Slip Op. 09-74

UNITED STATES COURT OF INTERNATIONAL TRADE

____________________________________

:

UNITED STATES STEEL :

CORPORATION, : 

:

Plaintiff, :

:

and :

:

NUCOR CORPORATION, :

GALLATIN STEEL COMPANY, :

SSAB NORTH AMERICAN DIVISION, :

STEEL DYNAMICS INC., and :

ARCELORMITTAL USA, INC., :

: Before: Judith M. Barzilay, Judge

Plaintiff-Intervenors, : Consol. Court No. 07-00170

:

v. :

:

UNITED STATES, :

 :

Defendant, :

:

and :

:

CORUS STAAL BV, :

:

Defendant-Intervenor. :

:

____________________________________:

OPINION

[Plaintiff’s and Plaintiff-Intervenors’ Motions for Judgment Upon the Agency Record are

denied.]

Dated: July 20, 2009
Consol. Court No. 07-00170 Page 2

 Commerce twice delayed the implementation of the Section 123 Determination, with the 1

change in policy ultimately taking effect on February 22, 2007. See Antidumping Proceedings:

Calculation of the Weighted-Average Dumping Margins in Antidumping Investigations; Change

in Effective Date of Final Modification, 72 Fed. Reg. 1,704, 1,704 (Dep’t Commerce Jan. 16,

2007); Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margins in

Antidumping Investigations; Change in Effective Date of Final Modification, 72 Fed. Reg. 3,783,

3,783 (Dep’t Commerce Jan. 26, 2007).

Skadden Arps Slate Meagher & Flom, LLP (Robert E. Lighthizer, Jeffrey D. Gerrish, Ellen J.

Schneider, and Luke A. Meisner), for Plaintiff United States Steel Corporation.

Wiley Rein (Alan H. Price and Timothy C. Brightbill), for Plaintiff-Intervenor Nucor Corporation.

Schagrin Associates (Roger B. Schagrin and Michael J. Brown), for Plaintiff-Intervenors Gallatin

Steel Company, SSAB North American Division, and Steel Dynamics Inc.

Stewart and Stewart (Terence P. Stewart and William A. Fennell), for Plaintiff-Intervenor

ArcelorMittal USA, Inc.

Tony West, Assistant Attorney General; Jeanne E. Davidson, Director; Patricia M. McCarthy,

Assistant Director, Commercial Litigation Branch, Civil Division, United States Department of

Justice (Claudia Burke); Sapna Sharma, Office of the Chief Counsel for Import Administration,

United States Department of Commerce, Of Counsel, for Defendant United States.

Steptoe & Johnson LLP (Richard O. Cunningham, Joel D. Kaufman, Alice A. Kipel, and Jamie

B. Beaber), for Defendant-Intervenor Corus Staal BV.

BARZILAY, JUDGE: In December 2006, the U.S. Department of Commerce

(“Commerce”) determined that it would apply a new methodology to calculate the weightedaverage dumping margins in certain investigations. See Antidumping Proceedings: Calculation

of the Weighted-Average Dumping Margin During an Antidumping Investigation; Final

Modification, 71 Fed. Reg. 77,722, 77,722 (Dep’t Commerce Dec. 27, 2006) (“Section 123

Determination”). Plaintiff United States Steel Corporation (“U.S. Steel”), along with other 1
Consol. Court No. 07-00170 Page 3

 Nucor Corporation (“Nucor”), Gallatin Steel Company, SSAB North American 2

Division, and Steel Dynamics, Inc. (together, “Gallatin”), as well as ArcelorMittal USA, Inc.

(“ArcelorMittal”) (collectively, “Plaintiff-Intervenors”), join this action pursuant to USCIT R.

24. Corus Staal BV (“Corus”) is a defendant-intervenor here under the same rule.

Implementation of the Findings of the WTO Panel in US–Zeroing (EC): Notice of 3

Determinations Under Section 129 of the Uruguay Round Agreements Act and Revocations and

Partial Revocations of Certain Antidumping Duty Orders, 72 Fed. Reg. 25,261, 25,262 (Dep’t

Commerce May 4, 2007) (“Section 129 Determination”). 

