United States Court of Appeals 

for the Federal Circuit ______________________ 

UNION STEEL, LG HAUSYS, LTD., LG HAUSYS 

AMERICA, INC., AND DONGBU STEEL CO., LTD.,

Plaintiffs-Appellants,

v.

UNITED STATES, 

Defendant-Appellee, 

AND 

NUCOR CORPORATION,

Defendant-Appellee, 

AND 

UNITED STATES STEEL CORPORATION,

Defendant-Appellee.

______________________ 

2012-1248, -1315

______________________ 

Appeal from the United States Court of International 

Trade in No. 11-CV-0083, Judge Jane A. Restani.

______________________ 

Decided: April 16, 2013 

______________________ 
2 UNION STEEL v. US

DONALD B. CAMERON, Morris Manning & Martin LLP, 

Washington, DC, argued for plaintiffs-appellants. With 

him on the brief were JULIE C. MENDOZA, R. WILL 

PLANERT, BRADY W. MILLS, MARY S. HODGINS and 

JEFFREY O. FRANK. 

L. MISHA PREHEIM, Trial Attorney, Civil Division, 

Commercial Litigation Branch, United States Department 

of Justice, of Washington, DC, argued for defendantappellee, United States. With her on the brief were 

STUART F. DELERY, Acting Assistant Attorney General, 

JEANNE E. DAVIDSON, Director, and CLAUDIA BURKE, 

Assistant Director. Of counsel on the brief was DANIEL J.

CALHOUN, Attorney, Office of the Chief Counsel for Import 

Administration, United States Department of Commerce, 

of Washington, DC. 

TIMOTHY C. BRIGHTBILL, Wiley Rein LLP, of Washington, DC, argued for defendant-appellee, Nurcor Corporation. With him on the brief was ALAN H. PRICE. Of 

counsel were MAUREEN E. THORSON, LORI SCHEETZ, 

ROBERT E. DEFRANCESCO, III, and TESSA V. CAPELOTO. 

JEFFREY D. GERRISH, Skadden, Arps, Slate, Meagher 

& Flom, LLP, of Washington, DC, argued for defendantappellee, United States Steel Corporation. With him on 

the brief were ROBERT E. LIGHTHIZER and ELLEN J.

SCHNEIDER. 

NEIL R. ELLIS and JILL CAIAZZO, for amici curiae, Ami 

JTEKT Corporation, et al. and ROBERT A. LEPSTEIN and 

ALEXANDER H. SCHAEFER counsel for NSK Corporation, et 

al. and KEVIN M. O’BRIEN, DIANE A. MACDONALD and 

CHRISTINE M. STREATFIELD, counsel for NTN Corporation, 

et al. 
 UNION STEEL v. US 3

TERENCE P. STEWART and GEERT DE PREST, Stewart 

and Stewart, of Washington, DC, for amicus curiae, 

Committee to support US Trade Laws. 

______________________ 

Before LOURIE, PLAGER, and WALLACH, Circuit Judges.

WALLACH, Circuit Judge. 

In the decision now on appeal, the United States 

Court of International Trade affirmed the Department of 

Commerce’s (“Commerce”) use of zeroing to determine 

antidumping duties in administrative reviews, even 

though Commerce no longer uses zeroing in investigations 

establishing antidumping orders. This court has twice 

considered whether such divergent practices constitute a 

reasonable construction of Commerce’s governing statute, 

both times remanding for Commerce to provide an explanation. In the case now on appeal, Commerce has provided such an explanation. Union Steel, LG Hausys, Ltd., LG 

Hausys America, Inc., and Dongbu Steel Co., Ltd. (collectively, “Appellants”) appeal from the Court of International Trade’s decision that, in light of this explanation, 

Commerce’s zeroing practices are a reasonable interpretation of statute. Union Steel v. United States, 823 F. Supp. 

