United States Court of Appeals
for the Federal Circuit
__________________________
UNITED STATES STEEL CORPORATION,
Plaintiff-Appellant,
and
NUCOR CORPORATION,
Plaintiff-Appellant,
and
GALLATIN STEEL COMPANY, SSAB NORTH
AMERICAN DIVISION, STEEL DYNAMICS, INC.,
AND ARCELORMITTAL USA, INC.
Plaintiffs,
v.
UNITED STATES,
Defendant-Appellee,
and
CORUS STAAL BV,
Defendant-Appellee.
__________________________
2009-1572, -1573
__________________________
Appeal from the United States Court of International
Trade in Consolidated Case No. 07-00170, Judge Judith
M. Barzilay.
____________________________
Decided: October 4, 2010
US STEEL CORP v. US 2
____________________________
JEFFREY D. GERRISH, Skadden, Arps, Slate, Meagher
& Flom LLP, of Washington, DC, argued for plaintiff-
appellant United States Steel Corporation. With him on
the brief were ROBERT E. LIGHTHIZER, ELLEN J.
SCHNEIDER and LUKE A. MEISNER. Of counsel was JAMES
C. HECHT.
TIMOTHY C. BRIGHTBILL, Wiley Rein LLP, of Washing-
ton, DC, argued for plaintiff-appellant Nucor Corporation.
With him on the brief were ALAN H. PRICE and MAUREEN
E. THORSON.
CLAUDIA BURKE, Senior Trial Attorney, Commercial
Litigation Branch, Civil Division, United States Depart-
ment of Justice, of Washington, DC, argued for defendant-
appellee United States. With her on the brief were TONY
WEST, Assistant Attorney General, JEANNE E. DAVIDSON,
Director, and PATRICIA M. MCCARTHY, Assistant Director.
Of counsel on the brief was SAPNA SHARMA, Office of the
Chief Counsel for Import Administration, United States
Department of Commerce, of Washington, DC.
JAMIE B. BEABER, Steptoe & Johnson LLP, of Wash-
ington, DC, argued for defendant-appellee Corus Staal
BV. With him on the brief were JOEL D. KAUFMAN and
ALICE A. KIPEL. Of counsel was RICHARD O. CUNNINGHAM.
__________________________
Before LOURIE, LINN, and DYK, Circuit Judges.
LOURIE, Circuit Judge.
United States Steel Corp. (“U.S. Steel”) and Nucor
Corp. (“Nucor” and collectively “Appellants”) appeal from
3 US STEEL CORP v. US
the decision of the United States Court of International
Trade upholding the Department of Commerce’s (“Com-
merce’s”) determination of antidumping duties against
Corus Staal (“Corus”) for imports of hot-rolled carbon
steel flat products from the Netherlands. U.S. Steel Corp.
v. United States, 637 F. Supp. 2d 1199 (Ct. Int’l Trade
2009) (“U.S. Steel”).
Because the Court of International Trade properly
found that Commerce’s interpretation of its governing
statute is in accordance with law, we affirm.
BACKGROUND
Under the antidumping statute, Commerce imposes
duties on imported merchandise that “is being, or is likely
to be, sold in the United States at less than fair value”
and harms domestic industry. 19 U.S.C. § 1673. Sales at
less than fair value are those sales for which the “normal
value” (the price a producer charges in its home market)
exceeds the “export price” (the price of the product in the
United States) or “constructed export price.” Id. §
1677(35)(A). 1 Commerce then calculates a “dumping
margin” for a particular product subject to review, equal
to “the amount by which the normal value exceeds the
export price or constructed export price.” Id.; see also
Koyo Seiko Co. v. United States, 258 F.3d 1340, 1342 (Fed.
Cir. 2001). A “weighted average dumping margin” across
the products is calculated by “dividing the aggregate
1 Commerce uses a constructed export price if “be-
fore or after the time of importation, the first sale to an
unaffiliated person is made by (or for the account of) the
producer or exporter or by a seller in the United States
who is affiliated with the producer or exporter.” Uruguay
Round Agreements Act, Statement of Administrative
Action, H.R. Doc. No. 103-826, at 822 (1994), reprinted in
1994 U.S.C.C.A.N. 4040 (“SAA”).
US STEEL CORP v. US 4
dumping margins . . . by the aggregate export prices . . . of
such exporter or producer.” 19 U.S.C. § 1677(35)(B).
