Slip Op. 09-129
UNITED STATES COURT OF INTERNATIONAL TRADE
______________________________
:
SEARING INDUSTRIES, SOUTHLAND :
TUBE INC., AND WESTERN TUBE :
CONDUIT CORPORATION, :
:
Plaintiffs, : Before: Richard K. Eaton, Judge
:
: Court No. 08-00278
v. :
:
:
UNITED STATES, :
:
Defendant. :
______________________________:
[The United States Department of Commerce’s final results are
sustained.]
Dated: November 6, 2009
Schagrin Associates (Roger B. Schagrin and Michael J.
Brown), for plaintiffs.
Tony West, Assistant Attorney General; Jeanne E. Davidson,
Director, Patricia M. McCarthy, Assistant Director, Claudia
Burke, Senior Trial Counsel, United States Department of Justice,
Civil Division; Office of the Chief Counsel for Import
Administration, United States Department of Commerce (Jonathan
Zielinski), of counsel, for defendant.
Eaton, Judge: This action is before the court on the USCIT
Rule 56.2 motion for judgment on the agency record of plaintiffs
Searing Industries, Southland Tube Inc., and Western Tube Conduit
Corporation. By their motion, plaintiffs challenge the final
results of the United States Department of Commerce’s (“Commerce”
Court No. 08-00278 Page 2
or the “Department”) antidumping investigation of Nexteel, Co.,
Ltd. (“Nexteel”) for the period of investigation April 1, 2006
through March 31, 2007. See Light-Walled Rectangular Pipe and
Tube from the Republic of Korea, 73 Fed. Reg. 35,655 (Dep’t of
Commerce June 24, 2008) (notice of final determination of sales
at less than fair value) and the accompanying Issues and Decision
Memorandum (Dep’t of Commerce June 13, 2008) (“Issues & Dec.
Mem.”); Light-Walled Rectangular Pipe and Tube from Mex., the
People's Republic of China, and the Republic of Korea, 73 Fed.
Reg. 45,403 (Dep’t of Commerce Aug. 5, 2008) (antidumping duty
orders and notice of amended final determination of sales at less
than fair value) (collectively, “Final Results”).
In particular, plaintiffs contest Commerce’s methodology of
offsetting positive dumping margins with negative dumping margins
in calculating the weighted-average dumping margin applicable to
imports of light-walled rectangular pipe and tube from Korea.
Jurisdiction lies pursuant to 28 U.S.C. § 1581(c) (2006), and 19
U.S.C. § 1516a(a)(2)(B)(iii) (2006). For the reasons set forth
below, Commerce’s Final Results are sustained.
Court No. 08-00278 Page 3
BACKGROUND
Plaintiffs are domestic manufacturers of pipe and tube who
petitioned Commerce in June 2007, “alleg[ing] that imports of
light-walled rectangular pipe and tube from Korea, Mexico,
Turkey, and the [People’s Republic of China], are being, or are
likely to be, sold in the United States at less than fair value,
. . . and that such imports are materially injuring, or
threatening material injury” to the domestic industry. Light-
Walled Rectangular Pipe and Tube from the Republic of Korea,
Mex., Turkey, and the People’s Republic of China, 72 Fed. Reg.
40,274, 40,275 (Dep’t of Commerce July 24, 2007) (initiation of
antidumping duty investigation). In July 2007, Commerce
initiated an antidumping investigation in response to plaintiffs’
petition. See id.
In June 2008, Commerce issued a final affirmative
determination with respect to sales at less than fair value of
light-walled rectangular pipe and tube from the Republic of
Korea. See Light-Walled Rectangular Pipe and Tube from the Rep.
of Korea, 73 Fed. Reg. 35,655 (Dep’t of Commerce June 24, 2008)
(notice of final determination of sales at less than fair value).
