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FAG ITALIA S.P.A v. U.S.raederdNormalGULC222002-05-24T15:34:00Z2002-05-29T12:24:00Z2002-05-29T12:24:00Z2860593453728769424139.38215 pt6.8 pt22United StatesCourt of Appeals for the Federal Circuit 01-1212, -1213,-1214, -1215 FAG ITALIA S.P.A. andFAG BEARINGS CORPORATION, Plaintiffs-Appellants,and SKF USA INC. and SKFINDUSTRIE S.P.A., Plaintiffs-Appellants,v. UNITED STATES, Defendant-Cross Appellant,and THE TORRINGTONCOMPANY, Defendant-CrossAppellant. Max F.Schutzman, Grunfeld, Desiderio, Lebowitz, Silverman & KlestadtLLP, of New York, New York, argued forplaintiff-appellant FAG Bearings Corporation and FAG Italia S.p.A. With him on the brief were Andrew B.Schroth, Mark E. Pardo, and Adam M. Dambrov. Of counsel was Jeffrey S. Grimson. HerbertC. Shelley, Steptoe & Johnson LLP, of Washington, DC, argued forplaintiff-appellant SKF USA Inc. and SKF Industrie S.p.A. With him on the brief was Alice A. Kipel. ReginaldT. Blades, Jr., Attorney, Commercial Litigation Branch, Civil Division,Department of Justice, of Washington, DC, argued for defendant-cross appellantUnited States. On the brief were StuartE. Schiffer, Acting Assistant Attorney General; David M. Cohen,Director; Velta A. Melnbrencis, Assistant Director. Of counsel on the brief were David R.Mason and John F. Koeppen, Attorneys, Office of the Chief Counselfor Import Administration, U.S. Department of Commerce, of Washington, DC. Geert DePrest, Stewart and Stewart, of Washington, DC, argued for defendant-crossappellant The Torrington Company. Withhim on the brief were Terence P. Stewart and Lane S. Hurewitz. Appealed from: United States Court of International Trade Senior Judge Nicholas TsoucalasUnited StatesCourt of Appeals for the Federal Circuit 01-1212,-1213, -1214, -1215 FAG ITALIA S.p.A. andFAG BEARINGS CORPORATION, Plaintiffs-Appellants, and SKF USA INC. and SKFINDUSTRIES S.p.A., Plaintiffs-Appellants, v. UNITED STATES, Defendant-CrossAppellant, and THE TORRINGTONCOMPANY, Defendant-CrossAppellant. ___________________________ DECIDED: May 24, 2002 ___________________________ Before MICHEL, DYK, and PROST, Circuit Judges. Opinion for the court filed by Circuit Judge DYK, inwhich Circuit Judge PROST joins. Circuit Judge MICHEL concurs-in-part and dissents-in-part. DYK, Circuit Judge. This case presentstwo issues. First, it involves thequestion whether the Department of Commerce (“Commerce”) properly defined“foreign like product” for purposes of 19 U.S.C. §§ 1677b(a)(1) and1677b(e). In SKF USA Inc. v. UnitedStates, 263 F.3d 1369 (Fed Cir. 2001), we vacated the Court ofInternational Trade’s decision on that identical issue and remanded forCommerce to explain why it uses a different definition of “foreign likeproduct” for price-based calculations for normal value than it does forcalculations of constructed value. Theparties agree that SKF USA governs here, and that we should likewiseremand this case to Commerce for further consideration of that issue. Accordingly, we will not discuss the“foreign like product” issue further in this opinion. We vacate the decision of the Court of International Trade onthis issue and remand for further proceedings consistent with our opinion in SKFUSA.Second, this caseinvolves the question whether Commerce can properly conduct a duty absorptioninquiry pursuant to 19 U.S.C. § 1675(a)(4) for “transition orders”[1]in 1996 and 1998, the second and fourth years after the deemed issuance date oftransition orders under section 1675(c)(6)(D). We hold that Commerce’s action in conducting such inquiries is notauthorized by the statute and affirm the judgment of the Court of InternationalTrade in this respect. The opinion thatfollows addresses that issue.[2]StatutoryBackgroundThe antidumpingstatute is designed to prevent foreign goods from being sold at unfairly lowprices in the United States to the injury of United States producers. Antidumping orders are issued as a result ofa process that involves both Commerce and the ITC. Commerce decideswhether dumping exists by determining whether foreign merchandise has been soldor is likely to be sold in the United States at “less than its fairvalue.” 19 U.S.C. § 1673(1)(2000). Commerce first makes apreliminary determination whether there is a reasonable indication that foreignmerchandise is being sold at less than fair value, 19 U.S.C. § 1673b(b)(1)(A)(2000), then establishes dumping margin[3]rates reflecting that amount. 19 U.S.C.§§ 1673d(a)(1), 1673d(c)(1)(B) (2000). The ITC determines whether a domestic industry is “materially injured”or is “threatened with material injury,” or whether “the establishment of anindustry in the United States is materially retarded” by dumping. 19 U.S.C. § 1673d(b)(1) (2000). If the determinations of Commerce and ITCare both affirmative, Commerce issues an antidumping order assessing duties onthe foreign exporter. 19 U.S.C.§ 1673d(c)(2) (2000).Before the amendments to the antidumping statute underthe Uruguay Round Agreements Act (“URAA”), Pub. L. No. 103-465, 108 Stat. 4809(1994), the only statutorily authorized review of antidumping orders after theywere issued was Commerce’s annual administrative review, in which Commercereviewed the amount of antidumping duty, and recalculated the dumping margin asnecessary to reflect actual competitive conditions. 