In November 2001, Commerce issued an antidumping
duty order against Corus imposing a dumping margin of
2.59%. Certain Hot-Rolled Carbon Steel Flat Products
from the Netherlands, 66 Fed. Reg. 59,565 (Dep’t Com-
merce Nov. 29, 2001) (amended final determination of
sales at less than fair value). In determining the dump-
ing margin, Commerce adhered to its existing practice at
the time of “zeroing,” by which Commerce assigns a value
of zero to sales margins of merchandise sold at or above
fair value prices. See Corus Staal BV v. Dep’t of Com-
merce, 395 F.3d 1343, 1345-46 (Fed. Cir. 2005). Thus,
“dumping margins for sales below normal value are not
offset by ‘negative dumping margins’ for those sales made
above normal value.” Corus Staal BV v. United States,
502 F.3d 1370, 1372 (Fed. Cir. 2007). Commerce’s zeroing
methodology had earlier been challenged and upheld as a
reasonable interpretation of the antidumping statute. See
id.; Timken Co. v. United States, 354 F.3d 1334, 1342
(Fed. Cir. 2004) (upholding zeroing in the context of an
administrative review); see also Serampore Indus. v. U.S.
Dep’t Commerce, 675 F. Supp. 1354, 1360-61 (Ct. Int’l
Trade 1987); Bowe Passat Reinigungs-Und Waschere-
itechnik GmbH v. United States, 926 F. Supp. 1138, 1150
(Ct. Int’l Trade 1996).
However, the U.S. practice of zeroing—both as a gen-
eral methodology and as applied in specific investigations,
including the investigation underlying this appeal—was
successfully challenged by the European Communities
before the World Trade Organization’s (“WTO’s”) Dispute
Settlement Body. Panel Report, United States – Laws,
Regulations and Methodology for Calculating Dumping
Margins (“Zeroing”), WT/DS294/R (October 31, 2005), and
the challenge was subsequently upheld by that organiza-
5 US STEEL CORP v. US
tion’s Appellate Body, United States – Laws, Regulations
and Methodology for Calculating Dumping Margins
(“Zeroing”), WT/DS294/R (May 15, 2006) (upholding the
Dispute Settlement Panel’s finding that the United States
acted inconsistently with Article 9.3 of the Anti-Dumping
Agreement and Article VI:2 of the General Agreement on
Tariffs and Trade 1994). The investigation of hot-rolled
steel from the Netherlands was one of the 15 investiga-
tions challenged.
Commerce responded to the adverse WTO ruling that
zeroing is inconsistent with United States obligations
under the Antidumping Duty Agreement according to two
administrative procedures, laid out in the Uruguay Round
Agreements Act (“URAA”). See 19 U.S.C. § 3533 (“Section
123”) and 19 U.S.C. § 3538 (“Section 129”). Section 123
provides, in relevant part, that
Promptly after the circulation of a report of a panel or
of the Appellate Body to WTO members in a proceed-
ing described in subsection (d) of this section, the
Trade Representative shall--
(1) notify the appropriate congressional committees of
the report;
(2) in the case of a report of a panel, consult with the
appropriate congressional committees concerning the
nature of any appeal that may be taken of the report;
and
(3) if the report is adverse to the United States, con-
sult with the appropriate congressional committees
concerning whether to implement the report's rec-
ommendation and, if so, the manner of such imple-
mentation and the period of time needed for such
implementation.
US STEEL CORP v. US 6
19 U.S.C. § 3533(f). The statute continues by listing
the requirements for agency action:
In any case in which a dispute settlement panel or
the Appellate Body finds in its report that a regula-
tion or practice of a department or agency of the
United States is inconsistent with any of the Uruguay
Round Agreements, that regulation or practice may
not be amended, rescinded, or otherwise modified in
the implementation of such report unless and until--
...
(D) the Trade Representative has submitted to the
appropriate congressional committees a report de-
scribing the proposed modification, the reasons for
the modification, and a summary of the advice ob-
tained under subparagraph (B) with respect to the
modification;
(E) the Trade Representative and the head of the
relevant department or agency have consulted with
the appropriate congressional committees on the pro-
posed contents of the final rule or other modification .
...
19 U.S.C. § 3533(g).
Section 123 describes how Commerce and the United
States Trade Representative are to implement an adverse
report from the WTO. Pursuant to Section 123, the
United States Trade Representative consulted with
appropriate Congressional committees and private sector
committees, and Commerce provided for public comment
before determining whether and how to change its prac-
tice. Following those consultations, Commerce deter-
mined that it would cease its zeroing practice in new and
pending investigations using average-to-average compari-
7 US STEEL CORP v. US
son methodology. See Antidumping Proceedings: Calcula-
tion of the Weighted Average Dumping Margin During an
Antidumping Duty Investigation; Final Modification, 71
Fed. Reg. 77, 722 (Dec. 27, 2006) (“Section 123 Determi-
nation”). 2 Instead, Commerce determined to use a meth-
odology of “offsetting,” pursuant to which sales made at
less than fair value are offset by those made above fair
value. This means that some of the dumping margins
used to calculate a weighted-average dumping margin
will be negative.
