2011

UNITED STATES STEEL CORPORATION,Petitioner,

V.

UNITED STATES OF AMERICA ANDTATA STEEL IJMUIDEN BV (FORMERLY KNOWN AS

CORUS STAAL BV),Respondents.

NUCOR CORPORATION,Petitioner,

V.

UNITED STATES OF AMERICA ANDTATA STEEL IJMUIDEN BV (FORMERLY KNOWN AS

CORUS STAAL BV),Respondents.

ON PETITIONS FOR WRIT OF CERTIORARI

TO THE UNITED STATES COURT OF APPEALS

FOR THE FEDERAL CIRCUIT

BRIEF OF SOUTHERN SHRIMP ALLIANCE ANDCOALITION FOR FAIR LUMBER IMPORTS AS

AMICI CURIAE IN SUPPORT OF PETITIONERS

ANDREW W. KENTZJORDAN C. KAHN*DAVID A. YOCISNATHANIEL MAANDIG RICKARDPICARD KENTZ & ROWE LLP1750 K Street, NW Suite1200Washington, DC 20006(202) 331-4040jkahn@pkrllp.com* Counsel of Record

DAVID A. BENTLEY

COALITION FOR FAIR

LUMBER IMPORTS

Attorneys for Amici Curiae

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TABLE OF CONTENTS

Page_

TABLE OF CONTENTS ...........................................i

TABLE OF AUTHORITIES ...................................iii

INTEREST OF AMICI CUR~E .............................1

REASONS FOR GRANTING THEPETITIONS ..............................................................2

THE U.S. SHRIMP INDUSTRYHAS A STRONG INTEREST INTHE COURT GRANTINGCERTIORARI ...........................................3

no The Critical Antidumping Duty OrdersHave Been Eroded By TheAbandonment Of Zeroing InInvestigations ..................................... 3

The Vulnerable UoS. Shrimp IndustryWill Be Seriously Harmed If CommerceContinues To Recalculate InvestigationDumping Margins Without Zeroing... 7

II. THE U.S. LUMBER INDUSTRYHAS A STRONG INTEREST INTHE COURT GRANTINGCERTIORARI .........................................11

no Zeroing In Investigations Has BeenImportant To The U.S. LumberIndustry .............................................11

Bo The U.S. Lumber Industry Will BenefitFrom Commerce Resuming Its Use OfZeroing In Investigations ................. 15

CONCLUSION .......................................................17

ii

TABLE OF AUTHORITIES

Cases

United States Steel Corp. v. United States, 621Fed.3d 1351 (Fed. Cir. 2010) ........................ 2, 9, 16

Wheatland Tube Co. v. United States, 495 F.3d 1355(Fed. Cir. 2007) .......................................................3

Statutes

19 U.S.C. § 1516a .....................................................1219 U.S.C. § 1673 .........................................................219 U.S.C. § 1673b .......................................................619 U.S.C. § 1673d ...................................................4, 619 U.S.C. § 1677 .........................................................219 U.S.C. § 3512 .......................................................1319 U.S.C. § 3538 .......................................................13TariffAct of 1930 .................................................2, 15

Rules

U.S. Supreme Court Rule 37.6 ..................................1

Constitutional Provisions

U.$. Const. art. II § 2 cl. 2 .......................................12

Administrative Determinations

Certain Frozen or Canned Warmwater Shrimp andPrawns From Brazil, China, Ecuador, India,Thailand, and Vietnam, USITC Pub. 3748 (Jan.2005) .............................................................. 4, 5, 10

Frozen Warmwater Shrimp From Brazil, China,India, Thailand, and Vietnam, USITC Pub. 4221(Mar. 2011) ................................................ 7, 8, 9, 10

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Implementation of the Findings of the WTO Panel inUnited States Antidumping Measure on Shrimpfrom Ecuador: Notice of Determination Undersection 129 of the Uruguay Round Agreements Actand Revocation of the Antidumping Duty Order onFrozen Warmwater Shrimp from Ecuador, 72 Fed.Reg. 48,257 (Aug. 23, 2007) .................................... 6

Implementation of the Findings of the WTO Panel inUnited States--Antidumping Measure on ShrimpFrom Thailand: Notice of Determination UnderSection 129 of the Uruguay Round Agreements Actand Partial Revocation of the Antidumping DutyOrder on Frozen Warmwater Shrimp FromThailand, 74 Fed. Reg. 5,638 (Jan. 30, 2009) ........7