2d 1346, 1360 (Ct. Int’l Trade 2012) (“Union 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

Dumping occurs when imported merchandise is sold 

for a lower price in the United States than it is sold in its 

home market. This practice can harm domestic producers 

who are selling the same goods at market value. See Sioux 

Honey Ass’n v. Hartford Fire Ins. Co., 672 F.3d 1041, 1046 

(Fed. Cir. 2012). The antidumping duty statute provides 

for the imposition of remedial duties to imported mer-
4 UNION STEEL v. US

chandise sold, or likely to be sold, in the United States “at 

less than fair value” when the relevant domestic industry 

is harmed. 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.”’ U.S. Steel Corp. v. United 

States, 621 F.3d 1351, 1353 (Fed. Cir. 2010) (quoting 19

U.S.C. § 1677(35)(A)). 

Commerce calculates a “dumping margin,” which is 

“the amount by which the normal value exceeds the 

export price or constructed export price.”1 19 U.S.C. 

§ 1677(35)(A). Commerce relies upon three comparison 

methods to calculate dumping margins: 

(1) Average-to-transaction, in which Commerce 

compares the weighted average of the normal 

values to the export prices (or constructed export prices) of individual transactions.

(2) Average-to-average, in which Commerce compares the weighted average of the normal values to the weighted average of the export 

prices (or constructed export prices). 

(3) Transaction-to-transaction, in which Commerce compares the normal value of an indi1 Commerce calculates a “weighted average dumping margin” by “dividing the aggregate dumping margins . 

. . by the aggregate export prices . . . of such exporter or 

producer.” 19 U.S.C. § 1677(35)(B). Put simply, a “dumping margin” is a comparison of the normal value and the 

export price (or constructed export price), whereas a 

“weighted average dumping margin” is the aggregation of 

the results of those comparisons. 

 
 UNION STEEL v. US 5

vidual transaction to the export price (or constructed export price) of an individual transaction. 

See Statement of Administrative Action accompanying the 

Uruguay Round Agreements Act, H.R. Doc. No. 103–316, 

vol. 1, at 842–43, reprinted in 1994 U.S.C.C.A.N. 3773 

(“SAA”). 

Commerce calculates dumping margins both in investigations, which establish an antidumping order, and in 

subsequent administrative reviews of that order. Following an investigation, Commerce issues an antidumping 

order which imposes a duty based upon the dumping 

margin. See 19 U.S.C. §§ 1673a, 1673b(b), 1673b(d), 

1673d(a), 1673d(c). Any exporter of the goods subject to 

the antidumping order may annually request an administrative review to determine the exact amount by which 

the foreign market value exceeds the U.S. price and 

assess the precise amount of duties owed for their exports.2 See 19 U.S.C. §§ 1675(a)(1), 1675(a)(2)(A). 

As explained in the SAA accompanying the Uruguay 

Round Agreements Act (“URAA”) Commerce had a practice of using average-to-transaction comparisons to calculate dumping margins in both investigations and 

administrative reviews. SAA at 842. After adoption of the 

URAA in 1995, Commerce switched to using average-toaverage or transaction-to-transaction comparisons in 

antidumping duty investigations.3 Id.; 19 U.S.C. § 1677f2 “Commerce uses [the] weighted-average dumping 

margin to calculate the duties owed on an entry-by-entry 

basis.” Timken Co. v. United States, 354 F.3d 1334, 1338 

(Fed. Cir. 2004).

3 The statute carves out an exception, however, allowing Commerce to use average-to-transaction comparisons if “there is a pattern of export prices (or constructed 

export prices) for comparable merchandise that differ 

 
6 UNION STEEL v. US

1(d)(1)(A). Commerce continued to use average-totransaction comparisons as its general practice in administrative reviews. 

In calculating the weighted average dumping margin, 

Commerce has historically used a methodology called 

“zeroing” where negative dumping margins (i.e., margins 

of sales of merchandise sold at nondumped prices) are 

given a value of zero and only positive dumping margins 

(i.e., margins for sales of merchandise sold at dumped 

prices) are aggregated. “That is, after [Commerce] computed an average dumping margin for each averaging 

group, if that averaging group . . . product did not have a 

positive dumping margin, Commerce set the margin at 

zero rather [than] at a negative number that would offset 

a positive margin for another averaging group.”4 Union 

Steel, 823 F. Supp. 2d at 1350. The applicable statute, 19 

U.S.C. § 1677(35)(A), does not mention zeroing. However, 

as authority for this method, Commerce has emphasized 

the part of the statute stating that the dumping margin 

“means 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) (emphasis added). 