The other relevant statutory section, section 129, pro-
vides in relevant part as follows:
Promptly after a report by a dispute settlement panel
or the Appellate Body is issued that contains findings
that an action by the administering authority in a
proceeding under title VII of the Tariff Act of 1930. . .
is not in conformity with the obligations of the United
States under the Antidumping Agreement. . ., the
Trade Representative shall consult with the adminis-
tering authority and the congressional committees on
the matter.
(2) Determination by administering authority
Notwithstanding any provision of the Tariff Act of
1930 . . ., the administering authority shall, within
180 days after receipt of a written request from the
Trade Representative, issue a determination in con-
nection with the particular proceeding that would
render the administering authority's action described
2 The difference between average-to-average com-
parisons and other methodologies is discussed in the
section II, infra. Commerce did not adopt changes to its
comparison methodologies used in other segments of an
antidumping proceeding. See 71 Fed. Reg. at 77, 724.
US STEEL CORP v. US 8
in paragraph (1) not inconsistent with the findings of
the panel or the Appellate Body.
(3) Consultations before implementation
Before the administering authority implements any
determination under paragraph (2), the Trade Repre-
sentative shall consult with the administering au-
thority and the congressional committees with
respect to such determination.
(4) Implementation of determination
The Trade Representative may, after consulting with
the administering authority and the congressional
committees under paragraph (3), direct the adminis-
tering authority to implement, in whole or in part,
the determination made under paragraph (2).
19 U.S.C. § 3538(b).
Section 129 applies to specific administrative deter-
minations that are the subject of a WTO dispute. Pursu-
ant to Section 129, following an adverse WTO ruling on
particular investigations, the United States Trade Repre-
sentative must consult with Commerce and with Con-
gress, after which it may instruct Commerce to issue a
new decision “not inconsistent with the findings of the
[WTO].” 19 U.S.C. § 3538(b)(2). Here, pursuant to
Section 129, Commerce applied its new methodology to
the investigation of hot-rolled steel from the Netherlands.
Under its offsetting methodology, Commerce found that
the resulting dumping margin was de minimis. As a
result, Commerce announced that it would revoke the
antidumping duty order in that investigation. Implemen-
tation of the Findings of the WTO Panel in US-Zeroing
(EC): Notice of Determinations Under Section 129 of the
Uruguay Round Agreements Act and Revocations and
9 US STEEL CORP v. US
Partial Revocations of Certain Antidumping Duty Orders,
72 Fed. Reg. 25,261, 25,264 (Dep’t of Commerce May 4,
2007) (“Section 129 Determination”).
Four separate actions were filed at the Court of Inter-
national Trade, challenging Commerce’s determinations.
The actions were consolidated, and the challenges brought
pursuant to section 123 were dismissed for lack of juris-
diction. U.S. Steel Corp. v. United States, 627 F. Supp. 2d
1374, 1381-82 (Ct. Int’l Trade 2009). The court based its
dismissal on its finding that adequate relief was available
from its review of the section 129 determinations, for
which jurisdiction derived from 28 U.S.C. § 1581(c); as a
result, jurisdiction pursuant to section 1581(i) could not
lie, as that section denies jurisdiction for actions that may
be brought under the other subsections of § 1581 unless
the alternative relief would be manifestly inadequate. Id.
In its analysis of the consolidated challenge to the §
129 determinations, the Court of International Trade
upheld Commerce’s determinations, concluding that they
were in accordance with law. U.S. Steel, 637 F. Supp. 2d
at 1214. In so holding, the court first stated that settled
precedent established that Congress had not clearly
spoken to the question of zeroing in the antidumping
statute, either by requiring Commerce to make a “fair
comparison . . . between the export price or constructed
export price and normal value” under 19 U.S.C. §
1677b(a), or by its definitions of dumping margins as “the
amount by which the normal value exceeds the export
price or constructed export price of the subject merchan-
dise” and weighted average dumping margins as a calcu-
lation “dividing the aggregate dumping margins . . . by
the aggregate export prices and constructed export
prices,” under § 1677(35)(A) and (B). Id. at 1210-11
(citing Timken, 354 F.3d at 1341-43, inter alia). The court
found that “the language in §§ 1673c(b)(2), 1673c(c), and
US STEEL CORP v. US 10
1677f-1(d) does not clarify Congress’s intent on the issue.”
Id. Therefore, the court proceeded to an analysis of
whether Commerce’s methodology encompassed a reason-
able interpretation of the statute, pursuant to Chevron,
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S.
837 (1984).
The Court of International Trade upheld as reason-
able Commerce’s interpretation of the statute to use
offsetting in average-to-average comparisons of original
investigations. U.S. Steel, 637 F. Supp. 2d at 1212-13.