Commerce initially calculated a 1.30 percent de minimus
antidumping duty rate for imports from Nexteel, a Korean producer
Court No. 08-00278 Page 4
of light-walled rectangular pipe and tube; the rate was later
reduced to 0.92 percent. See Light-Walled Rectangular Pipe and
Tube from Mex., the People's Republic of China, and the Republic
of Korea, 73 Fed. Reg. 45,403, 45,404 (Dep’t of Commerce Aug. 5,
2008) (antidumping duty orders and notice of amended final
determination of sales at less than fair value). As a result,
although Commerce found that Nexteel’s merchandise was dumped,
because the antidumping duty rate was de minimus, it did not
issue an antidumping order. See, e.g., USEC, Inc. v. United
States, 31 CIT 1049, 1071, 498 F. Supp. 2d 1337, 1356 (2007).
STANDARD OF REVIEW
When reviewing Commerce’s final antidumping determinations,
the court “shall hold unlawful any determination, finding, or
conclusion found . . . to be unsupported by substantial evidence
on the record, or otherwise not in accordance with law . . . .”
19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
The antidumping laws are designed to “level the playing
field” between imported and domestically-produced goods by
imposing increased duties on foreign-produced goods that are sold
Court No. 08-00278 Page 5
in the United States at less than fair value.1 U.S. Steel Corp.
v. United States, 33 CIT __, __, Slip Op. 09-74 at 4 (July 20,
2009) (“U.S. Steel”). Calculating the weighed-average dumping
margin2 plays a significant role in the application of these laws
because it is determinative of the deposit rate3 to be paid on
the importation of merchandise.
In an antidumping investigation, Commerce generally may
determine whether the subject merchandise is being sold at less
than fair value through one of two methods. 19 U.S.C. § 1677f-
1
To determine if goods are sold at less than fair value,
Commerce must first calculate the dumping margin: “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). If the price of a good in the home market (normal
value) is higher than the price for the same good in the United
States (export price), then the dumping margin comparison
produces a positive number that indicates dumping has occurred.
On the other hand, when the price charged for the subject
merchandise in the United States is greater than that charged for
the same merchandise in the home market, the dumping margin
calculation yields a negative value, thus indicating that dumping
has not occurred.
2
The weighted-average dumping margin is “the percentage
determined by dividing the aggregate dumping margins determined
for a specific exporter or producer by the aggregate export
prices and constructed export prices of such exporter or
producer.” 19 U.S.C. § 1677(35)(B).
3
Upon a preliminary determination of dumping, Commerce orders
the posting of a cash deposit or bond in an “amount based on the
estimated weighted average dumping margin . . . .” 19 U.S.C.
§ 1673b(d)(1)(A)(ii); see NSK Ltd. v. United States, 27 CIT 56,
105, 245 F. Supp. 2d 1335, 1375 (2003).
Court No. 08-00278 Page 6
1(d). Commerce may compare a weighted-average of normal values4
to a weighted-average of the export or constructed export prices
of comparable merchandise, or it may compare the normal values of
individual transactions to the export prices or constructed
export prices of individual transactions for comparable
merchandise. 19 U.S.C. § 1677f-1(d)(1)(A)(i)-(ii). When
Commerce applies the first, or average-to-average, methodology
during an investigation, it usually divides the export
transactions into groups by model and level of trade. 19 C.F.R.
§ 351.414(d)(2) (2008). Commerce then compares an average of the
export prices or constructed export prices of the transactions
within one averaging group to the weighted-average of normal
values of such sales. 19 C.F.R. § 351.414(d)(1).
For many years, Commerce’s methodology for calculating
weighted-average dumping margins employed the “zeroing” of
negative dumping margins. Corus Staal BV v. Dep’t of Commerce,
4
As found in 19 U.S.C. § 1677b(a)(1)(B)(i), normal value or
home market value is defined as
the price at which the foreign like product
is first sold (or, in the absence of a sale,
offered for sale) for consumption in the
exporting country, in the usual commercial
quantities and in the ordinary course of
trade and, to the extent practicable, at the
same level of trade as the export price or
constructed export price . . . .