 Zeroing and offsetting are different methodologies used to determine the weighted- 4

average dumping margin. Offsetting is the practice whereby Commerce, when calculating the

numerator in the weighted-average dumping equation, offsets sales made at less than fair value

with fair value sales. Zeroing is a practice that is related to – but distinct from – offsetting,

whereby Commerce gives the sales margins of merchandise sold at or above fair value prices an

assumed value of zero. See Corus Staal BV v. Dep’t of Commerce, 395 F.3d 1343, 1345-46

(Fed. Cir. 2005). With zeroing, Commerce uses only the sales margins of merchandise sold at

less than fair value prices to calculate the final weighted-average dumping margin. See id.

 While U.S. Steel challenged Commerce’s decision not to consider its claim of targeted 5

dumping in the Section 129 administrative proceeding, it does not do so here in either its

complaint or in its briefing and thereby waives its right to challenge that component of

Commerce’s Section 129 Determination.

interested domestic parties, challenge that determination in a particular Section 129 proceeding, 2 3

claiming that the use of offsetting and the elimination of zeroing is not in accordance with

antidumping law. Plaintiff and Plaintiff-Intervenors also allege that Commerce’s application of 4

the methodology outlined in the Section 123 Determination to reach the final results of the

Section 129 Determination was not in accordance with law. Finally, Plaintiff-Intervenors Nucor

and ArcelorMittal argue that Commerce erred when it declined to consider their claims of

targeted dumping in the Section 129 Determination. For the reasons stated below, the court

5

rejects all three claims in Plaintiff’s and Plaintiff-Intervenors’ Motions for Judgment Upon the

Agency Record and, therefore, denies the motions and grants judgment to the Government.
Consol. Court No. 07-00170 Page 4

 The dumping margin (“DM”) is expressed functionally as DM = NV - (EP or CEP). 6

The NV is the price charged for the subject merchandise in the home market, an appropriate third

country market price, or the cost of production of the goods subject to statutorily permitted

adjustments. 19 U.S.C. § 1677b(a)(1)(B)(i)-(ii), (a)(4). The EP is the price at which the subject

merchandise is sold by the producer or exporter to an unaffiliated purchaser in the U.S. or for

exportation to the U.S. 19 U.S.C. § 1677a(a). However, if the foreign producer or exporter is

I. Background

A. The Purpose of the Antidumping Laws and the Weighted-Average Dumping Margin

The central aim of the antidumping laws is to protect domestic industries from foreign

manufactured goods that are sold injuriously in the United States at prices below the fair market

value of those goods in their home market. See Sango Int’l, L.P. v. United States, 484 F.3d 1371,

1372 (Fed. Cir. 2007). The antidumping laws are not punitive in nature, but rather, are meant to

“remedy disparities in the value of imported and domestic merchandise created by impermissible

international trade practices.” Bethlehem Steel Corp. v. United States, 25 CIT 930, 933, 162 F.

Supp. 2d 639, 643 (2001). The application of antidumping principles should level the playing

field between foreign and domestic manufacturers of like merchandise and not give an unfair

advantage to the domestic industry. See Peer Bearing Co. v. United States, 25 CIT 1199, 1221,

182 F. Supp. 2d 1285, 1310 (2001). 

Commerce is required to impose an antidumping duty order on imported merchandise

that (1) is sold in the U.S. below its fair value and (2) materially injures or threatens to injure a

domestic industry. 19 U.S.C. § 1673. The determination of whether the subject imports are sold

at less than fair value involves a two-step process, whereby Commerce must first calculate the

“dumping margin” – the amount by which “the normal value [(“NV”)] exceeds the export price

[(“EP”)] or constructed export price [(“CEP”)] of the subject merchandise.” 19 U.S.C. 6
Consol. Court No. 07-00170 Page 5

affiliated with the importer of the subject merchandise, then a CEP may be used. § 1677a(a)-(b). 

The CEP is the price, as adjusted pursuant to § 1677a(c)-(d), at which the subject merchandise is

first sold in the U.S. to a buyer unaffiliated with the producer or exporter. § 1677a(b). 

§ 1677(35)(A). If the price of a good in the home market (NV) is greater than the price for the

same good in the U.S. (EP or CEP), then the dumping margin comparison produces a positive

number indicating that dumping has occurred. In contrast, when the price charged for the subject

merchandise in the U.S. (EP or CEP) is greater than that charged for the same merchandise in the

home market (NV), the dumping margin calculation yields a negative value, showing that those

sales were made fairly. 

The second step of the process requires Commerce to determine the weighted-average

dumping margin, which expresses the dumping margin as a percentage and is determined by

dividing the aggregate dumping margins of a specific exporter or producer by the aggregate

export or constructed export prices of that same exporter or producer. § 1677(35)(B). 