Notice of Amended Final Determination of Sales atLess Than Fair Value and Antidumping DutyOrder: Certain Frozen Warmwater Shrimp fromBrazil, Thailand, India, the People’s Republic ofChina, the Socialist Republic of Vietnam, andEcuador, 70 Fed. Reg. 5,143, 5,145, 5,147, 5,149,5,152, 5,156 (Feb. 1, 2005) ......................................5

Notice of Amended Final Determination of Sales atLess Than Fair Value and Antidumping DutyOrder: Certain Softwood Lumber Products FromCanada, 67 Fed. Reg. 36,068 (May 22, 2002) ......11

Notice of Determination Under Section 129 of theUruguay Round Agreements Act: AntidumpingMeasures on Certain Softwood Lumber ProductsFrom Canada, 70 Fed. Reg. 22,636, 22,637 (May 2,2005) ...................................................................... 14

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Notice of Final Determination of Sales at Less ThanFair Value and Negative Final Determination ofCritical Circumstances: Certain Frozen andCanned Warmwater Shrimp From India andThailand, 69 Fed. Reg. 76,916, 76,918 (Dec. 23,2004) ........................................................................5

Notice of Final Determination of Sales at Less ThanFair Value: Certain Frozen and CannedWarmwater Shrimp From Brazil and Ecuador, 69Fed. Reg. 76,910, 76,913 (Dec. 23, 2004) ...............5

Notice of Final Determination of Sales at Less ThanFair Value: Certain Frozen and CannedWarmwater Shrimp From the People’s Republic ofChina and the Socialist Republic of Vietnam, 69Fed. Reg. 70,997, 71,005 (Dec. 8, 2004) .................5

Notice of Final Determination of Sales at Less ThanFair Value: Certain Softwood Lumber Productsfrom Canada, 67 Fed. Reg. 15,539 (Apr. 2. 2002)......................................................................... 11, 14

International Agreements

North American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 683 (1993) .....11, 12

Softwood Lumber Agreement Between theGovernment of Canada and the Government of theUnited States of America, U.S.-Can., Sept. 12,2006 .................................................................14, 15

WTO Documents

United States - Anti Dumping Measure on Shrimpfrom Ecuador, WT/DS335/R, Panel Report (Jan. 30,2007) ........................................................................ 6

V

United States - Anti-Dumping Measures on CertainFrozen Warmwater Shrimp from China,WT/DS422/1, Request for Consultations (Mar. 2,2011) ........................................................................9

United States - Anti-Dumping Measures on CertainShrimp from Viet Nam, WT/DS404/8,Communication from Panel Chairman (Apr. 20,2011) ........................................................................9

United States - Final Dumping Determination OnSoftwood Lumber From Canada, Recourse toArticle 21.5 of the DSU by Canada,WT/DS264/AB/RW, Report of the Appellate Body,(Aug. 15, 2006) ......................................................14

United States - Final Dumping Determination OnSoftwood Lumber From Canada, WT/DS264/AB/R,Appellate Body Report (Aug. 11, 2004) ...............13

United States - Measures Relating to Shrimp FromThailand, WT/DS343/R, Panel Report (Feb. 29,2008) ........................................................................6

NAFTA Decisions

Certain Softwood Lumber From Canada: FinalAffirmative Antidumping Determination, NAFTASecretariat File No. USA-CDA-2002-1904-02,Decision of the Panel Following Remand (June 9,2005) ......................................................................13

Certain Softwood Lumber From Canada: FinalAffirmative Antidumping Determination, NAFTASecretariat File No. USA-CDA-2002-1904-02,Panel Decision (July 17, 2003) ...................... 11, 12

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INTEREST OF AMICI CURIAE1

The Southern Shrimp Alliance ("SSA") is anorganization of shrimp fishermen, shrimp processors,and other members of the domestic industry in theeight warmwater shrimp producing states ofAlabama, Florida, Georgia, Louisiana, Mississippi,North Carolina, South Carolina, and Texas. TheSSA works to ensure the continued vitality andexistence of the U.S. shrimp industry that has been,and continues to be, adversely impacted by theabandonment of zeroing in antidumpinginvestigations.

