United States Court of Appeals 

for the Federal Circuit ______________________ 

JBF RAK LLC,

Plaintiff-Appellant

v.

UNITED STATES,

Defendant-Appellee

MITSUBISHI POLYESTER FILM, INC., DUPONT 

TEIJIN FILMS, SKC, INC.,

Defendants

______________________ 

2014-1774

______________________ 

Appeal from the United States Court of International 

Trade in No. 13-cv-00211, Senior Judge Judith M. Barzilay.

______________________ 

Decided: June 24, 2015

______________________ 

 JACK MLAWSKI, Galvin & Mlawski, New York, NY, 

argued for plaintiff-appellant.

 MELISSA M. DEVINE, Commercial Litigation Branch, 

Civil Division, United States Department of Justice, 

Washington, DC, argued for defendant-appellee. Also 

represented by JOYCE R. BRANDA, JEANNE E. DAVIDSON,

PATRICIA M. MCCARTHY; DEVIN S. SIKES, Office of the 
2 JBF RAK LLC V. UNITED STATES

Chief Counsel for Import Administration, United States 

Department of Commerce, Washington, DC.

______________________ 

Before DYK, WALLACH, and HUGHES, Circuit Judges.

WALLACH, Circuit Judge. 

Appellant JBF RAK, LLC (“JBF RAK”) appeals the 

United States Court of International Trade’s (“CIT”) 

decision sustaining the U.S. Department of Commerce’s 

(“Commerce”) final results of the administrative review 

covering polyethylene terephthalate film (“PET Film”) 

from the United Arab Emirates (“UAE”) for the period of 

review from November 1, 2010 through October 31, 2011. 

See Polyethylene Terephthalate Film, Sheet, and Strip 

from the United Arab Emirates, 78 Fed. Reg. 29,700 

(Dep’t of Commerce May 21, 2013) (final results of antidumping duty administrative review; 2010–2011) (“Final 

Results”). For the reasons set forth below, we affirm. 

BACKGROUND

Commerce issued an antidumping duty order covering 

PET Film from UAE in November 2008. See Polyethylene 

Terephthalate Film, Sheet, and Strip from Brazil, the 

People’s Republic of China, and the United Arab Emirates, 

73 Fed. Reg. 66,595 (Dep’t of Commerce Nov. 10, 2008) 

(antidumping duty orders and amended final determination of sales at less than fair value for the United Arab 

Emirates). JBF RAK is a manufacturer and exporter of 

PET Film from UAE, and pursuant to 19 U.S.C. 

§ 1675(a)(1) (2006), on November 30, 2011, it requested 

that Commerce conduct an administrative review of the 

antidumping duty order for this period of review. Commerce initiated its review in December 2011. See Initiation of Antidumping and Countervailing Duty 

Administrative Reviews and Request for Revocation in 

Part, 76 Fed. Reg. 82,268 (Dep’t of Commerce Dec. 30, 

2011) (initiation). However, before Commerce published 
JBF RAK LLC V. UNITED STATES 3 

its preliminary results, Mitsubishi Polyester Film, Inc., 

SKC, Inc., and Toray Plastics America, Inc. (collectively 

“domestic producers”) filed an allegation of targeted 

dumping1 against JBF RAK on November 16, 2012. In 

that petition, the domestic producers argued Commerce 

should not use the average-to-average comparison method 

typically used in administrative reviews2 because that 

method would not account for the price differences of JBF 

RAK’s merchandise, and should instead use an averageto-transaction method of comparison. 

On December 7, 2012, Commerce published its preliminary results and assigned JBF RAK a dumping margin of 5.31% using its average-to-average comparison 

methodology. See Polyethylene Terephthalate Film, Sheet, 

and Strip from the United Arab Emirates, 77 Fed. Reg. 

1 Targeted dumping occurs in “situations where 

comparable merchandise ‘differ[s] significantly among 

purchasers, regions, or periods of time.’” U.S. Steel Corp. 

v. United States, 621 F.3d 1351, 1359 (Fed. Cir. 2010) 

(quoting 19 U.S.C. § 1677f-1(d)(1)(B)). 

