Hitachi High Techs. Am., Inc. v. United States - Opposition

No. 05-918

In the Supreme Court of the United States

HITACHI HIGH TECHNOLOGIES AMERICA, INC., PETITIONER

v.

UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

PAUL D. CLEMENT
Solicitor General
Counsel of Record
PETER D. KEISLER
Assistant Attorney General
DAVID M. COHEN
JEANNE E. DAVIDSON
DAVID S. SILVERBRAND
Attorneys
Department of Justice
Washington, D.C. 20530-0001
(202) 514-2217

QUESTION PRESENTED

Whether the court of appeals correctly sustained the Department of Commerce's practice, in connection with administrative reviews of antidumping duties, of liqui dating unreviewed entries from independent resellers at the cash deposit rate rather than the rate determined by a review of entries exported by the producer.

In the Supreme Court of the United States

No. 05-918

HITACHI HIGH TECHNOLOGIES AMERICA, INC., PETITIONER

v.

UNITED STATES, ET AL.

ON PETITION FOR A WRIT OF CERTIORARI
TO THE UNITED STATES COURT OF APPEALS
FOR THE FEDERAL CIRCUIT

BRIEF FOR THE UNITED STATES IN OPPOSITION

OPINIONS BELOW

The opinion of the court of appeals (Pet. App. 1a-6a) is not published in the Federal Reporter, but is re printed in 139 F. App'x 264. The opinion of the Court of International Trade (Pet. App. 7a-23a) is reported at 25 I.T.R.D. (BNA) 2045, and is available at 2003 WL 21972722.

JURISDICTION

The judgment of the court of appeals was entered on July 1, 2005. A petition for rehearing was denied on October 18, 2005 (Pet. App. 22a-23a). The petition for a writ of certiorari was filed on January 17, 2006. The jurisdiction of this Court is invoked under 28 U.S.C. 1254(l).

STATEMENT

1. The Anti-Dumping Act, 1921, 19 U.S.C. 1673 et seq., and the Tariff Act of 1930, 19 U.S.C. 1001 et seq., have long provided for the imposition of antidumping duties where "foreign merchandise is being, or is likely to be, sold in the United States at less than its fair value." 19 U.S.C. 1673.1 If the sale of a product at less than its fair value causes or threatens injury to an indus try in the United States, the statute provides for imposi tion of an antidumping duty "in an amount equal to the amount by which the normal value [i.e., the price when sold 'for consumption in the exporting country'] exceeds the export price [i.e., the price when sold 'to an unaffili ated purchaser in the United States']." 19 U.S.C. 1673, 1677a(a), 1677b(a)(1)(B)(i).

Commerce's publication of an antidumping duty or der imposes several requirements. Most significantly for this case, merchandise that is subject to an anti- dumping duty order may enter the United States only if accompanied by a cash deposit equal to the estimated dumping duties. 19 U.S.C. 1673e(a)(3). The initial cash deposit rate is based upon the dumping margin deter mined for the manufacturer of the merchandise in the original investigation. If an individual dumping margin was determined for a producer, that margin will be used as the cash deposit rate for its merchandise; if no sepa rate rate was calculated for the producer, the "all oth ers" rate applies. See, e.g., Micron Tech., Inc. v. United States, 117 F.3d 1386, 1390 n.5 (Fed. Cir. 1997).

Although cash deposits must be paid on all entries subsequent to an antidumping order, final calculation of duties that are owed on those entries may not occur until years after the goods are physically imported. Before liquidation, i.e., before final calculation and assessment of the duty, the statute permits interested parties to request an administrative review to determine the dumping margin applicable to the entries, which deter mination is based upon sales of the subject merchandise made during the period of review. 19 U.S.C. 1675. The regulations in effect at the time of the proceedings at issue here allowed any interested party to request a re view of specified producers or resellers covered by an order. See 19 C.F.R. 353.22(a)(1) (1994) (request by interested domestic party); 19 C.F.R. 353.22(a)(2) (1994) (producer or reseller could request review of itself), 19 C.F.R. 353.22(a)(3) (1994) (importer could request re view of its producer or reseller).2 If a review is re quested, Commerce will conduct an administrative re view of merchandise covered by the request.