Importantly, under Commerce’s new methodology of offsetting, the numerator in the weightedaverage dumping margin calculation is the aggregate of all dumping margins (i.e., those that have

both positive and negative values). Under the previously employed zeroing methodology, those

dumping margins with a negative value were given an assumed value of zero. A weightedaverage dumping margin that yields a positive value demonstrates, on the whole, that the subject

merchandise was dumped in the United States. 

If the International Trade Commission (“ITC”) finds that the dumped subject

merchandise causes the domestic industry to suffer material injury or threatens material injury,

then Commerce must issue an antidumping duty order covering entries of the subject
Consol. Court No. 07-00170 Page 6

merchandise. 19 U.S.C. § 1673. The antidumping duty imposed on entries of the subject

merchandise is equal in amount to the weighted-average dumping margin. §§ 1673,

1677(35)(A)-(B).

B. Sections 123 and 129 of the Uruguay Round Agreements Act

Congress established two procedures by which an adverse decision from the World Trade

Organization (“WTO”) Dispute Settlement Panel or Appellate Body may be implemented into

domestic law – Sections 123 and 129 of the Uruguay Round Agreements Act (“URAA”). A

Section 123 determination amends, rescinds, or modifies an agency regulation or practice that is

found to be inconsistent with any of the Uruguay Round Agreements. 19 U.S.C. § 3533(g)(1). 

This scheme requires the United States Trade Representative (“USTR”), an official of the

Executive Branch, to consult with the appropriate congressional and private sector advisory

committees, and to provide an opportunity for public comment before determining whether and

how to implement the agency regulation or practice at issue. Id. The USTR, as part of the

consultation process, is required to provide the relevant congressional committees with a report

that describes the proposed modification, the reasons for the modification, and a summary of the

advice obtained from the private sector advisory committees. § 3533(g)(1)(D). The final

modification takes effect when it is published in the Federal Register. § 3533(g)(1)(F).

The second procedure – a Section 129 determination – amends, rescinds, or modifies the

application of an agency regulation or practice in a specific antidumping, countervailing duty, or

safeguards proceeding that is found to be inconsistent with U.S. obligations under the WTO

Antidumping Agreement (“AD Agreement”), the Agreement on Subsidies and Countervailing
Consol. Court No. 07-00170 Page 7

Measures, or the Safeguards Agreement. 19 U.S.C. § 3538(a)(1), (b)(1). Here, the USTR must

consult with the relevant congressional committees and request in writing that the pertinent

agency issue a new determination consistent with the findings set forth in the WTO Panel or

Appellate Body Report. §§ 3538(a)(1), (a)(3)-(5), (b)(1)-(3). Interested parties may also submit

written comments on the proposed modification and, where appropriate, ask for an administrative

hearing on the matter. § 3538(d). A Section 129 determination takes effect on or after the date

on which the USTR directs the agency to implement the determination in whole or in part. 

§ 3538(c)(1). Commerce must also publish the determination in the Federal Register to provide

notice of the agency action to interested parties. § 3538(c)(2).

C. The Original Antidumping Duty Order & Subsequent Developments

On November 29, 2001, after the ITC had determined that the subject imports injured the

domestic industry, Commerce issued an antidumping duty order covering hot-rolled carbon steel

flat products from the Netherlands. See Antidumping Duty Order: Certain Hot-Rolled Carbon

Steel Flat Products From the Netherlands, 66 Fed. Reg. 59,565, 59,566 (Dep’t Commerce Nov.

29, 2001). Commerce used zeroing to calculate the final dumping margin for the subject

merchandise, finding a dumping margin of 2.59% for the sole respondent Corus. See id.; Notice

of Final Determination of Sales at Less Than Fair Value; Certain Hot-Rolled Carbon Steel Flat

Products From The Netherlands, 66 Fed. Reg. 50,408, 50,409 (Dep’t Commerce Oct. 3, 2001);

Issues and Decision Memorandum for the Antidumping Investigation of Certain Hot-Rolled

Carbon Steel Flat Products from the Netherlands; Notice of Final Determination of Sales at Less

Than Fair Value (A-421-807), A-421-807 (Oct. 3, 2001), available at 2001 WL 1168309, at *6-
Consol. Court No. 07-00170 Page 8

 A law, regulation, or measure of a WTO Member that violates a WTO agreement “as 7

such” means that the “Member’s conduct – not only in a particular instance that has occurred, but

in future situations as well – will necessarily be inconsistent with that Member’s WTO

obligations.” Appellate Body Report, United States – Sunset Reviews of Anti-Dumping Measures

on Oil Country Tubular Goods from Argentina, ¶ 172, WT/DS268/AB/R (Nov. 29, 2004). In

contrast, a law, regulation or measure that violates a WTO agreement “as applied” means that the

WTO Member’s “application of a general rule to a specific set of facts” is inconsistent with that

Member’s WTO obligations. Id. at ¶ 6 n.22. 