2 In 2012, Commerce revised its methodology in 

administrative reviews from using average-to-transaction 

comparisons as its general practice in administrative 

reviews to average-to-average comparisons as the default 

method for calculating weighted average dumping margins. Union Steel v. United States, 713 F.3d 1101, 1106 

n.5 (Fed. Circ. 2013) (citing Antidumping Proceedings: 

Calculation of the Weighted-Average Dumping Margin 

and Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, 77 Fed. Reg. 8,101, 8,101

(Feb. 14, 2012) (codified at 19 C.F.R. pt. 351) (Commerce 

“will calculate weighted-average margins of dumping and 

antidumping duty assessment rates in a manner which 

provides offsets for non-dumped comparisons while using 

monthly average-to-average . . . comparisons in reviews.”).

 
4 JBF RAK LLC V. UNITED STATES

73,010, 73,010–11 & n.5 (Dep’t of Commerce Dec. 7, 2012) 

(preliminary results of antidumping duty administrative 

review; 2010–2011) (“Preliminary Results”). In its accompanying Preliminary Decision Memorandum, Commerce indicated it “did not have sufficient time to fully 

analyze [the targeted dumping issue] for purposes of these 

preliminary results” and that it would “address [the 

domestic producers’] targeted dumping allegation at a 

later date.” Polyethylene Terephthalate Film, Sheet, and 

Strip from the United Arab Emirates A-520-803 (Decision 

Memorandum for the Preliminary Results of Antidumping 

Duty Administrative Review) (Dep’t of Commerce Nov. 30, 

2012) (J.A. 123–31). 

On March 8, 2013, Commerce published a postpreliminary determination addressing the domestic 

producers’ allegation of targeted dumping. See Polyethylene Terephthalate Film, Sheet, and Strip from the 

United Arab Emirates, A-520-803 (Post-Preliminary 

Results Analysis Memo for JBF RAK LLC) (Dep’t of 

Commerce Mar. 8, 2013) (J.A. 164–65) (“Post-Preliminary 

Determination”). Using an average-to-transaction comparison methodology, Commerce determined JBF RAK 

had engaged in targeted dumping and assigned it a 

revised dumping margin of 9.80%. After interested parties were invited to comment on Commerce’s targeted 

dumping analysis, Commerce continued to apply the 

average-to-transaction comparison methodology and 

carried on the dumping margin of 9.80%. See Final 

Results, 78 Fed. Reg. at 29,700–01. 

JBF RAK appealed to the CIT, and in July 2014, that 

court denied JBF RAK’s motion for judgment on the 

agency record. JBF RAK LLC v. United States, 991 F. 

Supp. 2d 1343 (Ct. Int’l Trade 2014). Before the CIT, JBF 

RAK challenged, inter alia, Commerce’s targeted dumping 

analysis, and disputed Commerce’s authority to apply the 

average-to-transaction comparison method in administrative reviews. The CIT held that Commerce provided a 
JBF RAK LLC V. UNITED STATES 5 

legitimate explanation for applying the average-totransaction method in the review, and sustained the Final 

Results. 

JBF RAK appeals and this court has jurisdiction 

pursuant to 28 U.S.C. § 1295(a)(5) (2012). 

DISCUSSION

I. Standard of Review and Legal Framework

The court “review[s] a decision of the [CIT] evaluating 

an antidumping determination by Commerce by reapplying the statutory standard of review that the [CIT] applied in reviewing the administrative record.” Ta Chen 

Stainless Steel Pipe, Inc. v. United States, 298 F.3d 1330, 

1335 (Fed. Cir. 2002). Thus, this court sustains “any 

determination, finding, or conclusion” made by Commerce 

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) (2012). 

The antidumping duty statute provides for the application of remedial duties to foreign goods sold, or likely to 

be sold, in the United States at less than fair value. Id.

§ 1673(1). A dumping margin is the amount by which 

“‘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” for each entry of subject 

merchandise that is under review. See 19 U.S.C.

§ 1675(a)(2)(A)(ii) (2006). 