The court found that Commerce’s determination was the
“result of [] a careful balancing act, whereby the Execu-
tive Branch sought to facilitate collegial international
trade relationships while continuing to afford domestic
industries the protection they need to compete when
unfairly traded merchandise is present in the market-
place.” Id. at 1213. The court noted the process Com-
merce undertook, whereby it “solicited, received, and
considered comments from members of the international
trade community . . . and followed the agency’s regular
practice and procedure in so doing.” Id. Commerce’s use
of offsetting, according to the court, fits with the principal
purpose of the antidumping laws, “to protect domestic
industries from foreign manufactured goods that are sold
with injurious effect in the U.S. at prices below the fair
market value of those goods . . .” without “giv[ing] an
unfair advantage to the domestic industry.” Id. (internal
quotations omitted). The court continued, suggesting that
the offsetting methodology might indeed be fairer than a
zeroing methodology, as offsetting methodology requires
Commerce to “consider the market as a whole when
engaging in its statutorily assigned duty of determining
whether dumping has occurred in the domestic industry
at issue.” Id. at 1213-14.
11 US STEEL CORP v. US
The Court of International Trade noted that Com-
merce’s newly-implemented methodology was limited to
average-to-average comparisons—those situations where
U.S. sales of a particular class of product are grouped
together before being compared with home market sales,
similarly grouped together. Id. at 1214. The clear indica-
tion is that the agency likely will continue to use zeroing
methodology for individual-to-individual transaction
comparisons, made pursuant to § 1677f-1(d)(1)(A)(ii), or
for weighted average-to-individual transaction compari-
sons aimed at counteracting targeted dumping, pursuant
to § 1677f-1(d)(1)(B). Thus, the court reasoned, Com-
merce’s interpretation does not render §§ 1673c(b)(2),
1673c(c), and 1677f-1(d) meaningless. Id. at 1215.
The government timely appealed. We have jurisdic-
tion pursuant to 28 U.S.C. § 1295(a)(5).
DISCUSSION
We review the decision of the Court of International
Trade de novo, “apply[ing] anew the same standard used
by the court, and [we] will uphold Commerce’s determina-
tion unless it is unsupported by substantial evidence on
the record, or otherwise not in accordance with law.”
Mittal Steel Point Lisas Ltd. v. United States, 548 F.3d
1375, 1380 (Fed. Cir. 2008) (citation and internal quota-
tion marks omitted). Substantial evidence is “such rele-
vant evidence as a reasonable mind might accept as
adequate to support a conclusion.” Universal Camera
Corp. v. NLRB, 340 U.S. 474, 477 (1951). The court must,
as we do, defer to Commerce’s reasonable construction of
its governing statute where Congress “leaves a gap in the
construction of the statute that the administrative agency
is explicitly authorized to fill or implicitly delegates
legislative authority, as evidenced by ‘the agency’s gener-
ally conferred authority and other statutory circum-
US STEEL CORP v. US 12
stances.’” Cathedral Candle Co. v. U.S. Int’l Trade
Comm’n, 400 F.3d 1352, 1361 (Fed. Cir. 2005) (quoting
United States v. Mead Corp., 533 U.S. 218, 229 (2001)).
In order to effectuate review of the reasonableness of
agency action, “[c]ourts look for a reasoned analysis or
explanation for an agency’s decision as a way to deter-
mine whether a particular decision is arbitrary, capri-
cious, or an abuse of discretion.” Wheatland Tube Co. v.
United States, 161 F.3d 1365, 1369 (Fed. Cir. 1998).
Because the Court of International Trade correctly con-
cluded that Commerce, engaged in its gap-filling role,
implemented a reasonable methodology of determining
dumping margins, we affirm.
I.
As a preliminary matter, Corus raises a jurisdictional
argument, suggesting that the Court of International
Trade improperly entertained claims challenging Com-
merce’s Section 123 Determination. Corus then argues
that any affirmance of the court’s decision should be
without reference to the Section 123 Determination.
Corus relies on the Court of International Trade’s juris-
dictional statute, 28 U.S.C. § 1581(c), which allows it to
hear actions brought under 19 U.S.C. § 1516a. That
section provides for review of Section 129 determinations,
but not Section 123 determinations, according to Corus.
Corus further argues that the Section 123 Determination
was not at issue in this case, because it announced a
policy to be applied to future investigations and reviews
in addition to those then pending. However, the investi-
gations specifically challenged before the WTO were
already complete, and, as such, were only challenged in
the context of Section 129 proceedings. As a result, Corus
argues, the court erred in hearing U.S. Steel’s challenge
to the offsetting methodology announced in its Section
123 Determination.
13 US STEEL CORP v. US
The government’s position is that the Court of Inter-
national Trade correctly found that it has jurisdiction only
under 28 U.S.C. § 1581(c), and thus could only review the
Section 129 Determination, not the Section 123 Determi-
nation. The government contends that the court only
discussed the substance of the Section 123 Determination
in the context of the application of its announced method-
ology to the Section 129 Determination. As a result, the
government maintains that the court exercised its juris-
diction correctly.