This court has repeatedly addressed zeroing and has 

held 19 U.S.C. § 1677(35)(A) ambiguous and deferred to 

Commerce’s reasonable interpretation of that statute. 

Timken Co. v. United States, 354 F.3d 1334, 1342 (Fed. 

significantly among purchasers, regions, or periods of 

time.” 19 U.S.C. § 1677f-1(d)(1)(B). This is generally 

referred to as “targeted” or “masked” dumping. 

4 In calculating weighted average dumping margins, Commerce creates an averaging group by grouping 

together sales of merchandise for purpose of price comparability based upon physical characteristics, referred to as 

“models,” and assigns a control-number called

“CONNUM”. See Union Steel, 823 F. Supp. 2d at 1349.

 
 UNION STEEL v. US 7

Cir. 2004) (applying Chevron analysis to determine that 

Commerce’s practice of using zeroing in administrative 

reviews was a reasonable interpretation of the statute); 

Corus Staal BV v. Dep’t of Commerce, 395 F.3d 1343, 1347 

(Fed. Cir. 2005) (“Corus”) (extending Timken to encompass Commerce’s practice of zeroing in investigations). 

Zeroing is controversial because some parties claim it 

does not fully account for all of the comparable export 

transactions, and so is not a “fair comparison” between 

export price and normal value as required by Article 2.4 

and 2.4.2 of the Anti-Dumping Agreement. See Panel 

Report, United States—Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”),

¶¶ 7.32, 7.33, WT/DS294/R (Oct. 31, 2005); aff’d Appellate 

Report, United States—Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), ¶ 146, 

WT/DS294/AB/R (Apr. 18, 2006); see also Dongbu Steel 

Co. v. United States, 635 F.3d 1363, 1366 (Fed. Cir. 2011) 

(characterizing zeroing as “controversial”).

Commerce’s use of zeroing with average-to-average 

comparisons in certain antidumping duty investigations 

was challenged by the European Communities before the 

World Trade Organization’s (“WTO”) Dispute Settlement 

Body. See Panel Report, ¶¶ 7.32, 7.33. The WTO found 

Commerce’s practice inconsistent with the United States’ 

international obligations, and Commerce determined that 

it would cease using zeroing methodology in new and 

pending investigations. See Antidumping Proceedings: 

Calculation of the Weighted-Average Dumping Margin 

During an Antidumping Investigation; Final Modification, 71 Fed. Reg. 77,722 (Dec. 27, 2006). Instead, Commerce started using a method of “offsetting” to account for 

sales made at less than fair value, such that some of the 

dumping margins used to calculate a weighted average 

dumping margin would be negative. U.S. Steel, 621 F.3d 

at 1355. 
8 UNION STEEL v. US

In 2011, this court considered a challenge to Commerce’s continuing use of zeroing in administrative reviews in an earlier review of the same antidumping duty 

order at issue in this case. In Dongbu, appellant Union 

Steel argued “that it is unreasonable to construe a single 

statutory provision [19 U.S.C. § 1677(35)] that applies to 

both investigations and administrative reviews as having 

opposite meanings depending on the nature of the antidumping proceeding.” Dongbu, 635 F.3d at 1370. The 

court determined that “[a]lthough 19 U.S.C. § 1677(35) is 

ambiguous with respect to zeroing and Commerce plays 

an important role in resolving this gap in the statute, 

Commerce’s discretion is not absolute. Commerce must 

provide an explanation for why the statutory language 

supports its inconsistent interpretation.” Id. at 1372. The 

decision of the Court of International Trade was vacated 

and remanded for further proceedings “to give Commerce 

the opportunity to explain its reasoning.” Id. at 1373. 