This court employs the two-part test articulated in 

Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837 (1984) in reviewing Commerce’s 

interpretation of the statute. We first look to “whether 

Congress has directly spoken to the precise question at 

issue.” Id. at 842. “[I]f the statute is silent or ambiguous 
6 JBF RAK LLC V. UNITED STATES

with respect to the specific issue,” we assess whether 

Commerce’s “answer is based on a permissible construction of the statute.” Id. at 843. 

II. Analysis

On appeal, JBF RAK claims Commerce: (1) unlawfully applied its targeted dumping methodology in the context of an administrative review; (2) improperly 

considered petitioners’ allegation of targeted dumping; (3) 

unlawfully issued the Post-Preliminary Determination; 

and (4) failed to consider certain facts about JBF RAK’s 

pricing practices in its targeted dumping determination. 

We address these arguments seriatim.

A. Commerce’s Targeted Dumping Analysis Is Not Contrary to Law

JBF RAK’s primary argument on appeal is that 

“Commerce improperly considered the targeting allegation by relying on the statutory provision for investigations.” Appellant’s Br. 7. Specifically, JBF RAK asserts 

that 19 U.S.C. § 1677f-1(d)(1)(B)3 provides an “exception” 

3 In relevant part, 19 U.S.C. § 1677f-1(d)(1) and (2) 

state:

(d) Determination of less than fair value

(1) Investigations

(A) In general 

In an investigation under part II of this 

subtitle, [Commerce] 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 merchandise, or (ii) by comparing the normal values of individual 

transactions to the export prices (or con-

 
JBF RAK LLC V. UNITED STATES 7 

to use an average-to-transaction comparison only in 

investigations, and it cannot be applied in administrative 

reviews. Id. at 6. That is, to JBF RAK, because Congress 

created an explicit exception in the statute for investigations but did not include one in the section relating to 

administrative reviews, Commerce is not able to use an 

“average-to-transaction” comparison in administrative 

reviews. The government counters that the CIT correctly

structed export prices) of individual transactions for comparable merchandise.

(B) Exception 

[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 

values to the export prices (or constructed 

export prices) of individual transactions for 

comparable merchandise, 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) [Commerce] 

authority explains why such differences cannot be taken into account using a method described in paragraph (1)(A)(i) or (ii).

(2) Reviews

In a review under section 1675 of this title, when comparing export prices (or constructed export prices) of individual 

transactions to the weighted average price of 

sales of the foreign like product, [Commerce] 

shall limit its averaging of prices to a period 

not exceeding the calendar month that corresponds most closely to the calendar month of 

the individual export sale.

19 U.S.C. § 1677f-1(d).

 
8 JBF RAK LLC V. UNITED STATES

held that Commerce’s interpretation was reasonable and 

entitled to Chevron deference. 

Under Chevron step one, this court first looks to 

“whether Congress has directly spoken to the precise 

question at issue.” Chevron, 467 U.S. at 842. JBF RAK 

contends “the statute is not silent. The provision with 

respect to investigations creates an ‘exception’ and the 

provisions immediately after applicable to reviews, do not, 

and, thus, refute any asserted ambiguity or silence.” 

Appellant’s Br. 8. Appellant’s expressio unius est exclusio 

alterius line of reasoning fails. Section 1677f-1(d)(2) of 

Title 19 provides for calculating the dumping margin in 

administrative reviews; it does not, however, provide the 

specific methodology to make the comparison between 

normal value and the actual or constructed export price. 

See 19 U.S.C. § 1677f-1(d)(2). Thus, because Congress did 

not speak to the precise question at issue, we turn to 

Chevron step two: whether Commerce’s interpretation “is 

based on a permissible construction of the statute.” 

Chevron, 467 U.S. at 843. 

When a statute fails to make clear “any Congressionally mandated procedure or methodology for assessment 

of the statutory tests,” Commerce “may perform its duties 

in the way it believes most suitable.” U.S. Steel Grp. v. 

United States, 96 F.3d 1352, 1362 (Fed. Cir. 1996). Under 

Chevron, “[i]f Congress has explicitly left a gap for the 

agency to fill, there is an express delegation of authority 

to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given 

controlling weight unless they are arbitrary, capricious, or 

manifestly contrary to the statute.” Chevron, 467 U.S. at 

843–44. 