19 U.S.C. § 1675(a)(1) (1988). These annual reviews werecontinued in the URAA amendments. See19 U.S.C. § 1675(a)(1) (2000). Under the URAA amendments, Congressadditionally: (1) authorized Commerceto conduct so-called duty absorption inquiries in conjunction with its secondand fourth annual administrative reviews of antidumping orders, upon request byan interested domestic party; and (2) provided for a completely new kind ofreview of antidumping duty orders: sunset reviews, to be jointly conducted by ITC and Commerce five yearsafter the issuance of an order. Sunsetreviews eliminate needless antidumping orders by terminating orders after fiveyears, unless ITC and Commerce both determine that revocation of the orderswould lead to recurrence of dumping and material injury. Subsection (a) of section 1675 governs dutyabsorption inquiries. Subsection (c)governs sunset reviews.DutyAbsorptionThe purpose of aduty absorption inquiry is to ensure that foreign exporters identified byCommerce as dumping goods in the United States do not undermine the purpose ofthe antidumping laws by “absorbing” the duty rather than passing the duty on toUnited States purchasers in the form of higher prices. In such circumstances, dumping continues despitethe assessment of the duty, and, as a result, “the remedial effect of anantidumping order may be undermined . . . .” Joint Report of the Committee on Finance, Committee on Agriculture,Nutrition, and Forestry, Committee on Governmental Affairs of the United StatesSenate to accompany S. 2467, S. Rep. No. 103-412, at 44 (1994).Congress providedthat:During any [annual]review . . . initiated 2 years or 4 years after the publication of anantidumping duty order, [Commerce], if requested, shall determine whetherantidumping duties have been absorbed by a foreign producer or exporter subjectto the order if the subject merchandise is sold in the United States through animporter who is affiliated with such foreign producer or exporter. 19 U.S.C. § 1675(a)(4) (2000).[4] Section 1675(a)(4) further provides thatCommerce “shall notify the [ITC] of its findings regarding such duty absorptionfor the [ITC] to consider in conducting a [sunset review].” Theconsequence of a finding of duty absorption by Commerce is that theanti-dumping order is less likely to be revoked as a result of a sunsetreview. The Statement of AdministrativeAction recognized that “[d]uty absorption may indicate that the [foreign]producer or exporter would be able to market more aggressively should the orderbe revoked as a result of a sunset review.” Uruguay Round Agreements Act: Statement of Administrative Action (“SAA”), H.R. Doc. No.103-316, at 886 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4211. It was further understood:Duty absorption is a strongindicator that the current dumping margins calculated by Commerce in reviewsmay not be indicative of the margins that would exist in the absence of anorder. Once an order is revoked, theimporter could achieve the same pre-revocation return on its sales by loweringits prices in the U.S. in the amount of the duty that previously was beingabsorbed. . . . An affirmative finding of absorptionin an administrative review initiated two years after the issuance of anorder is intended to have a deterrent effect on continued absorption ofduties by affiliated importers; if they engage in duty absorption, they willknow that they will face an additional hurdle that will make it more difficultto obtain revocation or termination. If, in the four-year review, Commerce finds that absorption has takenplace, it will take that into account in its determination regarding thedumping margins likely to prevail if an order were revoked. Id. at 885-86, reprintedin 1994 U.S.C.C.A.N. at 4210 (emphases added). SunsetReviewsThe purpose of thesunset review is to eliminate needless orders by terminating antidumping ordersafter five years unless Commerce determines that revocation of the duty “wouldbe likely to lead to continuation or recurrence of dumping,” and ITC determinesthat revocation of the duty “would be likely to lead to . . . materialinjury.” 19 U.S.C. § 1675(c)(1)(2000). Unless both agencies makeaffirmative determinations, the order must be revoked. The sunset review is held “5 years after thedate of publication of . . . an antidumping duty order,” and every five yearsthereafter. 19 U.S.C.§ 1675(c)(1)(A) (2000); S. Rep. No. 103-412, at 45. ITCconsiders several factors in deciding whether revocation would likely lead tomaterial injury. 19 U.S.C. §1675a(a)(1) (2000).[5] Among other things, the statute providesthat in sunset reviews ITC “shall” consider Commerce’s two and four-year dutyabsorption determinations. 19 U.S.C.§ 1675a(a)(1)(D) (2000).Transition OrdersThere is no issue in this case asto the operation of these duty absorption inquiry or sunset review provisionswith respect to antidumping orders issued after January 1, 1995, the date theURAA amendments came into effect in the United States. The controversy concerns orders issuedbefore that date—so called “transition orders.” A “transition order” is defined in the statute as “an antidumpingduty order . . . which is in effect on the date the WTO Agreement enters intoforce with respect to the United States,” that is, January 1, 1995. 19 U.S.C. § 1675(c)(6)(C) (2000). Congress was well aware that “there likelywill be more than 400 of these transition orders” issued before January 1,1995, and Congress also recognized that “special rules are necessary to enablethe agencies to conduct five-year reviews within a reasonable period and in amanner consistent with the [URAA] Agreements.” SAA at 882, reprinted in 1994 U.S.C.C.A.N. at 4208. Congress accordingly explicitly provided forsunset review of transition orders: “[f]or purposes of this subsection [(c)], a transition order shall betreated as issued on the date the WTO Agreement enters into force with respectto the United States.” 19 U.S.C.§ 1675(c)(6)(D) (2000). Thus,transition orders were deemed issued on January 1, 1995, and subject to asunset review five years after that date.In the URAAamendments, Congress did not provide for duty absorption inquiries oftransition orders in the second or fourth years after the deemed issuancedate. Nonetheless, Commerce has claimedthe authority to undertake such duty absorption inquiries for transition ordersin the second and fourth years after the deemed issuance date, thus leading tothe present proceeding.ProceedingsBelowIn 1997, Commercepromulgated a regulation interpreting the statutory scheme as permitting it toconduct duty absorption inquiries of transition orders, if requested, in anyannual review initiated in 1996 or 1998. 