7. During the investigation, neither the Plaintiff nor the Plaintiff-Intervenors made an allegation

of targeted dumping, and Commerce did not determine whether it had occurred. 

The European Communities thereafter challenged Commerce’s use of zeroing in several

antidumping investigations and administrative reviews before the WTO, including the

investigation that resulted in the imposition of an antidumping duty order on hot-rolled carbon

steel flat products from the Netherlands. See Request for Consultations by the European

Communities, United States – Laws, Regulations and Methodology for Calculating Dumping

Margins (Zeroing), at 4-5, WT/DS294/1 (June 19, 2003). On October 31, 2005, a WTO Panel

found Commerce’s use of zeroing in investigations involving comparisons of weighted-average

normal values to weighted-average U.S. prices to be inconsistent with U.S. obligations under the

AD Agreement. See Panel Report, United States – Laws, Regulations and Methodology for

Calculating Dumping Margins (“Zeroing”), ¶¶ 8.2-8.4, WT/DS294/R (Oct. 31, 2005) (“Panel

Report”). Specifically, the WTO Panel found that zeroing violates the AD Agreement as such

and as applied in the specific investigations at issue. Id. The Appellate Body upheld the WTO 7

Panel’s determination on appeal and went further, stating that Commerce’s use of zeroing in

certain administrative reviews was also inconsistent with the AD Agreement. See Appellate
Consol. Court No. 07-00170 Page 9

Body Report, United States – Laws, Regulations and Methodology for Calculating Dumping

Margins (“Zeroing”), ¶¶ 132-35, 263(a)(i), WT/DS294/AB/R (Apr. 18, 2006).

In response to the Panel Report, Commerce announced that as a general policy it would

use offsetting and no longer zero negative margins in antidumping investigations involving

comparisons of “average-to-average” prices. Section 123 Determination, 71 Fed. Reg. at 77,722. 

Throughout its pronouncement, Commerce explicitly stated that the central purpose of the

Section 123 Determination was to conform its practices with U.S. obligations as outlined in the

Panel Report. See id. at 77,722. Specifically, Commerce explained that the department’s new

policy would specifically apply in (1) the recalculation of the dumping margins in the “specific

antidumping investigations” challenged by the European Communities in the Panel Report and

(2) all then current and future investigations involving comparisons of average-to-average prices. 

Id. at 77,725. Notably, the Section 123 Determination did not embrace all the findings of the

WTO Appellate Body, stating that the change in policy applied only to investigations that use

average-to-average comparisons and did not extend to any other kind of investigation or

administrative review. Id. at 77,724.

Commerce subsequently implemented its policy change to particular investigations under

Section 129 of the URAA. Applying the Section 123 Determination to the investigation at issue,

Commerce recalculated the weighted-average dumping margin on the subject merchandise with

the use of offsetting, finding that it decreased from 2.59% to zero. Section 129 Determination,

72 Fed. Reg. at 25,262. The agency, therefore, revoked the antidumping order on hot-rolled

carbon steel from the Netherlands, effective for entries of the subject merchandise made on or
Consol. Court No. 07-00170 Page 10

after April 23, 2007. Id. Importantly, Plaintiff and Plaintiff-Intervenors argued during the

Section 129 proceeding that Commerce’s Section 123 Determination was not in accordance with

law because the antidumping laws prohibit the use of offsetting and require zeroing. See Issues

and Decision Memorandum for the Final Results of the Section 129 Determinations, A-122-838,

A-421-807, A-427-820, A-428-830, A-475-829, A-412-822, A-401-806, A-469-807, A-475-820,

A-423-808, A-475-824, A-475-818 (Apr. 9, 2007), Def. Br. App. A at 5-9 (“Section 129

Determination Issues and Decision Memorandum”). Defendant, however, rejected that notion,

stating that the Section 123 Determination was concerned only with making the specific

investigations at issue in the Panel Report congruent with U.S. obligations under the AD

Agreement, and that its application to the Section 129 proceeding was in accordance with U.S.

law. Id. at 9-11. Defendant also rejected claims by U.S. Steel, Nucor and ArcelorMittal that it

erred when it declined to make a finding on targeted dumping. Id. at 13-14. Commerce

explained that (1) the allegation of targeted dumping was untimely and (2) there was no good

cause to extend the deadline for submitting such a claim. Id. at 14. 