Appellants argue in their reply briefs that we may
properly consider whether the Section 123 Determination
is unlawful on its face, because the Section 123 Determi-
nation was applied to the Section 129 Determination at
issue here.
We conclude that the Court of International Trade
properly exercised its jurisdiction in this case, pursuant to
28 U.S.C. § 1581(c). Appellants correctly point out that
the issues and decision memorandum accompanying the
Section 129 Determination states that Commerce is
“conducting ‘Section 129 Determinations’ with respect to
twelve different antidumping investigations . . . and
applying the [Section 123 Determination] to those pro-
ceedings.” J.A. 805. We agree with the government’s
reading of the court’s decision. To begin with, the court
dismissed the cases directly challenging the Section 123
Determination, having found that alternative adequate
relief was available in the current action challenging the
Section 129 Determination. U.S. Steel Corp., 627 F. Supp.
2d at 1381-82. In addition, the court discussed the Sec-
tion 123 Determination only in the context of its applica-
tion to the Section 129 Determination. In particular, the
court looked to Commerce’s explanation and reasoning for
its Section 123 Determination in making its determina-
tion as to the reasonableness of its interpretation as
US STEEL CORP v. US 14
implemented in the Section 129 proceeding. The court
was thus correct in finding jurisdiction over the Section
129 claim, and it exercised that jurisdiction properly.
II.
We turn now to the substance of the case. Nucor ar-
gues that the antidumping statute is unambiguous and
requires that Commerce use a zeroing methodology.
Nucor argues that the Timken court erred in finding that
the term “exceeds” is ambiguous; therefore, it argues, a
dumping margin, as defined by 19 U.S.C. § 1677(35)(A),
must have a positive value. In support of that view,
Nucor notes that the term “exceeds” is used elsewhere in
the Tariff Act to mean that one thing is greater than
another, rather than indicating the difference between the
two. In addition, Nucor argues that the term is not
ambiguous, that lexicographical sources confirm that it is
not ambiguous, and that the Timken court’s decision was
logically flawed. As a result, Nucor suggests that this
court should revisit Timken, recognizing that any such
reconsideration would have to be en banc.
Both Nucor and U.S. Steel argue that 19 U.S.C.
§ 1677f-1(d) indicates Congress’s clear intent that Com-
merce implement a zeroing methodology, although the
bases for their arguments differ slightly from each other.
Section 1677f-1(d) describes how Commerce is to deter-
mine a weighted average dumping margin. Section 1677f-
1(d)(1)(A) prescribes use of average-to-average compari-
sons and individual-to-individual transaction comparisons
in normal investigations. 3 In addition, the statute pro-
3 The Statement of Administrative Action that ac-
companied the Uruguay Round Agreements Act explained
that individual-to-individual transaction comparisons
were intended for situations in which “there are very few
sales and the merchandise sold in each market is identi-
15 US STEEL CORP v. US
vides for an exception under which Commerce may use
average-to-individual transaction comparisons in situa-
tions where Commerce finds targeted dumping (situations
where comparable merchandise “differ[s] significantly
among purchasers, regions, or periods of time”). 19 U.S.C.
§ 1677f-1(d)(1)(B).
U.S. Steel argues the average-to-average and average-
to-individual methodologies are meant for different situa-
tions. However, absent zeroing, both methodologies result
in identical dumping margins. As a result, U.S. Steel
argues, the provisions of § 1677f-1(d) are rendered mean-
ingless by an interpretation that does not require zeroing,
making clear that Congress intended the use of zeroing.
Both Appellants rely on the negotiating history of the
General Agreement on Tariffs and Trade Multilateral
Trade Negotiations for the Uruguay Round, which led to
the enactment of the URAA. Under the 1930 Tariff Act,
Commerce developed a practice of comparing weighted
average normal values to individual U.S. transaction
prices—or an average-to-individual transaction methodol-
ogy—to determine dumping margins. The United States
attempted to retain its average-to-individual transaction
methodology during the Uruguay Round negotiations, but
ultimately agreed to use of that methodology only for
situations of targeted dumping (as laid out in the excep-
tion in 19 U.S.C. § 1677f-1(d)(1)(B)). The Statement of
Administrative Action accordingly specified that as a
“departure from current U.S. law,” Commerce should now
generally use average-to-average comparisons. SAA at
810, 842-43, reprinted in 1994 U.S.C.C.A.N. at 4153,
4178. This, according to U.S. Steel, underscores its ar-
cal . . . .” Statement of Administrative Action Accompany-
ing the URAA, H.R. Rep. No. 403-316, 842, reprinted in
1994 U.S.C.C.A.N. 4040, 4178.
US STEEL CORP v. US 16
gument that Congress intended the different methodolo-
gies to be used in different situations, with the clear
implication that Congress intended the results to be
different under those different methodologies. This clear
intent for different results under different methodologies,
U.S. Steel argues, results in the statute clearly requiring
zeroing.