19 C.F.R. § 351.213(j) (1998).[6] However, this regulation is not bindinghere, because the review at issue was initiated in 1996, and the regulationapplies only to “administrative reviews initiated on the basis of requests madeon or after the first day of July, 1997. . . .” Antidumping Duties; Countervailing Duties, 62 Fed. Reg.27,296, 27,416-17 (May 19, 1997). ThusCommerce contradicts itself—on the one hand promulgating a regulationpurporting to authorize reviews in 1996, and at the same time stating that thatregulation is inapplicable to pre-July 1, 1997, reviews. The regulation nonetheless states Commerce’sviews that second and fourth year reviews of transition orders areauthorized by the statute.This case predatesthe issuance of that regulation. Atissue in this case is the seventh annual administrative review of anantidumping order on antifriction bearings (“AFBs”) imported to the UnitedStates during the period of May 1, 1995, through April 30, 1996. Plaintiff-appellant FAG-Italia S.p.A. is amanufacturer of AFBs from Italy that are subject to the antidumping order, andplaintiff-appellant FAG Bearings Corporation imports those AFBs (collectively,“FAG”). Plaintiff-appellant SKF USA and plaintiff-appellant SKF IndustrieS.p.A. (collectively, “SKF”) also manufacture and import Italian AFBs that aresubject to the antidumping order. On May 15, 1989,Commerce issued the antidumping order.[7] On June 20, 1996, Commerce initiated theseventh annual administrative review of this order for the period of May 1,1995, to April 30, 1996.[8] On June 10, 1997, Commerce published PreliminaryResults of its review.[9] On October 17, 1997, Commerce published its FinalResults.[10] In its Final Results, Commerce foundthat FAG and SKF engaged in duty absorption with respect to Italian AFBs. 62 Fed. Reg. at 54,044.It is undisputedthat the underlying order, originally issued May 15, 1989, is a “transitionorder” with a deemed issuance date of January 1, 1995, for sunset reviewpurposes. 19 U.S.C.§ 1675(c)(6)(D) (2000). From the outsetof its investigation, Commerce regarded this seventh annual administrative reviewas the “second year” review for purposes of its duty absorption inquiry, i.e.,as a review taking place during the second year after the January 1, 1995,deemed issue date. On May 31, 1996, andJuly 9, 1996, the Torrington Co. (“Torrington”) requested Commerce todetermine, with respect to various respondents, whether antidumping duties hadbeen absorbed during the period of review. Final Results, 62 Fed. Reg. at 54,075. Commerce proceeded to conduct the duty absorption inquiry,explaining the basis for the inquiry in its Preliminary Results:The preamble to [Commerce’s] proposedantidumping regulations explains that reviews initiated in 1996 will beconsidered initiated in the second year and reviews initiated in 1998 will beconsidered initiated in the fourth year. Although these proposed antidumping regulations are not yet binding upon[Commerce], they do constitute a public statement of how [Commerce] expects toproceed in construing [19 U.S.C. § 1675(a)(4)]. This approach ensures that interested parties will have theopportunity to request a duty-absorption determination prior to the time forsunset review of the order under [19 U.S.C. § 1675(c)] on entries for which thesecond and fourth years following an order have already passed. Preliminary Results, 62 Fed.Reg. at 31,568 (citation omitted). Commerce concluded:Because these orders on AFBshave been in effect since 1989, these are transition orders in accordance with[19 U.S.C. § 1675(c)(6)(C)]; therefore, based on the policy stated above, [Commerce]will consider a request for an absorption determination during a reviewinitiated in 1996. This being a reviewinitiated in 1996 and a request having been made, we are making aduty-absorption determination as part of these administrative reviews.Id. Inits Final Results, Commerce repeated its rationale for conducting theduty absorption inquiry. 62 Fed. Reg.at 54,074-75. It also found that SKFand FAG failed to put evidence into the record to support their position thatthey and their affiliated importers were not absorbing the duties, andconcluded that duty absorption had occurred. 62 Fed. Reg. at 54,076. SKF andFAG challenged the Final Results as they pertain to AFBs from Italy inthe United States Court of International Trade.In FAG ItaliaS.p.A. v. United States, No. 97-11-01984, 2000 WL 978462 (Ct. Int’l TradeJuly 13, 2000), the Court of International Trade concluded that Commerce lackedstatutory authority to conduct a duty absorption inquiry for the transitionorder in dispute. The court relied onits reasoning in SKF USA Inc. v. United States, 94 F. Supp. 2d 1351 (Ct.Int’l Trade 2000), after determining that the duty absorption inquiry and theparties’ arguments in this case were “practically identical” to those in SKFUSA. FAG Italia at *5. In the earlier case, the court determinedthat Commerce lacked authority to conduct a duty absorption inquiry in theninth administrative review of a transition order, finding that “the deemedJanuary 1, 1995 issuance date of § 1675(c)(6)(D) is inapplicable to theorder.” SKF USA, 94 F. Supp. 2dat 1357. The court found that section291 of the URAA provided an “‘unambiguous directive’ from Congress” that thesection providing for duty absorption inquiries “must be applied prospectivelyon or after January 1, 1995 for 19 U.S.C. § 1675 reviews,” and accordinglyconcluded that Commerce lacked authority to conduct the duty absorption inquiryof the transition order at issue. Id.at 1358-59 (internal citations omitted). Relying on SKF USA, the court in FAG Italia remanded toCommerce with instructions to “annul all findings and conclusions made pursuantto the duty absorption inquiry conducted for this