Section 1675(a)(2)(C) requires the final results of an administrative review to "be the basis for the assess ment of countervailing or antidumping duties on entries of merchandise covered by the determination and for deposits of estimated duties." 19 U.S.C. 1675(a)(2)(C). Commerce therefore applies the final results of an ad ministrative review to all entries "covered by" the re view (with the difference between the review rate and the cash deposit rate being either refunded or collected, with interest, as appropriate). Ibid.; 19 C.F.R. 353.22(c)(10), 353.24(a) (1994). The rate determined by the administrative review also becomes the cash deposit rate for entries of the subject merchandise that occur before completion of the next review. 19 U.S.C. 1675(a)(2)(C); 19 C.F.R. 353.22(c)(10) (1994). If no ad ministrative review is requested, entries occurring sub sequent to the prior review are liquidated at their cash deposit rate. 19 C.F.R. 353.22(e) (1994).

During an administrative review, Commerce sepa rately analyzes information regarding the sales of each producer or reseller reviewed and determines a company-specific dumping margin for the period "for each person reviewed." 19 C.F.R. 353.22(c)(7)(ii) (1994). "If no information about import transactions with a par ticular reseller is before Commerce during the review, then the transactions of an importer who imports the subject merchandise from that reseller do not fall within the scope of the review," Consolidated Bearings Co. v. United States (Consolidated I), 348 F.3d 997, 1005 (Fed. Cir. 2003), and merchandise imported from that reseller is liquidated at the cash deposit rate, in accordance with 19 C.F.R. 353.22(e) (1994).

In 1998, Commerce sought to clarify its policy in that regard and proposed a modification of its practice. See Antidumping and Countervailing Duty Proceedings: Assessment of Antidumping Duties (Assessment I), 63 Fed. Reg. 55,361 (1998). Commerce first explained what information is gathered in the course of its review of a producer and what imports are covered by a producer's review rate. "A [producer] reports sales that it knew at the time of the sale were destined for the United States as its U.S. sales," including sales to a reseller that the producer knows are destined to be resold in the United States, and information regarding those sales is consid ered in determining the producer's dumping margin for the period under review. Id. at 55,363. In contrast, "[t]he producer will report sales of the subject merchan dise for which it did not know the destination of the mer chandise as foreign market sales," which are not consid ered in setting the producer's review rate. Ibid. Thus, to the extent that merchandise manufactured by the producer and then sold to foreign resellers in "foreign market sales" is subsequently exported to the United States, such transactions are not included in the calcula tion of the producer's review rate.

Commerce went on to give notice that, in a change from past practice, it proposed to construe the reference in 19 C.F.R. 353.22(e) (1994) to the "cash deposit rate" applicable to unreviewed resellers as the cash deposit rate that would have been collected at the time of entry had Commerce been aware that the merchandise was purchased from an unrelated third-party reseller, i.e., the "all others" rate, rather than the cash deposit rate set for the producer based upon the initial review of the producer's own exports. Assessment I, 63 Fed. Reg. at 55,363. After receiving and reviewing comments, Com merce prospectively implemented in 2003 a policy of liquidating unreviewed resellers' sales at the "all others" rate. See Antidumping and Countervailing Duties: As sessment of Antidumping Duties (Assessment II), 68 Fed. Reg. 23,954 (2003).

2. During 1992 and 1993, Commerce conducted an antidumping duty investigation with respect to dynamic random access memory semiconductors (DRAMs) from the Republic of Korea. This investigation resulted in final and amended final determinations that DRAMS produced in Korea were being sold in the United States at less than fair value and Commerce therefore issued an antidumping duty order. See Final Determination of Sales at Less Than Fair Value: Dynamic Random Access Memory Semiconductors of One Megabit and Above From the Republic of Korea, 58 Fed. Reg. 15,467 (1993); Antidumping Duty Order and Amended Final Determi nation: Dynamic Random Access Memory Semiconduc tors of One Megabit and Above from the Republic of Korea, 58 Fed. Reg. 27,520 (1993). The antidumping duty order established cash deposit rates of 4.97% for DRAMS produced by LG Semicon Co., Ltd. (formerly Goldstar Electron Co., Ltd.), 11.16% for DRAMs pro duced by Hyundai Electronics Co., Ltd., 0.82% for DRAMs produced by Samsung Semiconductor Co., Ltd., and 3.85% for "All others." Id. at 27,522.