Shortly thereafter, but before Commerce had the 

opportunity to provide an explanation, the court again 

addressed Commerce’s practice of zeroing in administrative reviews but not in investigations in JTEKT, stating 

that Commerce

failed to address the relevant question—why is it 

a reasonable interpretation of the statute to zero 

in administrative reviews, but not in investigations? It is not illuminating to the continued 

practice of zeroing to know that one phase uses 

average-to-average comparisons while the other 

uses average-to-transaction comparisons. In order to satisfy the requirement set out in Dongbu, 

Commerce must explain why these (or other) differences between the two phases make it reasonable to continue zeroing in one phase, but not the 

other. 
 UNION STEEL v. US 9

JTEKT Corp. v. United States, 642 F.3d 1378, 1384–85 

(Fed. Cir. 2011). Accordingly, the Court of International 

Trade’s decision was vacated and the case was remanded 

“in order for Commerce to provide its reasoning.” Id. at 

1385.

Commerce’s explanation is now before the court. At 

the Court of International Trade, Appellants challenged 

Commerce’s application of zeroing methodology to the 

final results of the sixteenth administrative review for 

imports of certain corrosion-resistant carbon steel flat 

products from the Republic of Korea, the same antidumping duty order at issue in Dongbu. Union Steel, 823 F. 

Supp. 2d at 1347–48; see Dongbu, 635 F.3d at 1373. The 

United States sought a voluntary remand from the Court 

of International Trade in light of this court’s decision in 

JTEKT, and the court granted the motion. J.A.96. On 

remand, Commerce discussed the inconsistent use of 

zeroing in administrative reviews and investigations, and 

explained why it believed its interpretation is reasonable, 

stating in summary: 

First [Commerce] has, with one limited exception, 

maintained a long-standing, judicially-affirmed 

interpretation of [19 U.S.C. § 1677(35)] pursuant 

to which [Commerce] does not consider export 

price to be a dumped price where normal value is 

less than export price. Pursuant to this interpretation, [Commerce] includes no (or zero) amount 

of dumping, rather than a negative amount of 

dumping, in calculating the aggregate weightedaverage dumping margin where normal value is 

less than export price. Second, the limited exception to this interpretation was not adopted as an 

arbitrary departure from established practice, but 

was adopted, instead, in response to a specific international obligation the Executive Branch determined to implement pursuant to the 

procedures established by the [URAA] for such 
10 UNION STEEL v. US

changes in practice with full notice, comment and 

explanation thereof. Third, [Commerce’s] interpretation reasonably resolves the ambiguity in [19 

U.S.C. § 1677(35)] in a way that accounts for the 

inherent differences between the result of an average-to-average comparison on the one hand and 

the result of an average-to-transaction comparison 

on the other.

Results of Redetermination Pursuant to Remand at 7 (Oct. 

14, 2011) (“Remand Results”).5 The Court of International Trade sustained Commerce’s explanation, concluding 

that Commerce “did not abuse its discretion in changing 

its investigation methodology, but not its review methodology . . . in response to WTO decisions.” Union Steel, 823 

F. Supp. 2d at 1360. This appeal followed. We have 

jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).

5 It bears noting that Commerce has since revised 

its methodology in administrative reviews using averageto-average comparisons as the default method for calculating weighted average dumping margins. See Antidumping Proceedings: Calculation of the WeightedAverage Dumping Margin and Assessment Rate in Certain 

Antidumping Duty Proceedings; Final Modification, 77 

Fed. Reg. 8,101 (Feb. 14, 2012) (Final Modification for 

Reviews). This change only applies prospectively. Id. As 

part of the modification, Commerce indicated it would not 

use the zeroing methodology, but instead would allow for 

offsets when making average-to-average comparisons in 

administrative reviews. Id. This modification does not 

foreclose the possibility of using zeroing methodology 

when Commerce employs a different comparison method 

to address masked dumping concerns. See id. 