review.” FAG Italia at *8. Upon finding that Commercecomplied with the terms of the remand, the court issued its final judgment in FAGItalia S.p.A. v. United States, No. 97-11-01984, 2000 WL 1846112 (Ct. Int’lTrade Dec. 15, 2000), dismissing the case.Commerce andTorrington appealed the Court of International Trade’s determination that Commercelacked statutory authority to conduct the duty absorption inquiry. We have jurisdiction pursuant to 28 U.S.C. §1295(a)(5).STANDARDOF REVIEW “‘Whenreviewing anti-dumping determinations made by Commerce, this court applies anewthe standard of review applied by the Court of International Trade in itsreview of the administrative record.’” SKFUSA Inc. v. United States, 263 F.3d 1369, 1378 (Fed. Cir. 2001) (quoting F.LLIDe Cecco Di Filippo Fara S. Martino S.p.A. v. United States, 216 F.3d 1027,1031 (Fed. Cir. 2000)). Wereview questions of statutory interpretation without deference, U.S. SteelGroup v. United States, 225 F.3d 1284, 1286 (Fed. Cir. 2000), except to theextent that deference to Commerce’s interpretation may be required by ChevronU.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837,842-44 (1984).DISCUSSIONCommerce does notclaim that any provision of the statute explicitly authorizes it to conductduty absorption inquiries as part of its annual review of transition orders inthe second and fourth years after January 1, 1995. Nor does Commerce claim that there is any ambiguous language ofthe statute that might be interpreted to convey such authority.[11] Commerce’s concession is well taken. The statute only provides for dutyabsorption inquiries “[d]uring any review under this subsection [subsection(a), governing annual administrative reviews] initiated 2 years or 4 yearsafter the publication of an antidumping duty order . . . .” 19 U.S.C. § 1675(a)(4) (2000). The order in question was published in 1989;the two and four year annual reviews occurred in 1991 and 1993, well before theabsorption provision of the URAA was even enacted. The deemed issuance date for transition orders does not changethis result. In providing for a deemedissuance date for transition orders, the statute provides that “[f]or purposesof this subsection [subsection (c), governing sunset reviews], a transitionorder shall be treated as issued” on January 1, 1995. 19 U.S.C. § 1675(c)(6)(D) (2000). There is no provision creating a “treated as” date for transitionorders for purposes of subsection (a), the subsection governing duty absorptioninquiries. Finally, the statutoryprovisions governing annual reviews for Commerce do not confer generalauthority that might include the power to consider duty absorption. 19 U.S.C. §§ 1675(a)(1)(B), 1675(b)(2)(2000).[12]Commercenonetheless urges that it has authority to conduct two and four year reviews oftransition orders because both the statute and its legislative history aresilent as to whether Commerce can conduct duty absorption inquiries in yearsother than years 2 and 4, and the statute does not explicitly prohibit or denyit such authority.[13]Commerce seriouslymisunderstands its role under Chevron.[14] The first question we ask under Chevronis whether Congress has spoken to the precise question at issue. Chevron, 467 U.S. at 842. In the absence of clear direction from thestatute, we then ask whether there is ambiguous statutory language that mightauthorize the agency to fill a statutory gap: “’The power of an administrative agency to administer a congressionallycreated . . . program necessarily requires the formulation of policy and themaking of rules to fill any gap left, implicitly or explicitly, byCongress.’” Id. at 843 (quoting Mortonv. Ruiz, 415 U.S. 199, 231 (1974)). Then we ask whether Commerce’s interpretation of ambiguous statutorylanguage is based on a permissible interpretation of the statute. Id. at 843 & n.11. But here, Commerce can identify noambiguities in the statute, nor any statutory “gaps” that Commerce is entitledto fill. Rather, Commerce argues:Section 1675(a)(4) . . . only addressesthe question of when Commerce must conduct a duty absorption inquiry, i.e.,under certain enumerated conditions. Thus, left unanswered by section 1675(a)(4) is the proper issue that thecase presented — whether the statutory scheme as a whole precludesCommerce from conducting a duty absorption inquiry for a transition order. The answer to this question must be in thenegative because Congress has stated neither in 19 U.S.C. § 1675(a)(4) nor inany other statutory provision that Commerce is precluded from conductingsuch an inquiry. Commerce Br. at 46. Given the statutory scheme as a whole andCongress’s recognition that Commerce’s duty absorption information is useful inITC’s sunset reviews, Commerce argues, Commerce’s exercise of its discretion toconduct such reviews serves the purpose of the statute.Thus, Commerce claimsthat it enjoys plenary power to engage in any activity related to its field ofauthority not specifically prohibited by Congress, so long as theadministrative action will serve a congressional purpose. But no case of which we are aware holds thatan administrative agency has authority to fill gaps in a statute that existbecause of the absence of statutory authority. To the contrary, the Supreme Court has noted that “an agency literallyhas 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), and has cautioned that“‘[t]o supply omissions [within a statute] transcends the judicialfunction.’” W. Va. Univ. Hosps.,Inc. v. Casey, 499 U.S. 83, 101 (1991) (quoting Iselin v. United States,270 U.S. 245, 250-51 (1926)). It is indeed wellestablished that the absence of a statutory prohibition cannot be the source ofagency authority. In SouthernCalifornia Edison Co. v. Federal Energy Regulatory Commission, 195 F.3d 17(D.C. Cir. 1999), the District of Columbia Circuit reiterated that the absenceof an express statutory provision cannot be interpreted as giving an agencyauthority:[T]he court