Court No. 08-00278 Page 7
395 F.3d 1343, 1345 (Fed. Cir. 2005) (“Corus Staal I”). That is,
when aggregating the results of the averaging groups in order to
determine the weighted-average dumping margin, Commerce decreased
to zero any weighted-average export price or constructed export
price that exceeded the normal value. Antidumping Proceedings:
Calculation of Weighted-Average Dumping Margin During an Admin.
Investigation, 71 Fed. Reg. 77,722, 77,722 (Dep’t of Commerce
Dec. 27, 2006). Thus, any positive result was not used to offset
the results of averaging groups for which the weighted-average
export price or constructed export price was less than the
weighted-average normal value. Essentially, this practice meant
that only sales at less than fair value were included in the
final calculation of the weighted-average dumping margin.
In October 2005, a World Trade Organization (“WTO”) dispute
settlement panel determined that Commerce’s “denial of offsets
when using the average-to-average comparison methodology in
certain antidumping investigations . . . was inconsistent with
Article 2.4.2 of the Antidumping Agreement5.” See id. (citing
5
The Uruguay Round Agreements Act, Pub.L. No. 103-465, § 224,
108 Stat. 4809, 4878-86 (1994), “implemented the Agreement on
Implementation of Article VI of the General Agreement on Tariffs
and Trade 1994 (‘Antidumping Agreement’).” Thai I-Mei Frozen
Foods Co., Ltd. v. United States, 32 CIT __, __, 572 F. Supp. 2d
1353, 1361 (2008) (citation omitted).
Court No. 08-00278 Page 8
Panel Report, United States-Laws, Regulations and Methodology for
Calculating Dumping Margins, WT/DS294/R (Oct. 31, 2005)).
Thereafter, on March 6, 2006, the Department published in
the Federal Register a notice that it intended to cease zeroing
negative margins in investigations and instead to provide offsets
for non-dumped comparisons in order to comply with the WTO
panel’s findings. Antidumping Proceedings: Calculation of the
Weighted Average Dumping Margin During an Antidumping Duty
Investigation, 71 Fed. Reg. 11,189, 11,189 (Dep’t of Commerce
March 6, 2006). After soliciting rebuttal comments, Commerce
finalized its new methodology by publishing notice that it would
“no longer make average-to-average comparisons in investigations
without providing offsets for non-dumped comparisons.”
Antidumping Proceedings: Calculation of Weighted-Average Dumping
Margin During an Admin. Investigation, 71 Fed. Reg. 77,722,
77,722 (Dep’t of Commerce Dec. 27, 2006). Thus, Commerce gave
notice that it would cease zeroing negative dumping margins in
investigations and stated that in the future it would subtract
negative dumping margins from positive dumping margins in
calculating weighted-average dumping margins. In so doing,
Court No. 08-00278 Page 9
Commerce followed the statutory procedures6 by which a WTO report
may be implemented into domestic law. See 19 U.S.C. § 3533(g).
Plaintiffs raise three related issues in challenging
Commerce’s offsetting methodology. First, they contend that
Commerce’s incorporation of negative dumping margins into its
calculation of Nexteel’s weighted-average dumping margin
conflicts with the plain meaning of 19 U.S.C. § 1677(35)(A).
Plaintiffs’ Br. Supp. Mot. J. Agency R. (“Plaintiffs’ Br.”) 7.
Second, plaintiffs maintain that the plain meaning of the statute
requires zeroing or exclusion of negative margins in both
6
Commerce followed the procedure laid out in Section 123 of
the Uruguay Rounds Agreements Act to implement an adverse
decision from the World Trade Organization into domestic law.