 
 UNION STEEL v. US 11

DISCUSSION

While we recognize the Court of International Trade 

has unique and specialized expertise in trade law,6 its 

decision is reviewed de novo, applying anew the same 

standard used by that court in its consideration of Commerce’s determination. Dongbu, 635 F.3d at 1369. Accordingly, Commerce’s antidumping determination will be 

upheld unless it is “unsupported by substantial evidence 

on the record, or otherwise not in accordance with law.” 

19 U.S.C. § 1516a(b)(1)(B)(i). We apply a two-part inquiry 

to determine whether to sustain Commerce’s statutory 

interpretation. See Chevron, U.S.A., Inc. v. Natural Res. 

Def. Council, Inc., 467 U.S. 837, 842–43 (1984). First, we 

determine “whether Congress has directly spoken to the 

precise question at issue.” Id. at 842. If so, we “must give 

effect to the unambiguously expressed intent of Congress.” Id. at 842–43. “[I]f the statute is silent or ambiguous with respect to the specific issue,” however, “the 

question for the court is whether the agency’s answer is 

based on a permissible construction of the statute.” Id. at 

843.

The question here, as in Dongbu and JTEKT, is 

whether it is reasonable for Commerce to use zeroing in 

administrative reviews even though it no longer uses 

zeroing in investigations. See Dongbu, 635 F.3d at 1369; 

6 “The expertise of the Court of International Trade

. . . guides it in making complex determinations in a 

specialized area of the law. . . .” United States v. Haggar 

Apparel Co., 526 U.S. 380, 394 (1999); see also Ad Hoc 

Shrimp Trade Action Comm. v. United States, 618 F.3d 

1316, 1321 (Fed. Cir. 2010) (quoting Int’l Trading Co. v. 

United States, 281 F.3d 1268, 1274) (Fed. Cir. 2002) (“the 

Court of International Trade ‘has expertise in addressing 

antidumping issues and deals on a daily basis with the 

practical aspects of trade practice.”’). 

 
12 UNION STEEL v. US

JTEKT, 642 F.3d at 1384–85. Our analysis of the issue, 

however, is now aided by Commerce’s explanation why 

the ambiguous statute, 19 U.S.C. § 1677(35), supports use 

of zeroing in administrative reviews and not in investigations. Thus, our task is now to determine whether Commerce’s explanation of its zeroing practice is a reasonable 

interpretation of the statute. 

Commerce’s decision to modify its zeroing practice has 

previously been sustained by this court. In U.S. Steel, the 

court sustained Commerce’s decision to cease zeroing 

when making average-to-average comparisons in antidumping duty investigations while recognizing Commerce 

intended to continue zeroing in other circumstances. See 

U.S. Steel, 621 F.3d at 1355 n.2, 1362–63. The court 

relied upon the differences among various types of comparison methodologies, recognizing that 19 U.S.C. 

§ 1677f-1(d)(1) allows Commerce to use average-totransaction comparisons in investigations where certain 

patterns of significant price differences exist. Id. at 1362. 

Additionally, the court sustained Commerce’s decision to 

use zeroing methodology in an administrative review 

using average-to-transaction comparisons. SKF USA Inc. 

v. United States, 630 F.3d 1365, 1375 (Fed. Cir. 2011). In 

SKF, the court stated that “[e]ven after Commerce 

changed its policy with respect to original investigations, 

we have held that Commerce’s application of zeroing to 

administrative reviews is not inconsistent with the statute.” Id.

Contrary to Appellants’ assertions, Commerce’s reasonable interpretation of the statute is not foreclosed by 

this court’s prior decisions.7 In Corus, the court held that 

7 Amici JTEKT Corp., Koyo Corp. of U.S.A., NSK 

Ltd., NSK Corp., NTN Corp., NTN Bearing Corp. of 

America, American NTN Bearing Mfg. Corp., NTN-Bower 

Corp., and NTN Driveshaft, Inc., have forthrightly conceded as much, stating: “But the [c]ourt in Donbgu and 

 
 UNION STEEL v. US 13

the statute was equally ambiguous for both administrative reviews and investigations and thus Commerce may 

use zeroing in both despite using different comparison 

methodologies in each. Corus, 395 F.3d at 1347. Although 

this court noted, in dicta, that “[i]t may be that Commerce 

cannot justify using opposite interpretations of 19 U.S.C. 