has repeatedly rejected thenotion that the absence of an express proscription allows an agency to ignore aproscription implied by the limiting language of a statute, reasoning that suchan approach requires “tortured statutory interpretation” and is based on theunlikely circumstance as to congressional intent giving agencies “virtually limitlesshegemony, a result plainly out of keeping with Chevron.” Id. at 24 (citations omitted). At issue in Southern California Edisonwere provisions of the Public Utilities Regulatory Policies Act of 1978, 16U.S.C. §§ 796(17)-(18), 824a-3, 824i, 824k (1994), governing statutoryentitlements benefiting certain energy producers. The statute expressly defined a “small power production facility”as one that “produces electric energy solely by the use, as a primary energysource, of biomass, waste, renewable resources, geothermal resources, or anycombination thereof.” 16 U.S.C.§ 796(17)(A)(i) (1994). TheFederal Energy Regulatory Commission (“FERC”) allowed a producer that burned asubstantial amount of natural gas to retain its status as a “small power productionfacility.” FERC argued that theprovision defining “primary energy source” refers “only to those uses that FERCmay not consider in determining a facility’s primary energy source, buthas no bearing upon permissible uses of secondary energy sources.” Id. at 23 (second and third emphasesomitted). The court noted that to adoptFERC’s rationale “is to assume a new category of nonconforming uses fueled bysuch a source that is nowhere mentioned in [the Act] or FERC’s regulations andis unnecessary to give meaning to the provisions Congress enacted.” Id. at 24. The court rejected FERC’s interpretation because it “would havethe effect of requiring Congress to state expressly” any denial of authority tothe agency. Id.Similarly, in Universityof the District of Columbia Faculty Ass’n v. District of Columbia FinancialResponsibility & Management Assistance Authority, 163 F.3d 616, 621(D.C. Cir. 1998), the District of Columbia Circuit noted that “[a]ppellants’premise – that the [agency] has the authority to do anything that is notexpressly prohibited by [the governing statute] – is quite extraordinary and wereject it.” At issue in that case wasthe District of Columbia Financial Responsibility and Management Assistance Actof 1995, which expressly gave the agency authority to review and approve newcollective bargaining agreements (“CBAs”), but was silent as to whether theagency had authority to modify existing CBAs. Id. The agency arguedthat it was an “enormous stretch” to infer that, when Congress gave the agencyauthority to review and approve new CBAs, it simultaneously meant to prohibitthe agency from modifying existing CBAs, and that it was improper for thedistrict court to assume that, because Congress was silent as to existing CBAs,it meant to exclude such agreements from the agency’s authority. Id. The court rejected this argument, relying on the “fundamental principleof statutory interpretation” articulated in Railway Labor Executives’ Ass’nv. National Mediation Board, 29 F.3d 655 (D.C. Cir. 1994) (en banc), amendedby, 38 F.3d 1224 (D.C. Cir. 1994), cert. denied, 514 U.S. 1032(1995):The [National Mediation Board] does noteven claim that the terms of [the Act] support the authority it asserts. . .. Instead, the Board would have us presumea delegation of power from Congress absent an express withholding ofsuch power. This comes close to sayingthat the [National Mediation Board] has the power to do whatever it pleasesmerely by virtue of its existence, a suggestion that we view to be incredible. Univ. of Dist. of ColumbiaFaculty Ass’n, 163 F.3d at 621 (quoting Railway Labor, 29 F.3d at659).In this case, thestatutory silence as to Commerce’s power to initiate duty absorption inquiriesfor transition orders does not give Commerce authority to conduct suchinquiries. The fact that Commerce isempowered to take action in certain limited situations does not mean thatCommerce enjoys such power in other instances. We cannot speculate that conducting two and four year reviews wouldserve Congress’s purpose where Congress did not authorize such reviews fortransition orders.[15] Nor is there any legislative historysuggesting that Congress contemplated such two or four year reviews fortransition orders.[16]To be sure, ifprovisions of the statute were rendered meaningless if the authority Commerceseeks were denied to it, we would have a very different case. In SKF USA Inc. v. United States, 263F.3d 1369, 1379-80 (Fed. Cir. 2001), we resolved an apparent anomaly in theantidumping statute where the definition of a key statutory term appeared toapply solely to one part of the statute, in which the term did not evenappear. Absent our interpretationapplying that definition to the part of the statute in which the term actuallyappeared, the definition was meaningless. But that is notthe situation here. Our interpretationdoes not render any portion of the statute superfluous. Section 1675(c)(6)(D) fixes the issuancedate for transition orders at January 1, 1995. Sections 1675(c)(6)(A)(i) and 1675(c)(6)(A)(ii) provide a schedule underwhich sunset reviews of transition orders are to be initiated andconcluded: “[Commerce] shall begin its[sunset] review of transition orders in the 42d calendar month after the datesuch orders are issued,” that is, January 1, 1995, and “reviews of alltransition orders shall be completed not later than 18 months after the 5thanniversary of the date such orders are issued.” The “date such orders are issued” refers to the date fixed insection 1675(c)(6)(D), i.e., “the date the WTO Agreement enters intoforce with respect to the United States.” Thus, the purpose of section 1675(c)(6)(D) is to subject transitionorders to sunset reviews, by setting the date referred to in section1675(c)(6)(A)(i).