II. Subject Matter Jurisdiction & Standard of Review

 Pursuant to 28 U.S.C. § 1581(c), the Court has exclusive jurisdiction over any civil

action commenced under section 516A of the Tariff Act of 1930, codified as amended at

§ 1516a, which provides for judicial review of, among other proceedings, a Section 129

determination. 19 U.S.C. § 1516a(a)(2)(B)(vii). In reviewing one of Commerce’s administrative

determinations, the Court will hold unlawful any determination that is “unsupported by
Consol. Court No. 07-00170 Page 11

 There are no issues of fact before the court.

8

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

§ 1516a(b)(1)(B)(i). 

This case presents the court with the question of whether Commerce’s actions are lawful

when measured by the provisions of the antidumping statutes and the statutory scheme passed by

Congress to encourage compliance with our international trading obligations. Specifically, it 8

requires the court to determine whether Commerce’s new interpretation of certain calculations in

our antidumping statutes are in accordance with law. The test for determining whether

Commerce’s interpretation and application of the antidumping statute comports with law is set

forth in the two-step analysis described in Chevron U.S.A., Inc. v. Natural Res. Def. Council,

Inc., 467 U.S. 837 (1984) (“Chevron”). The Court must first determine whether Congress’s

purpose and intent on the issue is clearly expressed in the statute. See Chevron, 467 U.S. at 842-

43. To ascertain Congress’s purpose and intent, the Court must employ the traditional tools of

statutory construction, looking first to the text of the statute and its plain meaning. See id. at 843

n.9. If the text provides an answer to the question before the court, that is the end of the matter. 

See id. at 842-43. Other available tools of statutory construction include the statute’s structure,

canons of statutory construction, and legislative history. See Windmill Int’l PTE., Ltd. v. United

States, 26 CIT 221, 223, 193 F. Supp. 2d 1303, 1306 (2002). If any of the tools of statutory

construction make Congress’s purpose or intent on the issue clear, then the Court and Commerce

must give effect to that unambiguously expressed intent. See Chevron, 467 U.S. at 842-43. 
Consol. Court No. 07-00170 Page 12

Only if the statute is unclear or ambiguous with respect to the precise question at issue

must the Court decide, under the second step of Chevron, whether Commerce’s construction of

the statute is permissible. See id. at 843. That inquiry essentially examines whether Commerce’s

interpretation of the statute is reasonable, and requires the Court to consider “the following nonexclusive list of factors: the express terms of the provisions at issue, the objectives of those

provisions and the objectives of the antidumping scheme as a whole.” Windmill Int’l PTE., Ltd.,

26 CIT at 223, 193 F. Supp. 2d at 1306. If Commerce’s choice “represents a reasonable

accommodation of the conflicting policies that were committed to the agency’s care by statute,”

then the Court should not disturb it “unless it appears from the statute or its legislative history

that the accommodation is not one that Congress would have sanctioned.” Chevron, 467 U.S. at

845 (quotations & citation omitted). To survive judicial scrutiny, Commerce’s construction must

be reasonable, but it 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). 

Importantly, the Court may not substitute its judgment for Commerce’s, provided that the agency

acted rationally. See Chevron, 467 U.S. at 843 n.11.

III. Discussion

Plaintiff and Plaintiff-Intervenors challenge three aspects of the Section 129

Determination. First, they argue that the Section 123 Determination, in which Commerce

explained that it would use offsetting in certain investigations, is itself contrary to law. 