§ 1677(35) in investigations and in administrative reviews,” Dongbu, 635 F.3d at 1373, neither Dongbu nor 

JTEKT foreclosed the opportunity for Commerce to provide an explanation. Instead, both cases specifically 

requested that Commerce do so. Id.; JTEKT, 642 F.3d at 

1384–85. Commerce’s explanation now on review demonstrates that its varying interpretations are reasonable 

given the distinction between the comparison methodologies used in investigations and administrative reviews. 

Moreover, Commerce attributes the differing interpretations as necessary to comply with international obligations, while preserving a practice that serves recognized 

policy goals. Each of these analyses will be discussed in 

turn.

1.

Commerce justifies using zeroing in administrative reviews but not in investigations in part based on the 

different comparison methodologies used in each. Commerce explained in its Remand Results that average-toaverage comparison methodology typically used in investigations is useful for examining an exporter’s or manufacturer’s overall pricing behavior. Remand Results at 13. 

Overall pricing behavior helps determine the appropriateness of imposing an antidumping duty order on a 

particular product. Id. With an antidumping duty order 

JTEKT stopped well short of a categorical answer, instead 

affording [Commerce] an opportunity to further explain 

and justify its disparate interpretations.” Amicus Br. in 

Support of Plaintiffs-Appellants and Reversal at 7–8. 

 
14 UNION STEEL v. US

already in place, administrative reviews typically use 

average-to-transaction comparison methodology which 

permits greater specificity to determine pricing behavior 

for individual transactions. Id. The greater specificity 

afforded through that methodology furthers the transactional accuracy interests of administrative review. Union 

Steel, 823 F. Supp. 2d at 1359. We agree with the Court 

of International Trade’s explanation that this distinction 

is supported by statute: “Specificity is less important in 

investigations in that [product group (CONNUM)] averages in investigations are not even monthly averages, as 

they are in reviews. Rather, they are averages over a 

broad time period compared to all other broad averages.” 

Id. (citing 19 U.S.C. § 1677f-1(d); 19 C.F.R. 

§ 351.414(d)(3), (e)). However, “when it comes to setting 

the final rates to be used for actual assessment, i.e., the 

review rates, it is reasonable for the agency to look for 

more accuracy, which it achieves in some measure 

through monthly averaging, and also for the agency to 

look for the full measure of duties resulting therefrom, 

which it better achieves through zeroing.” Id. The Court 

of International Trade noted that “parties who are marginally dumping or not dumping may be excluded from 

the order pursuant to the looser standards of the investigation.” Id. That is, in an investigation, margins of less 

than two percent are treated as de minimis, resulting in a 

party’s exclusion from the order, while in an administrative review, margins of 0.5 percent or less are treated as 

de minimis. Id.

Commerce also explained that the average-to-average 

methodology justifies the use of offsetting (i.e., not zeroing) for reasons inapplicable to average-to-transaction 

comparisons. When using average-to-average comparisons, transactions are divided into “averaging groups.” 

Remand Results at 11. Transactions are divided into 

averaging groups on the basis of physical characteristics 

and level of trade for the purpose of price comparison. Id. 
 UNION STEEL v. US 15

When calculating the average export price or constructed 

export price, Commerce calculates a comparison result for 

each averaging group, and averages together high and low 

export prices within the group. Thus, those export prices 

above normal value offset those below normal value 

within the averaging group. Commerce then aggregates 

the results of the comparison for each averaging group to 

calculate a weighted average dumping margin. Id. at 11–

12. Accordingly, this comparison methodology masks 

individual transaction prices below normal value with 

other above normal value prices within the same averaging group. 