Pursuant to 19 C.F.R. § 351.414(b) (2012), 

“[c]omparison of normal value with export price (constructed export price),” there are three methods by which 

value may be compared to export price or constructed 
JBF RAK LLC V. UNITED STATES 9 

export price: (1) average-to-average: “a comparison of the 

weighted average of the normal values with the weighted 

average of the export prices (and constructed export 

prices) for comparable merchandise;” (2) transaction-totransaction: “a comparison of the normal values of individual transactions with the export prices (or constructed 

export prices) of individual transactions for comparable 

merchandise;” and (3) average-to-transaction: “a comparison of the weighted average of the normal values to the 

export prices (or constructed export prices) of individual 

transactions for comparable merchandise.” 19 C.F.R. 

§ 351.414(b)(1)–(3). The regulation also states that in 

choosing the method of review “in an investigation or 

review, [Commerce] will use the average-to-average 

method unless [it] determines another method is appropriate in a particular case.” Id. at § 351.414(c)(1) (emphasis added). 

Here, Commerce “exercised its gap-filling discretion 

by applying a comparison methodology[, i.e. the averageto-transaction comparison method,] in reviews that parallels the methodology used in investigations.” JBF RAK, 

991 F. Supp. 2d at 1347. JBF RAK points to no authority 

that contradicts this practice. Thus, contrary to JBF 

RAK’s claims, Commerce’s decision to apply its averageto-transaction comparison methodology in the context of 

an administrative review is reasonable. Because Congress did not provide for a direct methodology, Commerce 

properly “fill[ed] th[at] gap.” Chevron, 467 U.S. at 843. 

JBF RAK also contends the Statement of Administrative Action (“SAA”) accompanying the Uruguay Round 

Agreements Act “do[es] not provide the authority to apply 

the explicit exception for investigations in Section 1677f1(d)(1)(B) to administrative reviews.” Appellant’s Br. 4. 

JBF RAK relies on Article 2.4.2 of the SAA, which states, 

“[i]n a departure from current U.S. law, Article 2.4.2 

provides that in investigations (not reviews), national 

authorities normally will establish dumping margins by 
10 JBF RAK LLC V. UNITED STATES

comparing either: a weighted-average of normal values to 

a weighted-average of export prices of comparable merchandise; or normal value and export price on a transaction-to-transaction basis.” Appellant’s Br. 12 (quoting 

SAA, H.R. No. 103-316, vol. 1, at 810 (1994), reprinted in 

1994 U.S.C.C.A.N 4040, 4153 (emphasis added). According to JBF RAK, “[t]he parenthetical language in the SAA 

‘(not reviews)’ clearly and unambiguously establishes 

Congress’ understanding of the obligation under the 

agreement that the targeting allegation is to be considered and, if it exists, an alternative comparison method is 

applied in investigations and ‘not reviews.’” Id. However, 

this passage fails to address what methods Commerce 

may use to make comparisons between normal value and 

export price or constructed export price in administrative 

reviews; it addresses investigations only. Moreover, as 

the government notes, “the SAA does not limit the proceedings in which Commerce may consider an alternate 

comparison method when an average-to-average or transaction-to-transaction method cannot account for a pattern 

of United States prices that differ significantly among 

purchasers, regions, or time periods.” Appellee’s Br. 20 

(citing SAA at 842–43). 

Accordingly, the CIT correctly concluded that “[t]he 

fact that the statute is silent with regard to administrative reviews does not preclude Commerce from filling gaps 

in the statute to properly calculate and assign antidumping duties.” JBF RAK, 991 F. Supp. 2d at 1348. 

B. The Targeted Dumping Allegation Was Timely Filed 

Pursuant to 19 C.F.R. § 351.3014

4 Citations to 19 C.F.R. in this opinion refer to the 

2012 version, prior to the revisions that are reflected in 

the 2013 version, unless otherwise noted. 

 
JBF RAK LLC V. UNITED STATES 11

JBF RAK next argues “that [the domestic producers’]

untimely allegation of targeted dumping was improperly 

considered in violation of the time requirements of 19 

C.F.R. § 351.301.” Appellant’s Br. 13. JBF RAK first 

contends the domestic producers’ targeted dumping 

allegation was in violation of § 351.301(c), which provides 

that rebuttal factual information must be filed within ten 

days of service of factual information submitted by any 

other interested party. See 19 C.F.R. § 351.301(c)(1). 