Section 123 establishes procedures for amending, rescinding, or
modifying “an agency regulation or practice that is found to be
inconsistent [by a WTO Dispute Settlement Panel or Appellate
Body] with any of the Uruguay Round Agreements.” U.S. Steel,
Slip Op. 09-74 at 6 (citing 19 U.S.C. § 3533(g)). The
appropriate Congressional committees named in Section 123(f) must
be consulted. 19 U.S.C. § 3533(g)(1)(A). The Trade
Representative must seek advice regarding the modification from
relevant private sector advisory committees and “submit[] . . . a
report describing the proposed modification, the reasons for the
modification, and a summary of the advice obtained . . . .” 19
U.S.C. § 3533(g)(1)(B), (D). The agency must “publish[] in the
Federal Register the proposed modification and the explanation
for the modification” to provide an opportunity for public
comment. Id. at § 3533(g)(1)(C). “[T]he Trade Representative
and the head of the relevant department or agency [must] have
consulted with the appropriate congressional committees on the
proposed contents of the final rule or other modification.” 19
U.S.C. 3533(g)(1)(E). “[T]he final rule or other modification
[must be] published in the Federal Register.” 19 U.S.C.
3533(g)(1)(F).
Court No. 08-00278 Page 10
investigations and reviews. Plaintiffs’ Br. 20. Third,
plaintiffs insist that Commerce’s efforts to bring its
investigation methodology into conformity with the WTO panel’s
decision violated United States law because the plain meaning of
the statute requires Commerce to disregard positive margins.
Plaintiffs’ Br. 6.
A. Legal Framework for Dumping Margins
Plaintiffs’ primary claim is that the plain meaning of 19
U.S.C. § 1677(35)(A) precludes the inclusion in weighted-average
dumping margin calculations of any dumping margins where the
normal value is less than the export price. Plaintiffs’ Br. 7.
As noted, in accordance with the unfair trade laws, Commerce
makes its less than fair value determinations by calculating the
dumping margin, or “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). Here, in calculating the
weighted-average dumping margin for Nexteel, Commerce used its
offsetting methodology and thus subtracted negative dumping
margins from positive margins. Issues & Dec. Mem. 10.
Plaintiffs argue that Commerce was prohibited from using its
offset methodology because the word “exceeds,” as used in 19
Court No. 08-00278 Page 11
U.S.C. § 1677(35)(A), unambiguously requires that only sales at
less than fair value be used in calculating the weighted-average
dumping margin. See Plaintiffs’ Br. 10 (“The result of a
comparison between the [normal value] and [export price] where
the [normal value] is less than the [export price] does not
comport with the statutorily established condition for a dumping
margin . . . .”).
Because the issue raised by plaintiffs has been thoroughly
examined by both the Federal Circuit and this Court, an
exhaustive discussion is unnecessary. First, plaintiffs’
contention that 19 U.S.C. § 1677(35)(A) only contemplates a
calculation methodology that excludes negative dumping margins
has been addressed by the Federal Circuit. See, e.g., Timken Co.
v. United States, 354 F.3d 1334 (Fed. Cir. 2004) (“Timken”);
Corus Staal I, 395 F.3d at 1343.
Although plaintiffs attempt to distinguish the two cases,
Timken and Corus Staal I direct the outcome here. Each case
relied on the rules of statutory construction set out in Chevron
U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837
(1984) (“Chevron”), to find that Commerce’s former zeroing
methodology was a permissible construction of 19 U.S.C.
Court No. 08-00278 Page 12
§ 1677(35)(A). Using Chevron’s7 first step, each case examined
19 U.S.C. § 1677(35)(A) and found, in the context of unfair trade
laws, the word “exceeds” to be ambiguous and the statute overall
to “not directly speak to the issue” of whether only positive
dumping margins might be included in weighted-average dumping
margin calculations. Timken, 354 F.3d at 1342. Then, using
Chevron’s second step, the Federal Circuit considered whether
Commerce made a “reasonable choice within a gap left open by
Congress.” Chevron, 467 U.S. at 866.
In Timken, the Federal Circuit upheld Commerce’s zeroing
methodology in administrative reviews under Chevron’s second
step. In doing so, the Court first found that 19 U.S.C.