In contrast, when Commerce uses the average-totransaction comparison method, as it did in this administrative review, Commerce compares the export price (or 

constructed export price) for a particular export transaction with an average normal value for the comparable 

sales of foreign like products within the averaging group. 

Id. at 12. For specific export transactions, Commerce 

calculates a comparison result which establishes the 

amount that transaction is priced at less than its normal 

value. Id. Using this methodology, Commerce does not 

average export transaction prices before comparing the 

export price (or constructed export price) to normal value. 

Instead, Commerce uses a single export transaction price 

and aggregates the transaction-specific comparison result. 

The average-to-transaction comparison methodology thus 

reveals individual dumping. 

Commerce’s decision to use or not use the zeroing 

methodology reasonably reflects unique goals in differing 

comparison methodologies. In average-to-average comparisons, as used in investigations, Commerce examines 

average export prices; zeroing is not necessary because 

high prices offset low prices within each averaging group. 

When examining individual export transactions, using the 

average-to-transaction comparison methodology, prices 

are not averaged and zeroing reveals masked dumping. 
16 UNION STEEL v. US

This ensures the amount of antidumping duties assessed 

better reflect the results of each average-to-transaction 

comparison.8 Commerce’s differing interpretation is 

reasonable because the comparison methodologies compute dumping margins in different ways and are used for 

different reasons. 

2.

Commerce also explained the methodology for investigations was changed in response to an adverse WTO 

decision through a section 123 proceeding.9 In Dongbu, 

8 The Court has previously recognized the purpose 

of relying on average-to-transaction comparison methodology in administrative reviews:

The purpose of the antidumping statute is to protect domestic manufacturing against foreign 

manufacturers who sell at less than fair market 

value. Averaging U.S. prices defeats this purpose 

by allowing foreign manufacturers to offset sales 

made at less-than-fair value with higher priced 

sales. Commerce refers to this practice as 

“masked dumping.” By using individual U.S. 

prices in calculating dumping margins, Commerce 

is able to identify a merchant who dumps the 

product intermittently—sometimes selling below 

the foreign market value and sometimes selling 

above it. We cannot say that this is an unfair or 

unreasonable result.

Koyo Seiko Co., Ltd. v. United States, 20 F.3d 1156, 1159 

(Fed. Cir. 1994) (internal citations omitted). 

9 Section 123 is the part of the URAA that laid out 

the administrative procedure for response to adverse 

WTO rulings. The U.S. Trade Representative consulted 

public and private sector committees, and Commerce 

provided for public comment before determining whether 

 
 UNION STEEL v. US 17

the government raised this rationale at oral argument, 

and this court indicated that “the government’s decision 

to implement an adverse WTO report standing alone does 

not provide sufficient justification for the inconsistent 

statutory interpretations.” Dongbu, 635 F.3d at 1372. 

Nevertheless, it is within Commerce’s discretion to adopt 

reasonable practices to meet international obligations. 

Union Steel, 823 F. Supp. 2d at 1357–58.10 Certainly, this 

information is relevant when considered in conjunction 

with the other explanations offered by Commerce. 

Section 123 establishes how an adverse WTO decision 

may be implemented in domestic law. See 19 U.S.C. 

§§ 3533; 3538. The WTO’s decision was limited; it found 

that Commerce’s use of zeroing methodology with respect 

to average-to-average comparisons in antidumping duty 

investigations was inconsistent with the United States’s 

international obligations. Panel Report ¶ 7.106. The 

Executive Branch responded by discontinuing its zeroing 

practice in new and pending investigations using averageto-average comparison methodology. Antidumping Proceedings: Calculation of the Weighted-Average Dumping 

Margin During an Antidumping Duty Investigation; Final 

Modification, 71 Fed. Reg. 77,722 (Dec. 27, 2006); see U.S. 

Steel, 621 F.3d at 1354–55. Commerce, did not, however, 

alter its practice with respect to the use of zeroing methand how to change its practice. See 19 U.S.C. § 3533; 

Antidumping Proceedings: Calculation of the WeightedAverage Dumping Margin During an Antidumping Duty 

Investigation; Final Modification, 71 Fed. Reg. 77,722 

(Dec. 27, 2006).