[17] Our interpretation gives meaning to allsections of the statute, including subsection (D). Whilethe sunset review provision states that the ITC “shall take into account,”among other things, “the findings of [Commerce] regarding duty absorption undersection 1675(a)(4),” 19 U.S.C. § 1675(a)(1) (2000), and such considerationscannot occur when no findings have been made by Commerce as to transitionorders, we think that this minor anomaly is insufficient to confer authority onCommerce to conduct such reviews. Section 1675a(a)(1) must refer only to the situation in which dutyabsorption inquiries in fact exist. Even under Commerce’s interpretation of the statute, duty absorptiondeterminations may or may not exist for a particular sunset review (since suchdeterminations, even under Commerce’s view, are made only upon request). Commerce itself provides a rationale as towhy Congress might have failed to provide authority for duty absorptioninquiries as to transition orders: “Given this large number of transition orders that were subject tofive-year reviews, it may well be that Congress simply did not wish tooverburden Commerce by requiring it to conduct duty absorption inquiriesfor the transition orders.” CommerceBr. at 52-53.In effect, Commerce’sinterpretation requires the addition of statutory language that Congress didnot include. Commerce would have usrewrite section 1675(c)(6)(D) to read “[f]or purposes of this subsection, andsubsection (a), a transition order shall be treated as issued on” January1, 1995. This we cannot do.[18]In holding thatCommerce lacks authority to conduct two and four-year duty absorption inquiriesfor transition orders, we do not reach the question whether Commerce might havebeen authorized to conduct duty absorption inquiries as part of the sunsetreview itself under Commerce’s general mandate to “conduct a review todetermine . . . whether revocation of the . . . antidumping duty order . . .would be likely to lead to continuation or recurrence of dumping.” 19 U.S.C. § 1675(c)(1) (2000); see also19 U.S.C. §§ 1675(d)(2), 1675a(c)(1) (2000). It might be argued that the general authority to conduct a sunsetinquiry into the likelihood of continuation or recurrence of dumping (includingwith respect to transition orders) authorizes Commerce to consider absorption,even though section 1675(a)(4) deals explicitly with that subject. Recently in National Cable &Telecommunications Ass’n, Inc. v. Gulf Power Co., 122 S. Ct. 782, 789-90(2002), the Supreme Court considered the FCC’s authority to regulate poleattachment rates for wireless carriers. Sections 224(a)(1) and 224(d)(2) of the Pole Attachments Actspecifically authorized the regulation of pole attachment rates but did notcover wireless carriers. The Courtnonetheless interpreted sections 224(b) and 224(a)(4) of the Act, generallygranting the FCC authority to “regulate the rates, terms, and conditions forpole attachments,” id. at 789, as authorizing the FCC to regulate ratesfor “pole attachments” of wireless carriers, noting that “nothing in§ 224(a)(1) or § 224(d)(2) limits § 224(a)(4) or § 224(b).” Id. at 790. Thus, despite the fact that the FCC lacked authority to regulatesuch carriers under certain specific sections of the statute, the Supreme Courtfound authority in more general provisions of the statute. But Commerce does not here argue thatsection 1675(c)(1) is a source of authority to conduct duty absorptioninquiries for transition orders, and did not purport to exercise any suchauthority here. We decline to determineif such authority existed. Weaffirm the Court of International Trade’s determination that Commerce lackedauthority to conduct a duty absorption inquiry with respect to this transitionorder, and we vacate and remand to the Court of International Trade for adetermination of the “foreign like product” issue, consistent with our opinionin SKF USA. AFFIRMED-IN-PART, VACATED-IN-PART, AND REMANDEDCOSTSNo costs.United States Court of Appeals for the Federal Circuit 01-1212,-1213, -1214, -1215FAG ITALIA S.p.A. andFAG BEARINGS CORPORATION, Plaintiffs-Appellants,andSKF USA INC. and SKF INDUSTRIE S.p.A., Plaintiffs-Appellants, v.UNITED STATES, Defendant-CrossAppellant, and THE TORRINGTON COMPANY, Defendant-CrossAppellant. MICHEL, Circuit Judge, concurring-in-part anddissenting-in-part. I believe thecorrect construction of the antidumping laws, reading as a whole the UruguayRound Agreements Act (“URAA”) amendments, is one in which duty absorptioninquiries performed under § 1675(a)(4) apply to the five-year sunsetreviews of transition orders. Because Icannot agree that logic permits an opposite conclusion, I respectfully dissentfrom that portion of the majority opinion that holds Commerce lacked the powerto conduct the duty absorption inquiries as requested in this case.According to § 291of the URAA, the amendments made to the antidumping law “shall take effect on[January 1, 1995] and apply with respect to — . . . (2) reviews initiatedunder [§ 1675] (A) by the administering authority or the Commission on theirown initiative after such date, or (B) pursuant to a request filed aftersuch date.” See 19 U.S.C. §1671 note (quoting URAA § 291(emphasis added)).[19] The five-year sunset review at issuein this case was initiated after January 1, 1995, so the amendments to theantidumping law apply in this case, even though the order was publishedpre-URAA. The purpose of five-yearsunset reviews is to determine whether revocation of the particular antidumpingduty order at issue “would be likely to lead to continuation or recurrence” ofmaterial injury to domestic firms. 19U.S.C. § 1675(c). Section 1675a(a),governing the procedure to be followed for making such a determination, stateson its face that “[t]he Commission shall take into account . . . (D) inan antidumping proceeding under section 1675(c) of this title, the findings ofthe administering authority regarding duty absorption under section1675(a)(4) of this title.” 