Essentially, Plaintiff and Plaintiff-Intervenors contend that Congress’s intent and purpose on the

issue of offsetting is clear because (1) the texts of 19 U.S.C. §§ 1673c(b)(2), 1673c(c), 1677(34),
Consol. Court No. 07-00170 Page 13

1677(35)(A)-(B) and 1677f-1(d) demonstrate that Congress did not intend for Commerce to

engage in offsetting; (2) the denial of offsetting is necessary to give effect to the different

statutory methodologies for calculating dumping margins in investigations as they are described

in § 1677f-1(d) – a point of law allegedly recognized by Defendant and the WTO;

(3) Commerce’s reading of the term “exceeds” in certain investigations would render

§§ 1673c(b)(2), 1673c(c), and 1677f-1(d) meaningless; and (4) Federal Circuit precedent is not

controlling on the issue here. U.S. Steel Summ. J. Br. 7-23; Nucor Summ. J. Br. 8-22; Gallatin

Summ. J. Br. 6-32; ArcelorMittal Summ. J. Br. 19-28. Second, Plaintiff and Plaintiff-Intervenors

allege that the use of offsetting in the Section 129 proceeding was unlawful. Specifically,

Plaintiff and Plaintiff-Intervenors aver that Commerce acted contrary to law when it used an

allegedly illegal methodology – offsetting – to recalculate the weighted-average dumping margin

on the subject merchandise in the Section 129 proceeding. U.S. Steel Summ. J. Br. 7-23; Nucor

Summ. J. Br. 6, 8-22; Gallatin Summ. J. Br. 6-32; ArcelorMittal Summ. J. Br. 28. Third,

Plaintiff-Intervenors Nucor and AcrcelorMittal contend that Commerce erred when it declined to

consider their claims of targeted dumping during the Section 129 proceeding. Nucor Summ. J.

Br. 22-31; ArcelorMittal Summ. J. Br. 29-39.

Defendant, however, rejects these claims. Defendant argues that Plaintiff and PlaintiffIntervenors attempt to relitigate a legal issue previously settled by the Federal Circuit in Timken

Co. v. United States, 354 F.3d 1334 (Fed. Cir. 2004) (“Timken”) and in subsequent cases:

whether the several antidumping statutes require zeroing when Commerce calculates the

weighted-average dumping margin. Def. Br. 9. Defendant avers that this claim is foreclosed
Consol. Court No. 07-00170 Page 14

since Timken decided that zeroing is not required. Def. Br. 12-14. Even if the court should find

that the Federal Circuit precedent is not binding here, Defendant alleges that the interpretation of

the Section 123 Determination by Plaintiff and Plaintiff-Intervenors is overly broad and

erroneously assumes that Commerce’s change in policy applies to all types of price comparisons. 

Def. Br. 14-18. Defendant notes that the offsetting methodology does not apply universally, and

instead is limited to comparisons involving average-to-average prices in investigations. Def. Br.

14-18. Accordingly, in light of Commerce’s permissible reading of the antidumping statutes and

the Section 123 Determination, Defendant contends that the Section 129 Determination was

made in accordance with law. Def. Br. 18-22. To justify this action, Defendant specifically

states that it acted to implement an adverse WTO report and to harmonize certain U.S. practices

with its international obligations. Def. Br. 18-19. Finally, Defendant argues that Commerce

reasonably determined that the targeted dumping allegations raised by Plaintiff-Intervenors

Nucor and ArcelorMittal were untimely because those claims were not raised during the initial

investigation, as required by the pertinent regulations. Def. Br. 23-25.

A. Offsetting

It is within the province of the judiciary to interpret the law, and indeed the court has a

duty to do so under Article III of the U.S. Constitution when reviewing executive agency action

using the tenets established by Chevron. See Timex V.I., Inc. v. United States, 157 F.3d 879, 881

(Fed. Cir. 1998) (citing Marbury v. Madison, 5 U.S. (1 Cranch) 137, 177 (1803)). Under the first

step of Chevron, the court must decide whether §§ 1673c(b)(2), 1673c(c), 1677(34),

1677(35)(A)-(B), and 1677f-1(d) unambiguously prohibit the use of offsetting.
Consol. Court No. 07-00170 Page 15

 Since Timken, the Federal Circuit has heard several cases discussing the use of zeroing 9

in certain antidumping proceedings. See SKF USA, Inc. v. United States, 537 F.3d 1373 (Fed.

Cir. 2008); NSK Ltd. v. United States, 510 F.3d 1375 (Fed. Cir. 2007); Corus Staal BV v. United

States, 502 F.3d 1370 (Fed. Cir. 2007); Corus Staal BV v. Dep’t of Commerce, 395 F.3d 1343

(Fed. Cir. 2005) (“Corus I”). 