Nucor, in contrast, compares the pre-URAA method-
ology with the post-URAA methodology, rather than
comparing the different subsections of § 1677f-1(d).
Nucor argues that because Congress believed it was
changing Commerce’s practice by implementing the
URAA, and because, without zeroing, the pre-URAA and
post-URAA dumping margins would be equal, Congress
clearly intended to require zeroing in post-URAA investi-
gations. Both Appellants argue that previous courts have
not addressed arguments that § 1677f-1(d) requires
zeroing and that we should do so now.
Appellants also respond to an argument by Corus sug-
gesting that Congressional intent to use offsetting meth-
odology may be inferred from the Congressional
consultation process undertaken pursuant to Sections 123
and 129. Appellants argue that the Congressional role in
those consultations is merely advisory, and does not
indicate the intent of the entire Congress.
Lastly, Appellants argue that Commerce’s actions in
implementing an adverse WTO Panel decision must be
consistent with U.S. law. Based on its argument that
§ 1677f-1(d) requires zeroing methodology, U.S. Steel asks
the court to conclude that Commerce’s actions are incon-
sistent with U.S. law.
In response, the government argues that the Court of
International Trade correctly followed Timken and Corus,
which together establish unequivocally that Commerce
17 US STEEL CORP v. US
was neither required to use nor prohibited from using
zeroing methodology by its governing statute. The gov-
ernment notes that neither of the Appellants argues that
Commerce’s determination not to use zeroing was unrea-
sonable. Nevertheless, the government explains why its
determination not to use zeroing was reasonable. The
Section 129 Determination, the government explains, is a
reflection of the political branches’ carefully tailored
response to an adverse WTO report. The response, pur-
suant to Section 123 and Section 129, included solicitation
of public and private sector views on possible responses,
followed by a request to Commerce from the United
States Trade Representative to take action not inconsis-
tent with the WTO ruling. The government notes that
through those consultations, Congress gave “tacit ap-
proval” to the new methodology. Thus, the government
argues, its statutory interpretation is reasonable and this
court should affirm the Court of International Trade if we
determine, as we have before, that the statute is ambigu-
ous.
In response to Appellants’ section 1677f-1(d) argu-
ments, the government notes that we have already con-
sidered and rejected U.S. Steel’s argument, which it
unsuccessfully argued in Corus. Substantively, the gov-
ernment responds to U.S. Steel’s § 1677f-1(d) argument
by explaining that Commerce continues to use zeroing in
other types of investigations and reviews using methodol-
ogy other than average-to-average comparisons. In
addition, the government notes that Commerce continues
to use zeroing in targeted dumping analyses under §
1677f-1(d)(B). As a result, the outcomes under different
subsections of § 1677f-1(d) are indeed different.
Corus argues that well-established precedent makes
clear that the statute is ambiguous and that Appellants’
arguments, including their § 1677f-1(d) arguments, have
US STEEL CORP v. US 18
been refuted multiple times. Corus further argues that
the consultations of the United States Trade Representa-
tive, Commerce, and Congress prior to implementing its
determinations demonstrate clear Congressional intent
that the adverse WTO rulings be implemented.
We turn to the language of the statute to begin our
analysis, according to which “[t]he terms ‘dumped’ and
‘dumping’ refer to the sale or likely sale of goods at less
than fair value.” 19 U.S.C. § 1677(34). Commerce calcu-
lates a dumping margin for a particular product subject to
review, defined as “the amount by which the normal value
exceeds the export price or constructed export price of the
subject merchandise.” Id. at § 1677(35)(A). A “weighted
average dumping margin” across the products is “the
percentage determined by dividing the aggregate dump-
ing margins determined for a specific exporter or producer
by the aggregate export prices and constructed export
prices of such exporter or producer.” Id. at § 1677(35)(B).
The issue Appellants ask us to revisit, both generally and
in light of § 1677f-1(d), is whether a weighted average
dumping margin may include negative numbers in its
aggregation of dumping margins.
We agree with the government that the Section 129
Determination reflects Commerce’s reasonable interpreta-
tion of an ambiguous statute. Our analysis proceeds
under the two-part test explained in Chevron, U.S.A., Inc.
v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984). At
issue here is the first step of Chevron, which requires a
court to determine “whether Congress has directly spoken
to the precise question at issue.” Id. at 842. If so, that
would be the end of the inquiry; however, “if the statute is
silent or ambiguous with respect to the specific issue,” the
court determines if the agency’s construction of the stat-
ute is permissible. Id. at 843. As explained below, we
conclude that none of the cited statutory provisions
19 US STEEL CORP v. US
speaks to the precise issue of zeroing—or offsetting—
methodology. Rather, the statute is silent as to the meth-
odology to be employed in situations of negative dumping
margins.