19 U.S.C. §1675a(a)(1) (emphasis added). Indisputably, transition orders are antidumping proceedings under §1675(c). See 19 U.S.C. §1675(c)(6). Wheninterpreting statutes, our task is to construe what Congress has enactedbeginning with the language of the statute itself, giving effect -- if at allpossible -- to every clause and word of the statute. Duncan v. Walker, 533 U.S. 167, 172, 174 (2001). We read statutes not in isolation but as awhole, United States v. Morton, 467 U.S. 822, 828 (1984), settling on aconstruction that reduces terms to surplusage only where we can find noother reasonable reading of the statute. See Chickasaw Nation v. United States, 534 U.S. 84, __,122 S. Ct. 528, 532 (2001). Furthermore, where our construction involves multiple statutory sectionsthat were enacted simultaneously as part of the same Act, “the duty toharmonize them is particularly acute.” U.S.West Communications, Inc. v. Hamilton, 224 F.3d 1049, 1053 (9th Cir. 2000)(citing Erlenbaugh v. United States, 409 U.S. 239, 244 (1972)); accordAmbassador Div. of Florsheim Shoe v. United States, 748 F.2d 1560, 1565(Fed. Cir. 1984) (explaining that when different statutory sections are enactedin pari materia, “a legislativeintent to have them work harmoniously together, and for neither to frustratethe other, or partially repeal it, is very much to be inferred”). With fidelity to these maxims, the majorityconcedes “we would have a very different case” if its interpretation of thestatute rendered any relevant provision meaningless. I believe that this is indeed that very different case.As part of theamendments under the URAA, Congress provided that Commerce “if requested, shalldetermine” whether duty absorption has occurred. 19 U.S.C. § 1675(a)(4). The purpose of Commerce’s inquiry was manifest: an affirmativefinding of duty absorption in years two or four places importers on noticethat, should the practice continue, they would face increased difficulty inobtaining a revocation or termination of existing orders at their five-yearsunset review. See Uruguay RoundAgreements Act Statement of Administrative Action at 885-88, reprinted in1994 U.S.C.C.A.N. 4040, 4210-11. Tothat end, the amendments affirmatively require Commerce to report those findingsto the Commission: “The administering authority [Commerce] shall notify theCommission of its findings regarding such duty absorption for the Commission toconsider in conducting a review under subsection (c) of this section.” 19 U.S.C. § 1675(a)(4) (emphasisadded). Again, that transition ordersare subject to five-year sunset reviews under subsection (c) is not disputed,either by the parties or the majority.Nevertheless, themajority opines that it “cannot speculate” how such reviews “would serveCongress’s purpose where Congress did not authorize such reviews [i.e.,duty absorption inquiries] for transition orders.” This begs the question -- whether Congress authorized dutyabsorption inquiries for transition orders -- and at the same time pays onlylip-service to our maxims of statutory construction. We are duty-bound to construe sections 1675(a)(4), 1675(c), and1675a(a)(1) harmoniously, if at all possible. These sections are easily reconciliable once one recognizes that eachsunset review of a duty order must consider duty absorption inquiries if suchinquiries have been performed, that transition orders are subject to sunsetreviews, and therefore, sunset reviews of transition orders necessarily mustconsider duty absorption inquiries provided that such inquiries have beenperformed. One need not look beyond theface of the statute to reach this conclusion, a necessary consequence of whichis that, regardless of whether in a specific case an inquiry was actuallyperformed, the possibility for the Commission to review such an inquirymust always exist. However, no suchpossibility exists under the court’s reasoning.The majority,deeming itself duty-bound not to “rewrite” the statute to include language thatis already reasonably inferable from reading the statute as a whole, insteadopts to read out (or, at a minimum, render meaningless) language expresslycontained in the statute: the express, affirmative command to the Commissionunder § 1675a(a)(1) that it consider, during sunset reviews of transitionorders, any findings that have been made under § 1675(a)(4). Recognizing this “minor anomaly,” themajority attempts to justify it by speculating that § 1675a(a)(1) “mustrefer only to the situation in which duty absorption inquiries in factexist.” Such conjecture buckles underits own weight, however, as today’s holding precludes the very existence ofsuch a situation.[20] Because dutyabsorption inquiries form a part of the core analysis in determining whetherrevocation of the antidumping duty order would be likely to lead tocontinuation or recurrence of material injury to domestics, the antidumpingstatute provides that they shall be considered by the Commission during sunsetreviews of antidumping proceedings under § 1675(c). Transition orders are antidumping proceedings under § 1675(c). And because reviews at issue in this case were initiated afterJanuary 1, 1995, the URAA amendments to the antidumping statutegovern this case. Therefore, in lightof the entire statutory scheme, I believe that Congress intended such inquiriesto apply to transition orders. To theextent the majority concludes otherwise, I respectfully dissent. [1] “Transition orders” are orders predating January 1, 1995,“the date the WTO Agreement enter[ed] into force with respect to the UnitedStates.” 19 U.S.C. § 1675(c)(6)(C)(2000). [2] Contrary to FAG’s argument, this case is not moot. The International Trade Commission’s(“ITC’s”) sunset review proceeding is not yet final, and a remand here wouldrequire the ITC to consider Commerce’s duty absorption determinations. [3] The “dumping margin” is the total amount by which the pricecharged for the subject merchandise in the home market exceeds the pricecharged in the United States. 