10 This court sustained Commerce’s decision to cease 

zeroing in average-to-average comparisons in investigations, while acknowledging that Commerce intended to 

continue to use zeroing in other types of comparisons 

methods. U.S. Steel, 621 F.3d at 1355 n.2 1362–63. 

 
18 UNION STEEL v. US

odology in anything other than investigations using 

average-to-average comparisons. “[T]here is no reason to 

assume that [Commerce’s] only legal option is to expand 

the exception to apply in all contexts.” Remand Results at 

18. Commerce may reasonably decline to take any action 

beyond that which is necessary for it to come into compliance. See ThyssenKrupp Acciai Speciali Terni S.p.A. v. 

United States, 603 F.3d 928, 934 (Fed. Cir. 2010) (affirming Commerce’s determination to only address that which 

was necessary to bring its determination into accordance 

with a WTO ruling). Commerce’s modification was limited to changes that were necessary to comply with the 

WTO decision. 

Citing Clark v. Martinez, 543 U.S. 371 (2005),11 Appellants argue that it is unreasonable to construe a single 

statutory provision that applies in both investigations and 

administrative reviews as having different meanings 

depending on the type of antidumping proceeding. In 

Clark, the Supreme Court relied upon the rule of lenity to 

support a limiting construction of a statutory provision 

concerning detention of aliens subject to removal from the 

United States. Clark, 543 U.S. at 380–81. The Supreme 

Court applied traditional rules of statutory construction, 

and never considered Chevron deference in reaching its 

determination. See Clark, 543 U.S. 371. Here, the court 

has repeatedly held that 19 U.S.C. § 1677(35) is ambiguous and Commerce’s explanation of its interpretation 

must be reasonable. See Timken, 354 F.3d at 1342; Corus, 

395 F.3d at 1347; U.S. Steel, 621 F.3d at 1361. Thus, 

Clark is distinguishable here, where there is a conflict 

between two permissible interpretations simultaneously 

maintained. 

11 In Clark, the majority determined that a single 

statutory provision cannot be given different meanings 

when applied to different categories of aliens. Clark, 543 

U.S. at 378. 

 
 UNION STEEL v. US 19

No rule of law precludes Commerce from interpreting 

19 U.S.C. § 1677(35) differently in different circumstances 

as long as it provides an adequate explanation. “[I]f the 

agency adequately explains the reasons for a reversal of 

policy, ‘change is not invalidating, since the whole point of 

Chevron is to leave the discretion provided by the ambiguities of a statute with the implementing agency.”’ Nat’l 

Cable & Telecomms. Ass’n v. Brand X Internet Servs., 545 

U.S. 967, 981 (2005) (quoting Smiley v. Citibank (South 

Dakota), N.A., 517 U.S. 735, 742 (1996)).12 

CONCLUSION

For these reasons, the Court of International Trade’s 

decision is affirmed.

AFFIRMED

12 Somewhat similarly, this court remanded a case 

for Commerce to provide an explanation of why interpreting the term “foreign like product” could be construed to 

mean different things in different parts of the antidumping statute. SKF USA Inc. v. United States, 263 F.3d 

1369, 1382–83 (Fed. Cir. 2001). Following the remand, 

this court noted that 19 U.S.C. § 1677(16) contains three 

subsections providing three alternative definitions for the 

term “foreign like product” and that there was no restriction that Commerce use just one of those subsections 

per proceeding. FAG Kugelfisher Georg Shaefer AG v. 

United States. 332 F.3d 1370, 1373 (Fed. Cir. 2003). The 

court held that it was therefore reasonable for Commerce 

to apply the definition in one subsection for purposes of 

price-based calculations for normal value under 19 U.S.C. 

§ 1677b(a)(1), while applying the definition in a different 

subsection for purposes of establishing constructed value 

under 19 U.S.C. § 1677b(e)(2)(A). Id. at 1373–74; see SKF, 

263 F.3d at 1382–83.