§ 1677(35)(A) “does not unambiguously require that dumping
margins be positive numbers,” and then found that “Commerce based
its zeroing practice on a reasonable interpretation of the
statute.” Timken, 354 F.3d at 1342. Importantly for the case
7
In accordance with Chevron, a court must undertake a two-
part analysis when reviewing an agency’s construction of the
statute. First, a court must determine “whether Congress has
directly spoken to the precise question at issue. If the intent
of Congress is clear, that is the end of the matter; for the
court, as well as the agency, must give effect to the
unambiguously expressed intent of Congress.” Chevron, 467 U.S.
at 842-43. If Congress has not addressed the question at issue
and the statute is “silent or ambiguous,” the court must
determine “whether the agency’s answer is based on a permissible
construction of the statute.” Id. at 843.
Court No. 08-00278 Page 13
now before the court, however, the Timken Court found the statute
had not spoken directly on the zeroing question, and thus going
to the second Chevron step was required. Although plaintiffs
argue otherwise, it is apparent that the Federal Circuit found
ambiguity in 19 U.S.C § 1677(35)(A).
In Corus Staal I, the Federal Circuit reiterated its holding
that, because 19 U.S.C § 1677(35)(A) was ambiguous, the second
step of Chevron applied and the test was whether Commerce’s
interpretation was reasonable. In its holding, the Corus Staal I
Court found zeroing reasonable in the context of investigations.
It is again significant, however, that the Court concluded that
the statute remained ambiguous in the context of an investigation
and therefore, found zeroing also “permissible in the context of
administrative investigations.” Corus Staal I, 395 F.3d at 1347.
When Timken and Corus Staal I are read together, it is apparent
that the Federal Circuit has found § 1677(35)(A) to be ambiguous
both in the context of investigations and administrative reviews.
It is equally apparent, however, that neither case found that
zeroing is unambiguously required by the statute.
Now that Commerce has abandoned zeroing in investigations,
the question becomes whether Commerce’s new offsetting
methodology is reasonable under Chevron’s second step in the
Court No. 08-00278 Page 14
context of investigations. Whenever Congress has “explicitly
left a gap for the agency to fill,” the agency’s regulation is
“given controlling weight unless [it is] arbitrary, capricious,
or manifestly contrary to the statute.” Chevron, 467 U.S. at
843-44. “To survive judicial scrutiny, [Commerce’s] construction
need not be the only reasonable interpretation or even the most
reasonable interpretation.” Koyo Seiko Co. v. United States, 36
F.3d 1565, 1570 (Fed. Cir. 1994) (citing Zenith Radio Corp. v.
United States, 437 U.S. 443, 450 (1978)).
Recently, this Court addressed this question, and found
that, “[b]ecause the cited provisions do not directly speak to
the issue of positive and negative value dumping margins, the
second step of Chevron requires that the court evaluate whether
Commerce’s interpretation is based on a permissible construction
of the statutes at issue.” U.S. Steel, 33 CIT __, __, Slip Op.
09-74 at 18. The Court reached this conclusion based on its
reading of Timken and Corus Staal I. See id. at 16 (“The court
is bound by the Federal Circuit’s reading of these provisions in
Timken, which found that Congress’s definition of ‘dumping
margin’ is unclear as to whether the positive and negative value
dumping margins fit within the description of that term. See
Timken, 354 F.3d at 1341-43. The Federal Circuit held that
Court No. 08-00278 Page 15
neither the ‘fair comparison’ phrase in § 1677b(a), nor the
‘exceeds’ language in § 1677(35)(A), requires that Commerce
consider only those dumping margins that yield a positive value
as satisfying the statutory definition of the term ‘dumping
margin.’ See id. The Federal Circuit in Corus [Staal] I also
made clear that the formula described in § 1677(35)(B) does not
limit Commerce as to the specific values that it must consider
when calculating the weighted-average dumping margin. See 395
F.3d at 1346-47.”).