Just as the Federal Circuit has repeatedly found that the pertinent antidumping statutes do

not unambiguously reveal Congress’s position on the issue of zeroing, this court similarly finds 9

that a clear Congressional intent or purpose on the question of offsetting is absent from the

statutes at issue. According to § 1677(34), subject merchandise is “dumped” into the U.S. if it is

sold, or likely to be sold, at less than fair value. § 1677(34). That definition, on its face, merely

provides the core explanation for that term, which appears frequently throughout several

antidumping statutes. The term does not, however, speak to any one method for determining

whether sales are made fairly or unfairly, nor does it state the types of sales that Commerce must

consider when making an antidumping determination. In other words, the definition housed in

§ 1677(34) is limited, explicitly defining a term that describes the behavior which the

antidumping system aims to eradicate.

Section 1677(35) describes the procedure that Commerce must use to determine whether

sales of the subject merchandise are made at less than fair value. In reaching that determination,

Congress directs Commerce to make “a fair comparison . . . between the [EP] or [CEP] and

[NV].” § 1677b(a). To arrange a fair comparison Commerce must first calculate the dumping

margin, a term defined as “the amount by which the [NV] exceeds the [EP] or [CEP] of the

subject merchandise.” § 1677(35)(A). Where NV sales are less than EP or CEP sales, a negative

value dumping margin is the end product of the calculation. In contrast, a positive value
Consol. Court No. 07-00170 Page 16

dumping margin is the result of NV sales being greater than the EP or CEP sales. The statute

goes on to say that Commerce express the aggregate of the dumping margins for the subject

merchandise as a percentage, i.e. the weighted-average dumping margin, which is calculated by

“dividing the aggregate dumping margins determined for a specific exporter or producer by the

aggregate [EPs] and [CEPs] of such exporter or producer.” § 1677(35)(B). 

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 the whether 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 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 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. The language of

§ 1677(35)(A)-(B) merely provides the recipe for calculating the dumping margin and the

aggregate of those numbers – the weighted-average dumping margin – to ultimately determine

whether the sales at issue were fairly made. However, those statutes do not suggest that

Congress intended for certain values to fit within the definition of a “dumping margin” when

Commerce determines the weighted-average dumping margin. In other words, the central point

of Timken is that Congress, in crafting the statutory definitions of “dumping margin” and

“weighted-average dumping margin,” did not address whether Commerce must (1) employ a
Consol. Court No. 07-00170 Page 17

 The Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Rep. 10

No. 103-316 (1994), reprinted in 1994 U.S.C.C.A.N. 4040 (“SAA”), is also silent on the issue of

whether positive and negative value dumping margins may be used in calculating the weightedaverage dumping margin. The SAA is “an authoritative expression by the United States

concerning the interpretation and application of the Uruguay Round Agreements and [the

URAA] in any judicial proceeding in which a question arises concerning such interpretation or

application.” 19 U.S.C. § 3512(d). Absent from the text is any clear Congressional indication

that Commerce should consider only certain values as fitting within the definition of “dumping

margin,” or in making weighted-average dumping margin determinations. See SAA, H.R. Rep.

No. 103-316, at 819-20, 842-43, reprinted in 1994 U.S.C.C.A.N. at 4160-61, 4177-78. 

 Section 1673c(b)(2) provides for the suspension of an antidumping duty investigation if 11

all sales at less than fair value are eliminated, stating explicitly that Commerce may suspend an

investigation if the exporters of the subject merchandise who account for substantially all of the

imports of that merchandise agree to (1) cease exports of the merchandise to the U.S., or (2)

revise their prices to eliminate completely any amount by which the NV exceeds the EP or the

CEP of the merchandise. § 1673c(b)(1)-(2). Under extraordinary circumstances, Commerce may

suspend an investigation if (1) “the exporters of the subject merchandise who account for

substantially all of the imports of that merchandise” into the U.S. agree to revise prices, (2) that

agreement eliminates the injurious effect of the dumped merchandise, (3) the subject imports do

not undercut the price levels of domestic like products, and (4) the estimated dumping margin of

each entry of each exporter to the agreement does not exceed 15 percent of the weighted-average

dumping margin for all dumped entries made by the exporters during the course of the

investigation. § 1673c(c)(1)(A)-(B). Finally, in antidumping investigations, § 1677f-1(d)

explains that NV and EP (or CEP) shall normally be compared on a weighted average-toweighted average, or individual transaction-to-individual transaction, basis. § 1677fcertain 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. Therefore, because the Federal Circuit in 10

Timken found that the statute is unclear as to which values fit within the definition of the term

“dumping margin,” the statutory text does not unambiguously compel the court to find that

Commerce’s use of offsetting is prohibited.