Commerce did not categorize the targeted dumping allegation as “rebuttal factual information,” as covered by

§ 351.301(c)(1). J.A. 194 (“While [19 C.F.R. 

§] 351.301(c)(1) pertains to rebuttal factual information, 

[the domestic producers’] targeted dumping allegation 

cannot reasonably be characterized as rebuttal factual 

information, as JBF [RAK] claims.”). Commerce explained that though the “[domestic producers] used the 

information on the record of this review for purposes of 

advocating that [Commerce] consider using a different 

method to compare normal value and export price (or 

constructed export price),” that fact “does not transform 

[the domestic producers’] allegation into the submission of 

facts, for the facts that served as the basis for [the domestic producers’] claim already were on the record.” J.A. 

194–95. 

JBF RAK nevertheless argues that “[a]ssuming that 

the rebuttal facts must be ‘new,’ although there is no such 

requirement in the regulation, the allegation herein 

certainly adduced facts that were not evident from the 

information on record. . . . Commerce made the questionable assertion that reliance on record information cannot 

be ‘new.’” Appellant’s Br. 16. However, JBF RAK points 

to no evidence whatsoever supporting this assertion and 

we accordingly afford it no weight. Because the targeted 

dumping allegation did not present new “facts” for Commerce to consider, Commerce did not err in finding the 

domestic producers’ allegation was timely.
12 JBF RAK LLC V. UNITED STATES

Additionally, 19 C.F.R. § 351.301 differentiates between “factual information” under § 351.301(c), and 

“certain allegations” under § 351.301(d). Subsection (d) 

detailed the timeline for submission of targeted dumping 

allegations in investigations under the now-withdrawn 

§ 351.301(d)(5) (2007). As Commerce found, the domestic 

producers’ targeted dumping allegation was akin to 

submissions under subsection (d). J.A. 195 (“Because the 

nature of the filings listed in [19 C.F.R. §] 351.301(d) 

closely resemble [domestic producers’] targeted dumping 

allegation, (and in fact the now-withdrawn targeted 

dumping allegation was listed under that very provision), 

it stands to reason that [Commerce] properly considered 

[domestic producers’] submission as an allegation and not 

rebuttal factual information.” (footnote omitted)). Accordingly, domestic producers’ targeted dumping allegations 

were not included as part of the submissions covered by 

subsection (c), but rather, were more closely related to 

those of subsection (d). 

C. The CIT Did Not Abuse Its Discretion When It Found 

JBF RAK Failed to Exhaust Its Administrative Remedies

JBF RAK also contends Commerce erred in failing to 

find the now-withdrawn 19 C.F.R. § 351.301(d)(5) (2007) 

barred the domestic producers’ allegations of targeted 

dumping. JBF RAK argues the CIT abused its discretion 

when it held JBF RAK failed to exhaust its administrative remedies, thereby “depriv[ing] Commerce of the 

opportunity to ‘apply its expertise, rectify administrative 

mistakes, and compile a record adequate for judicial 

review—advancing the twin purposes of protecting administrative agency authority and promoting judicial 

efficiency.’” JBF RAK, 991 F. Supp. 2d at 1350 (citation 

omitted). 

Relatedly, JBF RAK argues the allegation was untimely under 19 C.F.R. § 351.301(b)(2) because factual 

information is due “140 days after the last day of the 
JBF RAK LLC V. UNITED STATES 13

anniversary month” in the final results of an administrative review, and the domestic producers submitted their

targeted dumping allegation after that date. 

JBF RAK did not cite to the time limits in 19 C.F.R. 

§ 351.301(d)(5) or (b)(2) after either the Post-Preliminary 

Determination or in its administrative briefing to argue 

that these regulations precluded Commerce from considering the targeted dumping allegation. See J.A. 140–58, 

171–87. Under 28 U.S.C. § 2637(d), the CIT “shall, where 

appropriate, require the exhaustion of administrative 

remedies” in civil actions arising from Commerce’s antidumping duty determinations. The CIT “takes a ‘strict 

view’ of the requirement that parties exhaust their administrative remedies before [Commerce] in trade cases.” 