After concluding that Timken and Corus Staal I controlled,
the U.S. Steel Court continued by noting that the Federal
Circuit’s overriding lesson in Timken was that
Congress, in crafting the statutory
definitions of ‘dumping margin’ and
‘weighted-average dumping margin,’ did not
address whether Commerce must (1) employ a
certain methodology to calculate the dumping
margins for the subject merchandise, and (2)
consider only certain values – positive,
negative, or both – as a ‘dumping margin’
when calculating the weighted-average dumping
margin.
U.S. Steel, 33 CIT __, __, Slip Op. 09-74 at 16-17. Based on the
Federal Circuit’s holding in Timken, the U.S. Steel Court found
that “the statutory text does not unambiguously compel the court
to find that Commerce’s use of offsetting is prohibited.” Id. at
17.
Court No. 08-00278 Page 16
Moving to the second step of Chevron, the U.S. Steel Court
found that Commerce’s new methodology was a reasonable
construction of 19 U.S.C § 1677(35)(A). The Court thoroughly
analyzed several factors indicating reasonableness, including:
the deference owed to Commerce and the Executive Branch
(“deference accorded to Commerce’s interpretation is at its
highest when that agency acts under the authority of a
Congressional mandate to harmonize U.S. practices with
international obligations”); the changing of the policy within
the framework set out by Congress (“result of . . . a careful
balancing act”); the full compliance with proper procedures to
make the change (“followed the agency’s regular practice and
procedure in so doing”); the tacit approval by Congress of the
change (“Congress had the opportunity to indicate its
disagreement with Commerce’s adoption of the new rule”); the
central purpose of the antidumping laws (“Commerce does not
offend the central aim of the antidumping laws”); the more
complete view of the market the new methodology allows (“[i]n
using the new methodology, Commerce must consider all sales in
certain investigations”); and the effect of the change on other
statutory sections (“Commerce’s reading of the term . . . does
not render [other statutory sections] meaningless”). Id. at 18-
Court No. 08-00278 Page 17
24; see also id. at 26 (“For the reasons explained herein, the
Section 123 Determination is in accord with law and is
reasonable. Accordingly, . . . the court . . . therefore affords
Commerce’s reasonable reading of § 1677(35)(A)-(B) the deference
it is due under Chevron.”) (citations omitted).
Taken together, these cases all lead to the conclusion that
Commerce reasonably interpreted an ambiguous statute. Based on
the holdings in Timken and Corus Staal I and the analysis in U.S.
Steel, the court finds that Commerce’s methodology of offsetting
positive dumping margins with negative dumping margins in
calculating the weighted-average dumping margins is a permissible
interpretation of 19 U.S.C. § 1677(35)(A).
B. Commerce’s Application of Two Different Methodologies
Plaintiffs point out that the language of § 1677(35)(A) that
the “normal value exceeds the export price” applies to both
investigations and administrative reviews. Plaintiffs’ Br. 20.
As a result, their second claim is that “the statute’s directive
that the dumping margin under [§] 1677(35)(A) equals the amount
that the normal value exceeds the export price applies with equal
force to investigations as it does to reviews.” Plaintiffs’ Br.
25. Put another way, plaintiffs contend that a plain reading of
Court No. 08-00278 Page 18
the statute requires that positive margins be disregarded in both
investigations and reviews when constructing weighted-average
margins.
The problem with plaintiffs’ argument is that it presupposes
that the plain meaning of § 1677(35)(A) unambiguously precludes
Commerce’s offset methodology. As established above, however, it
does not. The statute is ambiguous and Commerce reasonably
interpreted it to permit the offsetting of negative margins in
average-to-average comparisons made in investigations.