The Coalition for Fair Lumber Imports("Coalition") is an alliance of large and smallproducers of softwood lumber from across the UnitedStates. The Coalition monitors Canada’s unfairtrade practices involving softwood lumber, includingsales of softwood lumber in the United States at lessthan fair value (i.e., dumping) and the under-pricingof timber used to produce the lumber (i.e.,

Pursuant to U.S. Supreme Court Rule 37.2(a), allparties have consented to the filing of this brief. Counsel ofrecord for all parties received notice of the Amici Curiae’sintention to file this brief at least 10 days prior to the due date.Letters evidencing such consent have been filed with the Clerkof the Court.

Pursuant to U.S. Supreme Court Rule 37.6, AmiciCuriae affirm that no counsel for any party authored this briefin whole or in part, and no counsel or party made a monetarycontribution intended to fund the submission of this brief. Noperson other than Amici Curiae, their members, or theircounsel made a monetary contribution to its preparation or itssubmission.

subsidization). The Coalition’s goal is to ensure fulland fair competition in the American lumber market,free from the effects of the undue advantagescurrently enjoyed by Canadian lumber producers.The Coalition has a vital interest in preserving thestrength and effectiveness of U.S. trade laws,including the use of zeroing in antidumpinginvestigations.

REASONS FOR GRANTING THE PETITIONS

United States Steel Corp. v. United States, 621Fed.3d 1351 (Fed. Cir. 2010), has importance thatextends far beyond the U.S. steel industry. Everydomestic industry that relies on U.S. antidumpingduty laws to counteract injury from unfairly dumpedimports has a stake in the outcome of this case andthe proper interpretation of the Tariff Act of 1930.The appellate decision endorses an impermissiblestatutory construction that purports to authorize theU.So Department of Commerce ("Commerce") toabandon its use of zeroing in investigations -- areversal of longstanding agency insistence that theantidumping law requires zeroing -- solely toplacate the World Trade Organization ("WTO"). Thedeleterious impacts of this ruling are felt broadlythroughout the U.S. economy.

The U.S. shrimp and softwood lumberindustries each have a strong, continuing interest inwhether zeroing is compelled by the Tariff Act of1930. See 19 U.S.C. §§ 1673, 1677(34), (35). Bothhave benefitted from the trade relief afforded by

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zeroing in antidumping investigations at a timewhen Commerce interpreted the statute to requirezeroing. More recently, in response to activist WTOdecisions creating international obligations that theUnited States never agreed to accept, Commercereversed its understanding of the statutory mandateand now asserts its discretion not to use zeroing.

The U.S. shrimp and softwood lumberindustries will endure substantial harm if UnitedStates Steel remains uncorrected. As set forth in thePetitions for Writ of Certiorari filed by United StatesSteel Corporation and Nucor Corporation, the plainlanguage of the statute mandates the use of zeroingin investigations and Commerce’s decision toabandon this required practice weakens the tradelaws. When the antidumping laws are not properlyenforced, domestic industries suffer "lost sales,declining prices, declining market share, anddeclining profits." Wheatland Tube Co. v. UnitedStates, 495 F.3d 1355, 1364 (Fed. Cir. 2007).

THE U.S. SHRIMP INDUSTRY HASA STRONG INTEREST IN THECOURT GRANTING CERTIORARI

A. The Critical Antidumping Duty OrdersHave Been Eroded By The AbandonmentOf Zeroing In Investigations

The U.S. shrimp industry in 2005 obtainedurgently needed and well-deserved relief against aflood of dumped imports from Brazil, China, Ecuador,

3

India, Thailand, and Vietnam. Pursuant to thestatutory process, before the antidumping dutyorders issued, the U.S. International TradeCommission ("ITC") determined that the industrywas materially injured. See 19 U.S.C. § 1673d. TheITC found that dumped imports had both"significant price-depressing effects" and an overall"significant impact on the domestic industry."Certain Frozen or Canned Warmwater Shrimp andPrawns From Brazil, China, Ecuador, India,Thailand, and Vietnam, USITC Pub. 3748 (Jan.2005) ("ITC Investigation"), at 31, 35.

