent of Congress.” Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984); Wheatland Tube Co. v. United States, 495 F.3d 1355, 1359 (Fed. Cir. 2007). Id. When the statute is silent or ambiguous with respect to the specific issue, then the court must evaluate whether Commerce’s interpretation “is based on a permissible construction of the statute.” Chevron, 467 U.S. at 843. Id. “Notice-and-comment procedures do not apply in antidumping administrative procedures because they are fact-based, investigative activities.” See Jiaxing Brother Fasterner Co., 916 F. Supp. 2d at 1331. Id. at 10. Here, the court found that “Deacero has not shown no reason to reject the court’s prior decision in Borusan.” Id. at 8. The court found that the presidential proclamations detailing Section 232’s applicability to Mexico do not undermine Borusan’s holding that Commerce can consider Section 232 duties “import duties.” Id. The court explained that “[t]here would only be impermissible double counting if there was clear statutory interplay between Section 232 duties and antidumping duties. See Borusan, 494 F. Supp. at 1375.” Id. While the President’s justifications for lifting the Section 232 duties on Mexico involved some discussion of ending the sale of steel sold at “dumped prices,” there remained no interplay with the Section 232 statute and antidumping duties. Id. at 9. Accordingly, the court sustained Commerce’s decision that the CEP and EP may be reduced by Section 232 duties paid. Id. at 10. “Here, Commerce was not required to engage in notice-and-comment rulemaking to deduct Section 232 duties from Deacero’s U.S. price.” Id. “The decision to deduct Section 232 duties as import duties is not a new policy because the antidumping statute requires Commerce to deduct import duties. See 19 U.S.C. § 1677a(c)(2)(A).” Id. “There was no agency statement or rule necessary to announce because Commerce was only complying with its statutory duty, the language of Proclamation 9705, and its interpretative rule that Section 232 duties were import duties. See 5 U.S.C. § 553.” Id. Accordingly, the court found that “Commerce did not fail to comply with the APA.” Id. As such, the court sustained Commerce’s determination regarding the AD order for rebar products from Mexico. Id.