During the first period of review-October 29, 1992, through April 30, 1994-petitioner, Hitachi High Tech nologies America, Inc. (formerly Nissei Sangyo Amer ica, Ltd.), imported merchandise produced by LG Semicon but purchased through a reseller in Japan. Upon entry, petitioner paid estimated cash deposits at the rate of 4.97%, the estimated duty for merchandise produced by LG Semicon. Pet. App. 3a.

On May 4, 1994, Commerce published a notice of op portunity to request an administrative review with re spect to subject merchandise entering the United States during the first period of review. See Antidumping or Countervailing Duty Order, Finding, or Suspended In vestigation Opportunity To Request Administrative Re view, 59 Fed. Reg. 23,051. LG Semicon and Hyundai each requested reviews of their imports. Neither peti tioner nor the Japanese reseller from which petitioner purchased its DRAMs requested a review of that re seller's imports.

That same fact pattern repeated itself with respect to the second period of review-May 1, 1994, through April 30, 1995. Pet. App. 3a. Petitioner imported mer chandise produced by LG Semicon, but which petitioner had purchased from an independent Japanese reseller. Upon entry, petitioner posted estimated cash deposits at the rate of 4.97%. When Commerce published notice of an opportunity to request an administrative review with respect to merchandise entering the United States dur ing the second period of review, see Antidumping or Countervailing Duty Order, Finding, or Suspended In vestigation; Opportunity To Request Administrative Review, 60 Fed. Reg. 24,831 (1995), LG Semicon and Hyundai again requested reviews, but neither petitioner nor its Japanese reseller did so.

In 1996 and 1997, Commerce published the final re sults of its first and second administrative reviews of DRAMs from Korea. See Dynamic Random Access Memory Semiconductors of One Megabit or Above From the Republic of Korea; Final Results of Antidumping Duty Administrative Review (First Review Final Re sults), 61 Fed. Reg. 20,216 (1996); Dynamic Random Access Memory Semiconductors of One Megabit or Above From the Republic of Korea; Final Results of Antidumping Duty Administrative Review (Second Re view Final Results), 62 Fed. Reg. 965 (1997). In its first review determination, Commerce established a dumping margin for LG Semicon of zero percent, and in the sec ond review, Commerce similarly established a dumping margin for LG Semicon of 0.01% (i.e., a de minimis mar gin). 61 Fed. Reg. at 20,222; 62 Fed. Reg. at 968. Be cause neither petitioner nor its reseller had requested a review of imports from that reseller, sales associated with petitioner's entries of Korean DRAMs were not examined during the review process. Pet. App. 3a-4a.

Both review results were challenged in the Court of International Trade by a domestic interested party, Mi cron Technology, Inc. Pet. App. 3a. See Micron Tech., Inc. v. United States, 44 F. Supp. 2d 216 (Ct. Int'l Trade 1999) (challenge to First Review Final Results); Micron Tech., Inc. v. United States, 23 Ct. Int'l Trade 380 (1999) (same); Micron Tech., Inc. v. United States, 23 Ct. Int'l Trade 549 (1999) (same); Micron Tech., Inc. v. United States, 40 F. Supp. 2d 481 (Ct. Int'l Trade 1999) (chal lenge to Second Review Final Results), aff'd and rev'd in part, 243 F.3d 1301 (Fed. Cir. 2001).

On November 1, 1999, Commerce issued liquidation instructions to Customs concerning DRAMs that had entered during the first and second periods of review. Entries of DRAMs produced by LG Semicon and im ported by certain identified importers whose sales were considered during the administrative review were or dered to be liquidated at their company-specific rates. Entries of DRAMs produced by LG Semicon and im ported by all other importers were ordered to be liqui dated at the cash deposit rates required upon entry. Pet. App. 10a.