The ITC detailed that the dumped importscaused material harm to the U.S. shrimp industry.Specifically, the ITC determined:

¯ "[T]hat a causal nexus exists between thelarge quantities of subject imports enteringthe U.S. market at declining prices and thecorresponding price declinesfor U.S.-processed certain non-cannedwarmwatershrimp.";

¯ "During the period examined,fishermenexperienced declines in employment-relatedindicators and extreme deterioration inoperating performance."; and

¯ "The large and increasing volume of subjectimports that entered the United Statesduring the period examined caused domesticprices to decline. These declines led todeclines in operating revenues for both

4

fishermen and processors, poor financialperformance, and declining employment."

Id. (emphasis added).

Commerce thereafter issued antidumpingduty orders. See Notice of Amended FinalDetermination of Sales at Less Than Fair Value andAntidumping Duty Order: Certain FrozenWarmwater Shrimp from Brazil, Thailand, India,the People’s Republic of China, the Socialist Republicof Vietnam, and Ecuador, 70 Fed. Reg. 5,143, 5,145,5,147, 5,149, 5,152, 5,156 (Feb. 1, 2005). Usingzeroing in its 2004 investigation, Commerce foundthat imports from each of the six countries werepervasively dumped into the U.S. market at pricesbelow fair value. See id.2

Erosion of the trade relief granted to the U.S.shrimp industry began with a 2007 WTO ruling for

2 Aside from ministerial corrections, Commerce

determined the dumping margins at the conclusion of its 2004investigation. See Notice of Final Determination of Sales at LessThan Fair Value: Certain Frozen and Canned WarmwaterShrimp From the People’s Republic of China and the SocialistRepublic of Vietnam, 69 Fed. Reg. 70,997, 71,005 (Dec. 8, 2004);Notice of Final Determination of Sales at Less Than Fair Value:Certain Frozen and Canned Warmwater Shrimp From Braziland Ecuador, 69 Fed. Reg. 76,910, 76,913 (Dec. 23, 2004);Notice of Final Determination of Sales at Less Than Fair Valueand Negative Final Determination of Critical Circumstances:Certain Frozen and Canned Warmwater Shrimp From Indiaand Thailand, 69 Fed. Reg. 76,916, 76,918 (Dec. 23, 2004).

Ecuador against the use of zeroing in investigations.See United States - Anti-Dumping Measure onShrimp from Ecuador, WT/DS335/R, Report of thePanel (Jan. 30, 2007). Commerce in responserecalculated, without zeroing, the dumping marginsassigned to Ecuadorian exporters in the 2004investigation. See Implementation of the Findings ofthe WTO Panel in United States AntidumpingMeasure on Shrimp from Ecuador: Notice ofDetermination Under section 129 of the UruguayRound Agreements Act and Revocation of theAntidumping Duty Order on Frozen WarmwaterShrimp from Ecuador, 72 Fed. Reg. 48,257 (Aug. 23,2007). "As a result of the recalculations, all of themargins [became] either zero or de minimis.’’3 Id. at48,258. Following its re-interpretation of the statute,Commerce found that shrimp from Ecuador was notsold at less than fair value and revoked theantidumping duty order on Ecuadorian shrimp in itsentirety, effective mid-August 2007. See id.

Attrition of the orders continued with a 2008WTO decision against zeroing in a challenge broughtby Thailand. See United States - Measures Relatingto Shrimp From Thailand, WT/DS343/R, Report ofthe Panel (Feb. 29, 2008). Once again, Commercerecalculated dumping margins from theinvestigations without zeroing. See Implementation

When an exporter’s weighted average dumping marginis less than two percent ad valorem, it is considered de minimisand that exporter is excluded from the antidumping duty order.See 19 U.S.C. §§ 1673b(b)(3), 1673d(a)(4).

of the Findings of the WTO Panel in United States--Antidumping Measure on Shrimp From Thailand:Notice of Determination Under Section 129 of theUruguay Round Agreements Act and PartialRevocation of the Antidumping Duty Order on FrozenWarmwater Shrimp From Thailand, 74 Fed. Reg.5,638 (Jan. 30, 2009). As a result of Commerce’s re-interpretation of its statutory obligations, exportsfrom two of the largest Thai exporters of shrimp tothe United States were found to have been made ator above fair value. See id. at 5,639. Effective mid-January 2009, imports from these two exporterswere excluded from the antidumping duty order onThai shrimp. See id.