Furthermore, the Federal Circuit has reviewed, and accepted,
the use of different calculation methodologies for reviews and
investigations. See Corus Staal BV v. United States, 502 F.3d
1370, 1375 (Fed. Cir. 2007) (“Corus Staal II”). The plaintiff in
that case asserted that Commerce’s elimination of zeroing in
investigations required it to also eliminate the practice in
reviews. In other words, the argument was the reverse of the
claim made here. The Federal Circuit found the Corus Staal II
plaintiff’s argument unconvincing, stating that the change in
policy for investigations only had “no bearing on the present
appeal” which involved a review. Id. at 1374. As a result, the
Federal Circuit concluded that its “previous determination that
Commerce’s policy of zeroing is permissible under the statute
Court No. 08-00278 Page 19
applies to the challenged administrative review,” even though
zeroing had been abandoned for use in investigations. Id. at
1375.
Analyzing Corus Staal II, this Court recently observed in
Union Steel v. United States that
the Court of Appeals in Corus [Staal] II made
it amply clear that it did not consider
Commerce’s decision to discontinue zeroing
when performing average-to-average
comparisons in antidumping investigations
while continuing zeroing in administrative
reviews to be a sufficient basis to disturb
its precedents, under which it had held
zeroing to be permissible in administrative
reviews based on the reasonableness of the
Department’s construction of 19 U.S.C. §
1677(35).
33 CIT __, __, Slip Op. 09-105 at 18 (Sept. 28, 2009). Put
another way, the Federal Circuit was fully aware that different
methodologies were being used in investigations and reviews, and
found no reason to conclude that the situation was unlawful.
This Court reached a similar conclusion in Fujian Lianfu
Forestry Co. v. United States. 33 CIT __, __, Slip Op. 09-81 at
51 (Aug. 10, 2009). In response to another challenge to the
continued use of zeroing in administrative reviews following its
elimination in investigations, the Court noted the “irony in
Commerce now adopting an interpretation of the statute that it
Court No. 08-00278 Page 20
previously rejected[;]” however, the Court added that “such irony
alone does not make Commerce’s new approach unlawful.” Id.
Relying both on Chevron’s anticipation of administrative
flexibility in handling ambiguous statutes and an acknowledgment
that a statute may contain several permissible constructions in
separate contexts, the Fujian Court accepted Commerce’s use of
different calculation methodologies for investigations and
reviews. Id. Commerce had not “arbitrarily shifted its
interpretation of the statute without reason,” but rather
“exercised its gap-filling authority to conform the
administration of the dumping laws with U.S. international
obligations.” Id.; see also Chevron, 467 U.S. at 863-64 (“The
fact that the agency has from time to time changed its
interpretation of the term . . . does not, as respondents argue,
lead us to conclude that no deference should be accorded the
agency's interpretation of the statute. . . . [T]he fact that the
agency has adopted different definitions in different contexts
adds force to the argument that the definition itself is
flexible, particularly since Congress has never indicated any
disapproval of a flexible reading of the statute.”).
Court No. 08-00278 Page 21
Relying on these cases, the court rejects the plaintiffs’
argument that the retention of zeroing in reviews requires its
continued use in investigations.
C. Implementing WTO Panel Decisions
Plaintiffs’ final contention is that “neither a WTO panel
report nor Commerce’s capitulation to the WTO trump” United
States law concerning the calculations of weighted-average
dumping margins. Plaintiffs’ Br. 6. As with their previous
arguments, plaintiffs’ primary claim is that the statute
unambiguously provides that only negative margins can be used to
calculate the weighted-average dumping margin. As noted,
however, § 1677(35)(A) simply does not require the use of zeroing
and Commerce’s offsetting methodology is a reasonable
interpretation of the statute. Therefore, the court holds that
plaintiffs are mistaken in their claim that the WTO ruling and
United States law are in conflict.
Court No. 08-00278 Page 22
CONCLUSION
Based on the foregoing, the court sustains as supported by
substantial evidence and otherwise in accordance with law
Commerce’s use of offsetting negative dumping margins in
calculating Nexteel’s weighted-average dumping margin in its
administrative investigation. Therefore, plaintiffs’ motion is
denied. Judgment shall be entered accordingly.
/s/ Richard K. Eaton
Richard K. Eaton
Dated: November 6, 2009
New York, New York