3. Petitioner commenced this action in the Court of International Trade on March 13, 2000, invoking the court's jurisdiction pursuant to 28 U.S.C. 1581(i). Peti tioner contended that it was entitled to the zero duty rate applied to merchandise produced by LG Semicon pursuant to the administrative review, not the cash de posit rate applied upon entry to merchandise that had been produced by LG Semicon.

The Court of International Trade, relying upon the trial court's opinion in Consolidated Bearings Co. v. United States, 182 F. Supp. 2d 1380 (Ct. Int'l Trade 2002), rev'd, 348 F.3d 997 (Fed. Cir. 2003), opinion after remand, 346 F. Supp. 2d 1343 (Ct. Int'l Trade), aff'd, 412 F.3d 1266 (Fed. Cir. 2005), held that the challenged liq uidation instructions were arbitrary and capricious be cause Commerce's explanation of those instructions was insufficient. Pet. App. 20a.

4. The court of appeals reversed. Pet. App. 1a-6a. Relying upon the court of appeals' holdings in Consoli dated I and Consolidated Bearings Co. v. United States (Consolidated II), 412 F.3d 1266 (Fed. Cir. 2005), the court of appeals held that petitioner did not have a stat utory right to liquidation at the producer's review rate, and that Commerce had consistently liquidated unre viewed entries from unrelated resellers at the cash de posit rate. Pet. App. 6a.

ARGUMENT

The court of appeals correctly held that Commerce's instruction to liquidate petitioner's entries, which were not covered by an administrative review, at the cash deposit rate paid upon entry of the merchandise into the United States was lawful and did not constitute an arbi trary departure from past practice. That decision does not conflict with any decision of another court of appeals or of this Court. Nor are the issues presented in this case, which are unlikely to recur due to revised regula tory provisions, of exceptional importance. Further re view is therefore unwarranted.

1. Petitioner first contends (Pet. 12-13) that the plain meaning of 19 U.S.C. 1675(a)(2)(c) requires Com merce to grant importers the benefit of the review rate calculated for the producer of the goods they purchase, even if they did not purchase the goods from the pro ducer but instead purchased them from an independent reseller (potentially at different prices than those of fered by the producer). Specifically, petitioner contends that because Section 1675(a)(2)(C) states that Com merce's determination in an administrative review shall be "the basis for the assessment of * * * antidumping duties on entries of merchandise covered by the determi nation," petitioner is necessarily entitled to the benefit of the producer's review, despite the fact that it did not participate in the administrative review and thus its en tries were not considered by Commerce in determining the producer's review rate. Pet. 13.

Contrary to petitioner's contention, there is nothing in the statutory language that entitles importers from an unreviewed reseller to the benefit of the producer's rate. In relevant part, Section 1675(a)(2)(C) states that Commerce's determination of a review rate shall apply with respect to "entries of merchandise covered by the determination." Ibid. (emphasis added). Petitioner's entries were not "covered by" Commerce's administra tive reviews because neither petitioner nor its reseller requested a review of those entries, and the producer, which was unaware of the reseller's sales to the United States, provided no information about petitioner's im ports as part of the producer's review. Accordingly, Section 1675(a)(2)(C) is of no benefit to petitioner.

During an administrative review, if one is requested, Commerce analyzes the data related to the particular entity-either the producer or the third-party reseller- whose export of merchandise to the United States was the subject of the request. "If no information about im port transactions with a particular reseller is before Commerce during the review, then the transactions of an importer who imports the subject merchandise from that reseller do not fall within the scope of the review." Consolidated I, 348 F.3d at 1005.

Commerce has adopted a policy of focusing on the particular exporter in order to ensure that the antidumping duties assessed upon imported merchan dise are as accurate and importer-specific as possible. Commerce explained in its 1998 clarification why it would not be appropriate to use a producer's rate for an unaffiliated reseller:

The longstanding principle behind the Department's assessment policy is that company-specific assess ment rates must be based on the sales information of the first company in the commercial chain that knew, at the time the merchandise was sold, that the mer chandise was destined for the United States. * * * If dumping is occurring, the company that sets the price of the merchandise sold in the United States is responsible for the dumping, and any im porter-specific assessment rate must reflect that com pany's sales prices to the United States.