B. The Vulnerable U.S. Shrimp IndustryWill Be Seriously Harmed If CommerceContinues To Recalculate InvestigationDumping Margins Without Zeroing

In its five-year review completed this year, theITC kept in place the antidumping duty orders onshrimp from the remaining five countries afterfinding that the domestic industry is vulnerable tofurther injury from dumped imports. See FrozenWarmwater Shrimp From Brazil, China, India,Thailand, and Vietnam, USITC Pub. 4221 (Mar.2011) ("ITC Review"), at 35-36. The ITC concluded"that revocation of the antidumping duty orders onfrozen warmwater shrimp from Brazil, China, India,Thailand, and Vietnam would be likely to lead tocontinuation or recurrence of material injury to the

domestic industry within a reasonably foreseeabletime." Id. at 36.

The ITC emphasized the initial arrest of thesubstantial increases in dumped imports followingthe implementation of the 2005 orders, as well asexisting market conditions rendering the U.S.shrimp industry vulnerable to further injury fromanother flood of dumped imports:

In light of the poor financialperformance the processors displayedthrough the period in review, theoperating losses the reportingfishermen recorded in 2009 and interim2010, and the declines in employmentand output both fishermen andprocessors experienced in interim 2010when the Gulf Oil Spill limited fishing,we conclude that the domestic industryis in a vulnerable condition.

Should the orders under review berevoked, we have found that the volumeof subject imports will likely increasesignificantly. We have further foundthat these additional volumes of subjectimports will be priced in a manner thatwill likely undersell the domestic likeproduct and have significant depressingor suppressing effects on prices for thedomestic like product. Consequently, tocompete with the likely additional

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volumes of subject imports, the domesticindustry will need to cut prices orrestrain price increases. The resultingloss of revenues will likely cause furtherdeterioration in the already poorfinancial performance of the vulnerabledomestic industry. Further deteriorationin financial performance will result inlikely losses of employment, and,ultimately, likely losses in output andmarket share.

Id. at 34-35 (emphasis added) (footnotes omitted).

There are two pending WTO challenges to theuse of zeroing in the investigation for theantidumping duty orders on shrimp. A decision isoverdue in the first-ever WTO dispute brought byVietnam. See United States - Anti-DumpingMeasures on Certain Shrimp from Viet Nam,WT/DS404/8, Communication from the Chairman ofthe Panel (Apr. 20, 2011). Earlier this year, Chinainitiated the WTO dispute settlement process toaddress the same issue. See United States - Anti-Dumping Measures on Certain Frozen WarmwaterShrimp from China, WT/DS422/1, Request forConsultations from China (Mar. 2, 2011). Based onthe prior WTO decisions and Commerce reactionsthereto, shrimp exporters in Vietnam and Chinamay similarly obtain exemptions from the orders.

The U.S. shrimp industry will be substantiallyharmed if United States Steel is not corrected. The

9

2005 orders are necessary to prevent continuedinjury from dumped imports. That relief hassteadily eroded through no fault of the industry, butbecause of Commerce changing course andmisconstruing the statute enacted by Congress,simply to appease the WTO. What remains isthreatened by the pending WTO challenges that areanticipated to further hollow out the trade remedy.Moreover, given the absence of a statute oflimitations at the WTO demonstrated by the recentChina filing, Brazil and India could still seek WTOrecourse. This would prompt Commerce torecalculate the margins initially assigned toBrazilian and Indian companies, without zeroing,potentially further eviscerating the antidumpingduty orders.

The Court can stop Commerce’s abdication ofits statutory responsibilities and ensure that thedomestic shrimp industry receives the trade relief towhich it is entitled by statute. By granting thePetitions and ruling that zeroing is mandated,Commerce would be required to adhere to thestatute. The Court has an opportunity to clarify thatonly Congress is authorized to amend the statute inresponse to WTO decision-making. Without suchjudicial intervention, a vulnerable domestic industrywill once again be exposed to a deluge of dumpedimports that previously led to financial ruin andunemployment. See ITC Investigation at 35; ITCReview at 34.