Our case law has repeatedly examined the antidump-
ing statute and found it to be “silent or ambiguous” as to
zeroing methodology. In Timken, we upheld Commerce’s
use of zeroing methodology in administrative reviews.
Timken, 354 F.3d 1334. 4 We “recogniz[ed] this as a close
question,” and found that dictionary definitions of the
term “exceeds” were not “so clear as to compel a finding
that Congress expressly intended to require zeroing.” Id.
at 1341. We determined that the language of
§1677(35)(A) does not prohibit the calculation of a nega-
tive margin. Id. at 1342. Because the statute does not
speak directly to negative-value dumping margins, we
declined to find a clear and unambiguous Congressional
intent that Commerce use zeroing methodology. Id. In
finding that use of zeroing methodology in administrative
reviews was a reasonable interpretation of the statute, we
noted, inter alia, two opinions of the Court of Interna-
tional Trade that found zeroing to be useful for “com-
bat[ing] the problem of masked dumping, wherein certain
profitable sales serve to ‘mask’ sales at less than fair
value.” Id. at 1343 (citing Serampore, 675 F. Supp. at
1360-61; Bowe Passat, 926 F. Supp. at 1150). In Corus,
we extended Timken and concluded that Commerce’s
application of zeroing methodology to original investiga-
tions was a reasonable interpretation of the statute.
Corus, 395 F.3d at 1347. We disagreed with Corus’s
4 In that context, Commerce was comparing
weighted-average normal values to transaction-specific
export prices pursuant to 19 U.S.C. § 1675(a)(2)(A)(ii),
which governs administrative reviews. See Timken Co. v.
United States, 240 F. Supp. 2d 1228 (Ct. Int’l Trade 2002).
US STEEL CORP v. US 20
argument in that case that 19 U.S.C. § 1677f-1(d)(1)(A)(i)
showed a clear Congressional intent that offsetting,
rather than zeroing, methodology be used by requiring the
comparison of a weighted average dumping margin and
signaling, by use of the word “average,” that negative
values were to be included. Id. We declined to draw such
a distinction, finding that the ambiguity of the statute
was not dependent on the type of review being conducted,
as the terms at issue were those in § 1677(35)(A) and
were not dependent on the type of review. Id.
We are bound by our previous decisions in Timken
and Corus, which held that § 1677(35)(A) does not unam-
biguously preclude—or require—Commerce to use zeroing
methodology. See Texas Am. Oil Corp. v. U.S. Dep’t of
Energy, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en banc)
(“This court applies the rule that earlier decisions prevail
unless overruled by the court en banc, or by other control-
ling authority such as intervening statutory change or
Supreme Court decision.”). Moreover, we agree with
those decisions. The statute defines a dumping margin as
“the amount by which the normal value exceeds the
export price or constructed export price of the subject
merchandise,” 19 U.S.C. § 1677(35)(A), and subsequently
requires Commerce to use this amount in calculating a
weighted-average dumping margin, id. § 1677(35)(B).
However, the statute is silent as to what to do when the
“amount” calculated by Commerce pursuant to
§ 1677(35)(A) is negative. Congress has given Commerce
discretion in forming its methodology in antidumping
investigations, and where the statutory language does not
address the methodology at issue, we decline to conclude
that Congress has manifested its unambiguous intent.
We find it important to note that although the processes
undertaken pursuant to Sections 123 and 129 included
input from Congressional committees, this later involve-
21 US STEEL CORP v. US
ment in Commerce’s methodology cannot constitute an
indication of Congressional intent, nunc pro tunc. Were
we to find a clear Congressional intent in the language of
the statute to mandate zeroing methodology, the acquies-
cence of Congressional committees now to the new deter-
minations would not serve to negate it. Nevertheless, we
have found no such clear intent.
Nor are Appellants’ “new” arguments regarding §
1677f-1(d) persuasive. To begin with, the arguments were
raised by U.S. Steel, but not found persuasive or explicitly
addressed by us in Timken and Corus. Appellants’ argu-
ments do not convince us that § 1677f-1(d) constitutes a
clear Congressional instruction to use zeroing methodol-
ogy.
Section 1677f-1(d) describes how to determine a
weighted average dumping margin, providing that Com-
merce
shall determine whether the subject merchandise is
being sold in the United States at less than fair
value--
(i) by comparing the weighted average of the normal
values to the weighted average of the export prices
(and constructed export prices) for comparable mer-
chandise, or
(ii) by comparing the normal values of individual
transactions to the export prices (or constructed export
prices) of individual transactions for comparable mer-
chandise.