Assessment I, 63 Fed. Reg. at 55,362. The Federal Cir cuit has likewise observed that "[t]he simple fact that one importer imports the same merchandise as another importer does not necessarily lead to the conclusion that they are subject to the same antidumping duties. Be cause sales prices vary from exporter to exporter and from time to time, separate entries of the same good may have different duties." Consolidated I, 348 F.3d at 1005.

Commerce's policy recognizes that resellers who act independently of the producer may engage in dumping, even if the producer has amended its own sales practices to conform to United States antidumping law. For ex ample, although Hyundai and LG Semicon appear to have altered their pricing practices with respect to sales to the United States such that their own exports to the United States were assessed zero dumping margins in the periods of review at issue here, Commerce has no way of knowing (absent a reseller-specific review) whether petitioner's reseller modified its pricing prac tices in a similar fashion. The export price at which peti tioner's Japanese reseller sold goods to the United States could very well have been below the "normal value" of Korean DRAMs. See Consolidated I, 348 F.3d at 1005 (quoting Commerce's explanation that "resellers * * * may be dumping to a greater extent than the party under review"). Without information concerning the re seller's own sales of the subject merchandise, when the reseller is the first party to make a sale for export to the United States, Commerce is unable to calculate a spe cific rate for that reseller.

Petitioner does not dispute that its reseller could have been engaging in dumping behavior, even if LG Semicon was not. Rather, petitioner argues (Pet. 13-14) that the text of the statute and regulation compel Com merce to afford petitioner the benefit of LG Semicon's rate, even if petitioner's reseller was engaging in its own dumping behavior. Petitioner maintains that, under Commerce's regulation, "Commerce conducts adminis trative reviews of [only] two types of foreign parties: (i) producers; and (ii) exporters" and that, because Com merce was requested to review "merchandise manufac tured and/or sold" by LG Semicon, the review necessar ily encompassed all DRAMs produced by LG Semicon. Pet. 13-14 (citing 19 C.F.R. 351.213(b)(1)). There is no reason, however, why the regulatory phrase "review of [a] specified individual producer[]" in 19 C.F.R. 353.22(a)(1) (1994)3 must be construed, as petitioner pos its, to mean a review of all merchandise manufactured by the producer, as opposed to meaning, as Commerce construes it, all sales by that producer to the United States. See Assessment II, 68 Fed. Reg. at 23,958 ("When the Department conducts a review of a pro ducer, it is conducting a review of that producer's U.S. sales, not the producer's merchandise.").

If anything, the relevant version of the regulation cuts against petitioner's construction. Petitioner con tends (Pet. 13) that review can be requested of a pro ducer "(1) in its capacity as an exporter (in which case all entries exported by that party are covered by the determination in the review); (2) in its capacity as a pro ducer (in which case all entries produced by that party are covered by the determination in the review); or, (3) in both of these capacities (in which case all entries ei ther produced or exported by that party are covered by the determination in the review)." The premise of peti tioner's characterization of the regulatory framework is that a requester seeking the first kind of review-review of only the producer's own exports-must specify that it wants a review of the producer qua "exporter." See 19 C.F.R. 351.213(b)(1) (allowing requests for review of "exporters or producers"). But no such request could have been made under the regulations in place in 1994. Those regulations provided for review of "specified indi vidual producers or resellers." 19 C.F.R. 353.22(a)(1) (1994) (emphasis added). The term "reseller" was, in turn, defined to mean "any person (other than the pro ducer) whose sales the Secretary uses to calculate * * * U.S. price." 19 C.F.R. 353.2(s) (1994) (emphasis added). It would have been impossible, there fore, to request a review of the producer qua "reseller," because, by definition, the producer could not be a re seller.