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II. THE U.S. LUMBER INDUSTRYHAS A STRONG INTEREST IN THECOURT GRANTING CERTIORARI

A. Zeroing In Investigations Has BeenImportant To The U.S. Lumber Industry

In the most recent round of trade litigationinvolving softwood lumber from Canada, each of thesix largest Canadian exporters investigated wasfound to be dumping. See Notice of FinalDetermination of Sales at Less Than Fair Value:Certain Softwood Lumber Products from Canada, 67Fed. Reg. 15,539, 15,541 (Apr. 2. 2002). Commerceused its then-standard practice of zeroing to assessthe magnitude of dumping. See id., Issues andDecisions Memorandum appended thereto("Investigation Memo"), at cmt. 12.

Commerce issued an antidumping duty orderin 2002. See Notice of Amended Final Determinationof Sales at Less Than Fair Value and AntidumpingDuty Order: Certain Softwood Lumber ProductsFrom Canada, 67 Fed. Reg. 36,068 (May 22, 2002).The Canadian exporters quickly requestedBinational Panel review under Chapter 19 of theNorth American Free Trade Agreement, U.S.-Can.-Mex., Dec. 17, 1992, 32 I.L.M. 683 (1993) ("NAFTA"),in lieu of judicial review by the U.S. Court ofInternational Trade ("CIT"), for issues that includedzeroing. See Certain Softwood Lumber FromCanada: Final Affirmative AntidumpingDetermination, NAFTA Secretariat File No. USA-

11

CDA-2002-1904-02, Decision of the Panel (July 17,2003) ("Panel Decision"). Binational Panels aresupposed to apply the same statutes, regulations,and U.S. case law that the CIT would use to assesswhether such final determinations are consistentwith U.S. antidumping law. See NAFTA art. 1904(2).By statute, the Binational Panel -- consisting ofpersons who are neither officers of the United Statesnor federal judges -- makes binding decisions of U.S.law.4 See 19 U.S.C. § 1516a(g).

The Binational Panel in 2003 initiallyupheld Commerce’s use of zeroing, consistent withbinding U.S. case law affirming the use of zeroing.See Panel Decision at 56-61. However, other issueswere remanded to Commerce with instructions forthe agency to change those determinations. See id. at185-88. While the Binational Panel review wasongoing, the Government of Canada simultaneouslybrought a WTO challenge to Commerce’s use ofzeroing in the lumber antidumping investigation. In2004, the WTO Appellate Body ruled that

The NAFTA Implementation Act establishes in U.S.law that an interested party to an antidumping proceeding canobtain review of a final determination by a Binational Panelconsisting of five members who are not judges, and of whichtwo or three of the members will be non-U.S, citizens. See 19U.S.C. § 1516a(g). These decisions are binding, must beimplemented by officers of the United States such as theSecretary of Commerce, and cannot be reviewed by any U.S.court. See id. § 1516a(g)(7). Although not germane to this case,the Binational Panel system and the U.S. laws implementing itare unconstitutional. See U.S. Const. art. II § 2 cl. 2.

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Commerce’s use of zeroing was inconsistent with theUnited States’ WTO obligations. See United States -Final Dumping Determination On Softwood LumberFrom Canada, WT/DS264/AB/R, Report of theAppellate Body (Aug. 11, 2004), at 61.

Armed with this WTO decision, the NAFTABinational Panel in 2005 reversed its zeroingdecision. See Certain Softwood Lumber FromCanada: Final Affirmative AntidumpingDetermination, NAFTA Secretariat File No. USA-CDA-2002-1904-02, Decision of the Panel FollowingRemand (June 9, 2005). The Binational Panel foundthat zeroing was now inconsistent with U.S. lawbased on the WTO decision and remanded the caseto Commerce to amend its final determination. Seeid. at 39-44. The Binational Panel further tried toenforce the WTO ruling on Commerceretrospectively, in spite of clear U.S. law to thecontrary.5 See id. at 45.

Commerce, faced with decisions from theWTO and a NAFTA Panel that it had improperlyused zeroing in the final determination, tried toapply zeroing in a way that would be acceptable to

5 U.S. law is very clear that WTO agreements do notcontrol or modify laws of the United States, and that WTOdispute settlement cannot compel the United States to changeits own laws. See 19 U.S.C. § 3512. Further, if the UnitedStates decides to comply with a WTO decision, such anamended final determination would only have prospectiveeffect. See id~ § 3538(b),(c).