Corus Staal BV v. United States, 502 F.3d 1370, 1379 

(Fed. Cir. 2007). Because JBF RAK failed to raise these 

issues before Commerce, the CIT correctly found it had 

not exhausted its administrative remedies. See 19 C.F.R. 

§ 351.309(c)(2) (“The case brief must present all arguments that continue in the submitter’s view to be relevant 

to [Commerce’s] final determination.”). 

There are limited exceptions to the exhaustion doctrine. Essar Steel, Ltd. v. United States, 753 F.3d 1368, 

1374 (Fed. Cir. 2014). JBF RAK argues a CIT case decided after the Final Results, Gold East Paper (Jiangsu) Co.,

v. United States, 918 F. Supp. 2d 1317 (Ct. Int’l Trade 

2013), was an intervening legal authority that excused its 

failure to exhaust on the theory that, until Gold East 

Paper, JBF RAK thought that § 351.301(d)(5) of the 

regulations had been effectively withdrawn. The CIT 

addressed this argument, explaining it “presents an 

interesting academic question but it is one the court need 

not answer.” JBF RAK, 991 F. Supp. 2d at 1350. The 

CIT held that, even if the regulation applied, “the government may waive its procedural deadlines under general principles of administrative law.” Id. To overcome 

these principles, JBF RAK was required to show “it was 
14 JBF RAK LLC V. UNITED STATES

substantially prejudiced by Commerce’s supposed violation of its regulatory deadlines.” Id. On appeal, JBF RAK 

contends “clearly JBF was substantially prejudiced by the 

issuance of a second preliminary determination not authorized under the statute,” Appellant’s Br. 14, however, 

JBF RAK provides no further evidence or argument, and

we therefore find this contention unpersuasive. 

In any event, in Gold East Paper, the CIT found that 

Commerce improperly withdrew 19 C.F.R. § 351.414(f)(2) 

(2007), not § 351.301(d)(5) (2007), the regulation at issue 

in the instant case. See 918 F. Supp. 2d 1325–28. JBF 

RAK argues that it did not know it could challenge the 

withdrawal of § 351.301(d)(5) as inconsistent with the 

Administrative Procedure Act until Gold East Paper. 

Appellant’s Br. 22. However, “a litigant must diligently 

protect its rights in order to be entitled to relief.” 

Mukand Int’l, Ltd. v. United States, 502 F.3d 1366, 1370 

(Fed. Cir. 2007). JBF RAK did not raise this issue before 

Commerce and we will not address it here. 

D. Commerce Did Not Err in Issuing the Post-Preliminary 

Results

JBF RAK next argues Commerce acted ultra vires

when it issued the Post-Preliminary Determination 

because 19 U.S.C. § 1675(a)(2)(B)(iv) and (C) provide for 

only preliminary and final determinations. Appellant’s 

Br. 24. The CIT rejected the claim as “a superficial legal 

argument that ignores general principles of administrative law.” JBF RAK, 991 F. Supp. 2d at 1352. This court 

has stated that “‘[a]bsent constitutional constraints or 

extremely compelling circumstances the administrative 

agencies should be free to fashion their own rules of 

procedure and to pursue methods of inquiry capable of 

permitting them to discharge their multitudinous duties.’” 

PSC VSMPO-Avisma Corp. v. United States, 688 F.3d 

751, 760 (Fed. Cir. 2012) (quoting Vt. Yankee Nuclear 

Power Corp. v. Natural Res. Def. Council, Inc., 435 U.S. 
JBF RAK LLC V. UNITED STATES 15

519, 543–44 (1978)). Here, Commerce issued its PostPreliminary Determination, gave parties an opportunity 

to comment, “and still managed to issue the Final Results 

within the statutory time-frame.” JBF RAK, 991 F. Supp. 

2d at 1353. Accordingly, the CIT correctly found that JBF 

RAK was not prejudiced by Commerce’s decision to issue 

a Post-Preliminary Determination. 