It follows from the foregoing that if the phrase "re view of [a] * * * producer[]" were given the meaning attributed to it by petitioner, the only two choices avail able under the 1994 regulations would have been to re quest a rate specific to a particular reseller or request a producer rate that could be claimed by all exporters of that producer's merchandise. Such a regime would have been an open invitation to evasion and abuse. A reseller would have been free to choose its own rate or that of the producer, depending on which rate was lower. A reseller engaging in patently illegal dumping behavior could have done so with virtual impunity, while enjoying a low antidumping rate determined based upon the en tirely unrelated terms of the producer's own exports. In contrast, the domestic companies injured by the re seller's dumping behavior could have obtained a reseller-specific rate only if they could identify the re sponsible reseller, information to which the domestic companies would not necessarily have been privy.

Commerce's view, i.e., that analysis of one series of transactions or entries does not necessarily produce rates applicable to a wholly separate and distinct series of transactions simply because the merchandise at issue in each was produced by the same company, is fully con sistent with the statutory and regulatory provisions. By its terms, Section 1675(a)(2)(C) requires Commerce to apply the final results to those transactions "covered by" the review. The sales practices of the reseller from whom petitioner imports DRAMs were simply not cov ered by the administrative review in this case. There fore, petitioner's imports are not within the scope of the final determination of LG Semicon's review rate. Nor does the regulation compel Commerce to treat a review of a producer's own exports to the United States as de termining the dumping margin of an unrelated reseller. Because neither the statute nor the regulation compels Commerce to apply the final results of an administrative review to any entries of merchandise that were not cov ered in the administrative review, petitioner has no enti tlement to the antidumping rates which resulted from the administrative reviews of LG Semicon's exports. See Consolidated I, 348 F.3d at 1007 ("Commerce's ex pertise endows it with discretion to determine when and how to implement the final results beyond their literal, statutory scope.") (citing Nippon Steel Corp. v. United States, 337 F.3d 1373, 1379 (Fed. Cir. 2003)).

2. Petitioner also contends (Pet. 15) that Commerce abandoned "its previous policy of ordering liquidation at the manufacturer's rate" when it clarified in 1998 that only exports to the United States through resellers of which the producer was aware would be entitled to the review rate determined for the producer. See Assess ment I, 63 Fed. Reg. at 55,362. Petitioner concedes (cor rectly) that its departure-from-past-practice argument "does not rise to a level justifying review by this Court." Pet. 15. The issue of Commerce's purported change in practice lacks any continuing significance, as it could only conceivably have relevance to entries that pre- dated the clarification of Commerce's policy.

In any event, there is no need for this Court to inde pendently review the voluminous record concerning Commerce's past practice in that regard. As the court of appeals correctly held, the historical record simply does not support petitioner's claim that Commerce had a consistent practice of affording independent resellers the benefit of the producer's review rate. Pet. App. 6a; Consolidated II, 412 F.3d at 1272. To the contrary, to the extent Commerce had a consistent practice, it was to liquidate entries that were not subject to an administra tive review at the cash deposit rate (i.e., the deposit rate at the time of entry). Ibid.

As demonstrated above, that policy was reflected in Commerce's regulations. Those regulations provided that a request for administrative review should indicate the "specified individual producers or resellers" for which a review was sought, 19 C.F.R. 353.22(a)(1) (1994), and that, if no timely request for a review was received, Commerce would "instruct the Customs Service to as sess antidumping duties on the merchandise * * * at rates equal to the cash deposit of, or bond for, estimated antidumping duties required on that merchandise at the time of entry," 19 C.F.R. 353.22(e)(1) (1994). See Anti dumping Duties, Final Rule, 54 Fed. Reg. 12,742, 12,757 (1989) (explaining, in the Preamble concerning the oper ation of Section 353.22(e), that "[i]f no review of particu lar entries is requested, however, the cash deposit rate becomes the 'fixed' rate, and the entries will be liqui dated at that rate") (emphasis added).