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the WTO. In the investigation, Commerce used an"average-to-average" price comparison method, alongwith zeroing, to calculate the dumping margins. SeeInvestigation Memo at cmt. 12. When this methodwas ruled WTO-inconsistent (and then ruled not inaccordance with U.S. law by the Binational Panel),Commerce recalculated the dumping margins usinga different price comparison methodology, the"transaction-to-transaction" method, and again usedzeroing because the original WTO decision addressedonly zeroing in the average-to-average methodology.See Notice of Determination Under Section 129 of theUruguay Round Agreements Act: AntidumpingMeasures on Certain Softwood Lumber ProductsFrom Canada, 70 Fed. Reg. 22,636, 22,637 (May 2,2005).

The WTO Appellate Body in August 2006ruled that Commerce’s recalculated determinationwas inconsistent with the United States’ WTOobligations. See United States - Final DumpingDetermination On Softwood Lumber From Canada,Recourse to Article 21.5 of the DSU by Canada,WT/DS264/AB/RW, Report of the Appellate Body,(Aug. 15, 2006), at 59. However, both the WTO andNAFTA proceedings were thereafter settled whenthe 2006 Softwood Lumber Agreement went intoeffect on October 12, 2006. See Softwood LumberAgreement Between the Government of Canada andthe Government of the United States of America,U.S.-Can., Sept. 12, 2006 ("SLA").

14

The U.S. lumber industry’s experience withzeroing in antidumping investigations is consistentwith the experience of other domestic industries.Foreign governments have aggressively andsuccessfully challenged U.S. antidumpingdeterminations in an effort to eliminate zeroing frominvestigations. Yet federal courts must enforce U.S.law, not the rulings of unaccountable internationaltribunals creating obligations that the United Statesnever accepted. Unless the Court now clarifies thatCommerce’s prior longstanding position that thestatute mandates zeroing is the correctinterpretation, the agency will implement theseinternational tribunal rulings rather than theexpress will of Congress. If U.S. law is to be changedto reflect those rulings, only Congress -- notadministrative agencies -- may do so.

B. The U.S. Lumber Industry Will BenefitFrom Commerce Resuming Its Use OfZeroing In Investigations

Zeroing in investigations remains importantto the U.S. softwood lumber industry. Although theSLA has provided some stability to the U.S. lumbermarket in the face of continuing Canadiansubsidization of its lumber industry, the SLA isscheduled to expire in 2013. See SLA art. XVIII. Ifthe SLA is not extended or renewed, the Coalitionwould likely file petitions for trade relief under theTariff Act of 1930, which would likely result in a newantidumping investigation. Without zeroing used tocompute dumping margins, the Tariff Act of 1930

15

will provide a substantially lessened remedy againstthe dumping of foreign merchandise in the UnitedStates.

The livelihood of Americans reliant upon theU.S. softwood lumber industry would be adverselyaffected if United States Steel is not reviewed by theCourt. The American wood products and forestryindustries are critical elements of the U.S.manufacturing base and state economies. The U.S.sawmill and wood preservation industry employsclose to 90,000 workers across America. Accordingto the U.S. Department of Labor, this employmentrepresents an annual payroll income of close to $3billion which supports the economies of thousands ofcommunities nationwide. Commerce estimates thatan additional 270,000 American workers directlydepend on sawmills for employment. There are morethan 1,400 manufacturing facilities operating in thesawmill, wood product manufacturing, and woodpreservation sectors. Approximately 11 million U.S.private landowners, managing close to 650 millionacres of family-owned timberlands, provide themajority of the logs used by the lumber industry. Allof these owners and workers depend on a strongdomestic lumber industry that receives the fullextent of statutory trade relief that Congressintended to provide.

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CONCLUSION

For thePetitions, theCertiorari.

reasonsCourt

set forth herein and in theshould grant the Writ of

Respectfully submitted,

ANDREW W. KENTZ

JORDAN C. KAHN*

DAVID A. YOCIS

NATHANIEL M_AANDIG RICKARD

PICARD KENTZ & ROWE LLP1750 K Street, NW Suite1200Washington, DC 20006(202) 331-4040jkahn@pkrllp.com* Counsel of Record

DAVID A. BENTLEY

COALITION FOR FAIR

LUMBER IMPORTS

June 24,2011 Attorneys for Amici Curiae

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