E. Commerce’s Interpretation of 19 U.S.C. § 1677f1(d)(1)(B)(i) Is Reasonable

JBF RAK argues that “Commerce must consider evidence that price patterns that meet the Nails Test[5] do 

5 The Nails Test involves a two-step analysis:

In the first stage of the test, the “standard-deviation test,” [Commerce] determine[s]

the volume of the allegedly targeted group’s 

(i.e., purchaser, region or time period) sales 

of subject merchandise (by sales volume) 

that are at prices more than one standard 

deviation below the weighted-average price 

of all sales under review, targeted and nontargeted. . . . If that volume did not exceed 

33 percent of the total volume of the respondent’s sales of subject merchandise for 

the allegedly targeted group, then [Commerce does] not conduct the second stage of 

the Nails Test. If that volume exceeded 33 

percent of the total volume of the respondent’s sales of subject merchandise for the allegedly targeted group, on the other hand, 

then [Commerce] proceed[s] to the second 

stage of the Nails Test.

In the second stage, the “gap test,” we 

examined all sales of identical merchandise 

(i.e., by [control number]) sold to the allegedly targeted group which passed the standard-

 
16 JBF RAK LLC V. UNITED STATES

not constitute targeted dumping.” Appellant’s Br. 26

(capitalization omitted) (italics added); see Certain Steel 

Nails from the People’s Republic of China, 73 Fed. Reg. 

33,977 (Dep’t of Commerce June 16, 2008) (final determination of sales at less than fair value and partial affirmative determination of critical circumstances); Certain Steel 

Nails from the United Arab Emirates, 73 Fed. Reg. 33,985 

(Dep’t Commerce June 16, 2008) (notice of final determination of sales at not less than fair value).

deviation test. From those sales, [Commerce] determined the total volume of sales 

for which the difference between the 

weighted-average price of sales for allegedly 

targeted group and the next higher 

weighted-average price of sales to the nontargeted groups exceeds the average price 

gap (weighted by sales volume) for the nontargeted groups. [Commerce] weight[s] each 

of the price gaps between the non-targeted 

groups by the combined sales volume associated with the pair of prices for the nontargeted groups that defined the price gap. 

In doing this analysis, the allegedly targeted 

group’s sales were not included in the nontargeted groups; the allegedly targeted 

group’s average price was compared only to 

the average prices for the non-targeted 

groups. If the volume of the sales that met 

this test exceeded five percent of the total 

sales volume of subject merchandise to the 

allegedly targeted group, then [Commerce] 

determine[s] that targeting occurred and 

these sales passed the Nails Test.

JBF RAK, 991 F. Supp. 2d at 1354 (citation omitted). 

 
JBF RAK LLC V. UNITED STATES 17

According to JBF RAK, “because of its sales practice[s], it could not target customers, regions or periods of 

time and the pricing pattern found by Commerce was the 

result of market conditions.” Id. Thus, according to JBF 

RAK, it was “arbitrary, capricious and an abuse of discretion to refuse to consider evidence which would tend to 

establish that the pricing pattern was not due to targeted 

sales but, instead, was for a valid business purpose.” Id. 

at 27. The CIT held that 19 U.S.C. § 1677f-1(d)(1)(B) 

defines “targeted dumping” in terms of a pattern of export 

prices, and that Commerce’s Nails Test reasonably determines when such a pattern exists. JBF RAK, 991 F. 

Supp. 2d 1355.

Section 1677f-1(d)(1)(B) does not require Commerce to 

determine the reasons why there is a pattern of export 

prices for comparable merchandise that differs significantly among purchasers, regions, or time periods, nor 

does it mandate which comparison methods Commerce 

must use in administrative reviews. As a result, Commerce looks to its practices in antidumping duty investigations for guidance. Here, the CIT did not err in finding 

there is no intent requirement in the statute, and we 

agree with the CIT that requiring Commerce to determine 

the intent of a targeted dumping respondent “would 

create a tremendous burden on Commerce that is not 

required or suggested by the statute.” JBF RAK, 991 F. 

Supp. 2d at 1355 (internal quotation marks and citation 

omitted). 

CONCLUSION

The court has considered JBF RAK’s other arguments 

and finds them unpersuasive. For the reasons set forth 

above, the decision of the CIT is 

AFFIRMED