19 U.S.C. § 1677f-1(d)(1)(A) (emphases added). Thus,
these subsections describe average-to-average compari-
sons and individual-to-individual transaction comparisons
US STEEL CORP v. US 22
in normal investigations. In addition, the statute pro-
vides for an exception, under which Commerce
may determine whether the subject merchandise is
being sold in the United States at less than fair value
by comparing the weighted average of the normal val-
ues to the export prices (or constructed export prices)
of individual transactions for comparable merchan-
dise, if--
(i) there is a pattern of export prices (or constructed
export prices) for comparable merchandise that differ
significantly among purchasers, regions, or periods of
time, and
(ii) the administering authority explains why such
differences cannot be taken into account using a
method described in paragraph (1)(A)(i) or (ii).
Id. § 1677f-1(d)(1)(B) (emphases added). Thus, Commerce
is able to use an average-to-individual transaction com-
parison in situations of targeted dumping. Even if we
accept, arguendo, U.S. Steel’s argument that if offsetting
methodology is used in two of the comparison methods
(average-to-average and average-to-individual transac-
tion), the results are likely to be the same, 5 § 1677f-1(d)
still cannot be said to require zeroing methodology.
5 Corus referenced its prior responses to U.S. Steel’s
§ 1677f-1(d) arguments in prior cases in its briefing and
oral argument, suggesting that the results might not be
the same under the different comparison methods, based
on the use of different time periods for average-to-
individual transaction methodology in comparison with
the other methodologies.
23 US STEEL CORP v. US
Section 1677f-1(d) was enacted as part of the URAA in
1994, at a time when zeroing methodology was Com-
merce’s standard practice. See, e.g., Serampore, 675 F.
Supp. 1354. It is reasonable, then, to assume that Con-
gress was aware of Commerce’s chosen methodology at
the time of enactment. However, a Congressional as-
sumption that Commerce will continue to implement a
particular methodology is not a clear Congressional
instruction that Commerce must continue to use that
methodology. Section 1677f-1(d) does not speak to the
question of zeroing such that a clear Congressional intent
is discernable. Although Congress may have assumed
that Commerce would continue its zeroing methodology,
and its assumption may underlie the enumeration of
different calculation methodologies in § 1677f-1(d), Com-
merce’s choice of methodology remains a “gap” in the
statute that Congress has chosen not to fill by dictating a
particular methodology. See, e.g., Koyo Seiko Co., Ltd. v.
United States, 66 F.3d 1204, 1209 (Fed. Cir. 1995).
Similarly, Corus’s argument that Congress must have
meant for § 1677f-1(d) to effect a change in Commerce’s
calculation of dumping margins does not necessitate a
conclusion that Congress intended to direct Commerce to
continue its zeroing methodology indefinitely. Congress
certainly could have given such instructions; however, it
did not. The SAA’s assertion that § 1677f-1(d) is a “depar-
ture from current U.S. law,” SAA at 810, 842-43, reprinted
in 1994 U.S.C.C.A.N. at 4153, 4178, does not give a clear
indication of Congressional intent as to zeroing methodol-
ogy either, but is rather an expression of its implementa-
tion of various negotiated-for changes in the statute. In
addition, the exception contained in §1677f-1(d)(1)(B)
indicates that Congress gave Commerce a tool for combat-
ing targeted or masked dumping by allowing Commerce
to compare weighted average normal value to individual
US STEEL CORP v. US 24
transaction values when there is a pattern of prices that
differs significantly among purchasers, regions, or periods
of time. 19 U.S.C. § 1677f-1(d)(1)(B). Commerce has
indicated that it likely intends to continue its zeroing
methodology in those situations, thus alleviating concerns
of targeted or masked dumping. That threat has been one
of the most consistent rationales for Commerce’s zeroing
methodology in the past. See, e.g., Timken, 354 F.3d at
1343; Bowe Passat, 926 F. Supp. at 1150; Serampore, 675
F. Supp. 1360-61. By enacting legislation that specifically
addresses such situations, Congress may just as likely
have been signaling to Commerce that it need not con-
tinue its zeroing methodology in situations where such
significant price differences among the export prices do
not exist. In sum, we find it improbable that Congress
chose to manifest its clear intent through subtle implica-
tion. Thus, now as before, we find unconvincing Appel-
lants’ arguments that § 1677f-1(d) manifests a clear
Congressional intent that zeroing methodology be used.
CONCLUSION
For the foregoing reasons, we affirm the Court of In-
ternational Trade’s decision affirming Commerce’s rea-
sonable interpretation of the antidumping statute.
AFFIRMED