In Consolidated II, the court of appeals concluded, after a careful review of the historical record, that "sub stantial evidence supports Commerce's determination that it has consistently liquidated unreviewed entries from unrelated resellers at the cash deposit rate." 412 F.3d at 1272; Pet. App. 6a (quoting Consolidated II). The record upon which the court of appeals based that conclusion in Consolidated II is "substantially the same as that offered by the respective parties in the present case." Ibid. There is no warrant for this Court to re view that record-intensive determination, especially when, as here, the issue will not arise in future cases in light of Commerce's explicit clarification of its practice.4

3. Finally, petitioner's contention (Pet. 15) that Com merce's practice places importers "in a 'catch 22' situa tion" is without basis and does not warrant review. Peti tioner contends (Pet. 15-16) that under the policy imple mented by Commerce in 2003 of liquidating exports by unreviewed independent resellers at the "all others" rate, importers are put to the allegedly untenable choice of purchasing merchandise directly from the producer, in order to get the benefit of its rate, or paying the "out dated, artificially high" rate applicable to "all others." As an initial matter, that argument has nothing to do with this case, in which Commerce did not apply the "all others" rate (as it will do in cases subsequent to 2003), but rather the cash deposit rate collected at the time of entry.

In any event, petitioner's argument rests on a funda mentally mistaken premise. Any importer could, at the time of the events at issue here as well as today, request an administrative review of any reseller from which it purchased its merchandise to determine a company-spe cific dumping margin for that reseller. See 19 C.F.R. 353.22(a)(3) (1994); 19 C.F.R. 351.213(b)(3) (allowing importer to request review of an "exporter or producer * * * of the subject merchandise imported by that importer"). Petitioner was free to request an ad ministrative review of its entries and obtain a rate spe cific to its own reseller. Petitioner's failure to avail itself of that right provides no justification for further review by this Court.

CONCLUSION

The petition for a writ of certiorari should be denied.

Respectfully submitted.

PAUL D. CLEMENT
Solicitor General
PETER D. KEISLER
Assistant Attorney General
DAVID M. COHEN
JEANNE E. DAVIDSON
DAVID S. SILVERBRAND
Attorneys

APRIL 2006

1 That language was originally adopted in the Anti-Dumping Act, 1921, ch. 14, § 201, 42 Stat. 11, which, prior to 1979, was codified at 19 U.S.C. 160 et seq. (1976). It was subsequently reenacted in 1979 as Title VII of the Tariff Act of 1930, ch. 497, § 1, 46 Stat. 590, as part of a more general revision of customs laws relating to the General Agreement on Tariffs and Trade. See Trade Agreements Act of 1979, Pub. L. No. 96-39, Tit. I, § 101, 93 Stat. 162 (19 U.S.C. 1673 et seq.).

2 The current version of the regulation, which was relocated as part of a general revision of the antidumping regulations to implement the Uruguay Round Agreements Act, refers to producers and "exporters," rather than resellers. 19 C.F.R. 351.213(b)(1), (2) and (3). The term "exporters" as used in the regulations encompasses resellers. See 19 C.F.R. 204(e)(3). The amended regulations apply to "administrative reviews initiated on the basis of requests made on or after the first day of July 1997," whereas previously initiated reviews, such as those at issue here, "continue to be governed by the regulations in effect on the date the * * * requests were made." 19 C.F.R. 351.701.

3 As noted above, see note 2, supra, the relevant version of the regulation is that in effect during the period in question, 1994-1996, rather than the current version cited by petitioner.

4 Petitioner attempts (Pet. 9) to cast doubt on the court of appeals' conclusion by citing two instances in which petitioner maintains that Commerce applied the producer's review rate to imports from an unrelated reseller. Ibid. (citing ABC Int'l Traders, Inc. v. United States, 19 Ct. Int'l Trade 787 (1995), and Commerce's 1997 liquidation instructions for entries during the third period of review for Korean DRAMs). To determine whether the instances cited by petitioner actually were counter-examples would, however, require detailed information about the circumstances of each review. See, e.g., Assess ment II, 68 Fed. Reg. at 23,958 (explaining that it was unclear from the Court of International Trade's opinion in ABC Int'l Traders whether the producer in that review had "knowledge that the merchandise in question was destined for the United States"). In any event, petitioner could not prevail merely by showing isolated instances in which Commerce reached a different result. Rather, it would have to show a "change from agency practice." National Cable & Telecomm. Ass'n v. Brand X Internet Servs., 125 S. Ct. 2688, 2699 (2005) (emphasis added). The court of appeals correctly held that petitioner had not satisfied its burden here. Pet. App. 6a (citing Consolidated II, 412 F.3d at 1272).