19 U.S.C.§ 1677(35)(A) (2000).[4] The duty absorption inquiry only applies to affiliatedimporters. 19 U.S.C. § 1675(a)(4)(2000). The regulations deal separatelywith the problem of unaffiliated importers who are reimbursed by foreignexporters, providing that Commerce, when calculating the export price, will“deduct the amount of any antidumping duty or countervailing duty which theexporter or producer: (A) Paid directlyon behalf of the importer; or (B) Reimbursed to the importer.” 19 C.F.R. § 351.402(f) (2001). This has the effect of increasing the dutyamount. [5] Section 1675a(a)(1) provides in part: The [ITC] shall take into account— (A) itsprior injury determinations, including the volume, price effect, and impact ofimports of the subject merchandise on the industry before the order was issuedor the suspension agreement was accepted, (B) whetherany improvement in the state of the industry is related to the order or thesuspension agreement, (C) whetherthe industry is vulnerable to material injury if the order is revoked or thesuspension agreement is terminated, and (D) in anantidumping proceeding under section 1675(c) of this title, the findings of[Commerce] regarding duty absorption under section 1675(a)(4) of this title. 19U.S.C. § 1675a(a)(1) (2000). [6] 19 C.F.R. § 351.213(j)(2) provides: (j) Absorption of antidumping duties. (1) During any administrative review coveringall or part of a period falling between the first and second or third andfourth anniversary of the publication of an antidumping order under § 351.211,or a determination under § 351.218(d) (sunset review), the Secretary, ifrequested . . . will determine whether antidumping duties have been absorbed byan exporter or producer subject to the review if the subject merchandise issold in the United States through an importer that is affiliated with suchexporter or producer. . . . (2) For transition ordersdefined in section 751(c)(6) of the Act, the Secretary will apply paragraph(j)(1) of this section to any administrative review initiated in 1996 or 1998. [7] Antidumping Duty Orders: Ball Bearings and Cylindrical Roller Bearings, and Parts ThereofFrom Italy, 54 Fed. Reg. 20,903 (Dep’t Commerce May 15, 1989). [8] Antifriction Bearings (Other Than Tapered Roller Bearings)and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore,Sweden, Thailand, and the United Kingdom; Initiation of Antidumping DutyAdministrative Reviews and Notice of Request for Revocation of an Order, 61Fed. Reg. 31,506 (Dep’t Commerce June 20, 1996) (“Notice of Initiation”). [9] Antifriction Bearings (Other Than Tapered RollerBearings) and Parts Thereof From France, Germany, Italy, Japan, Romania,Singapore, Sweden and the United Kingdom; Preliminary Results of AntidumpingDuty Administrative Reviews and Partial Termination of Administrative Reviews,62 Fed. Reg. 31,566 (Dep’t Commerce June 10, 1997) (“Preliminary Results”). [10] Antifriction Bearings (Other than Tapered Roller Bearings)and Parts Thereof From France, Germany, Italy, Japan, Romania, Singapore,Sweden and the United Kingdom; Final Results of Antidumping AdministrativeReviews, 62 Fed. Reg. 54,043 (Dep’t Commerce Oct. 17, 1997) (“FinalResults”). [11] At oral argument, the following exchange took place betweenthe court and counsel for Commerce: THE COURT: “Whatis the ambiguous language . . . you’re construing?” COMMERCE: “Theambiguity, if there is one, is the absence of language. There is no specific reference in subsection(a) to the transition orders, but the entire section clearly addresses aprogram establishing a new program of duty absorption and five year inquiries,and recognizing that there were antidumping orders in existence prior to theestablishment of this program, and that this program needs to apply to thetransition orders. . . .” . .. . THE COURT: “There is no specific ambiguouslanguage— ” COMMERCE: “Thereis no specific ambiguous language. There is an absence of language. There is a gap that needs to be filled if one wants to read it sorestrictively as not applying to transition orders.” [12] Section 1675(a)(1)(B) provides that, “[a]t least once duringeach 12-month period beginning on the anniversary of the date of publication of. . . an antidumping duty order,” Commerce shall “review and determine . . .the amount of any antidumping duty.” 19U.S.C. § 1675(a)(1)(B) (2000). Section1675(a)(2) governs the “[d]etermination of antidumping duties,” and provides: For the purpose of paragraph (1)(B), [Commerce]shall determine– (i) the normal value and export price (or constructed exportprice) of each entry of the subject merchandise, and (ii) the dumping marginfor each such entry. 19U.S.C. § 1675(a)(2)(A) (2000). [13] Torrington argues for an evenbroader interpretation, urging that Commerce has authority to conduct dutyabsorption inquiries every second and fourth year after each successivesunset review of all orders that survive the initial sunset review. Torrington Br. at 29. We reject this theory. Neither the statute nor its legislativehistory suggests that Commerce may conduct duty absorption inquiries beyond theinitial sunset review, and the plain language of the statute provides that dutyabsorption inquiries be conducted “2 years or 4 years after the publication ofan antidumping duty order. . . .” 19U.S.C. § 1675(a)(4) (2000). [14] Eventhough Commerce’s regulations are inapplicable here, we have held thatCommerce’s administrative determinations are entitled to Chevrondeference. Koyo Seiko Co. v. UnitedStates, 258 F.3d 1340, 1346-47 (Fed. Cir. 2001). [15] Contrary to Torrington’s argument that we should disregardthe statutory language because it merely reflects a drafting error resultingfrom the pressures of fast-track legislation, this is not one of those raresituations in which statutory language can be ignored. See Chickasaw Nation v. UnitedStates, 122 S. Ct. 528, 535 (2001). 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