Moreover, the language in §§ 1673c(b)(2), 1673c(c), and 1677f-1(d) does not clarify

Congress’s intent on this issue. Plaintiff and Plaintiff-Intervenors cite to these sections as 11
Consol. Court No. 07-00170 Page 18

1(d)(1)(A)(i)-(ii). An exception is provided where there is a pattern of EPs that differ

significantly among purchasers, regions, or periods of time, and in those cases Commerce may

compare NV and EP (or CEP) on a weighted average-to-individual transaction basis. § 1677f1(d)(1)(B). 

providing further evidence that only those dumping margins that result in a positive value fit

within the definition of “dumping margin” in § 1677(35)(A). That assertion, however, is

incorrect. Sections 1673c(b)(2), 1673c(c), and 1677f-1(d) state that Commerce may undertake a

particular action in an antidumping investigation if certain conditions are present. Those

provisions are unrelated to the inquiry here, leaving unanswered the question of whether

Commerce must consider only certain values when it calculates dumping margins for the subject

merchandise. Therefore, with §§ 1673c(b)(2), 1673c(c), and 1677f-1(d) being inapplicable, the

Federal Circuit’s reading of § 1677(35)(A)-(B) in Timken and Corus I controls the court’s

analysis here. 

Because 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. In

recognition of Commerce’s expertise in the field of antidumping law, the court owes substantial

deference to the agency when it interprets an ambiguous antidumping statute. See Nucor Corp. v.

United States, 32 CIT ___, ___, 594 F. Supp. 2d 1320, 1332 (2008). The 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, particularly

when it allows the Executive Branch to speak on behalf of the U.S. to the international
Consol. Court No. 07-00170 Page 19

 “Foreign commerce is pre-eminently a matter of national concern.” Japan Line, Ltd. v. 12

County of Los Angeles, 441 U.S. 434, 448 (1979). The U.S. Constitution endows Congress with

the power to regulate commerce with “foreign Nations,” U.S. CONST. art. I, § 8, cl. 3, but the

Legislative Branch may delegate that authority to executive agencies both expressly and

impliedly:

Where 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. [Chevron], 467 U.S. at 843-44. In other circumstances, Congress

may impliedly authorize an agency to pronounce its judgment on an issue with the

force of law. See id. at 844; Cathedral Candle Co. v. United States, 400 F.3d

1352, 1361 (Fed. Cir. 2005).

 

Mittal Canada, Inc. v. United States, 30 CIT 1565, 1567, 461 F. Supp. 2d 1325, 1328 (2006). 

Commerce’s authority to interpret and implement certain practices is clear in the arena of

antidumping law where “Congress would expect the agency to be able to speak with the force of

law when it addresses ambiguity in the statute or fills a space in the enacted law, even one about

which ‘Congress did not actually have an intent’ as to a particular result.” Mittal Canada, Inc.,

30 CIT at 1567-68, 461 F. Supp. 2d at 1328 (citing United States v. Mead Corp., 533 U.S. 218,

229 (2001)); see also Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1379-80

(Fed. Cir. 2001) (according Chevron deference to Commerce’s interpretation of ambiguous

statutory terms in the course of an antidumping determination).

community on matters of trade and commerce. See Crosby v. Nat’l Foreign Trade Council,

12

530 U.S. 363, 381-82 (2000) (stating that it is the duty of the Executive Branch to present a

coherent position on behalf of the national economy); Fed.-Mogul Corp. v. United States, 63

F.3d 1572, 1582 (Fed. Cir. 1995).

The court finds that both Commerce’s determination and its reading of the cited statutes

are reasonable. In reaching the Section 123 Determination, Commerce worked within the

framework established by Congress to accord U.S. practices with the nation’s international trade

obligations. Congress anticipated that the U.S. would need to take action to make domestic law

comport with those international trade obligations, specifically requiring the close cooperation of

the Executive and Legislative Branches to determine how the U.S. would change its practices. 
Consol. Court No. 07-00170 Page 20

 Equally telling here is Congress’s tacit approval of the new offsetting methodology. 

13

Even after extensive consultations between the Executive and Legislative Branches, Congress

had the opportunity to indicate its disagreement with Commerce’s adoption of the new rule. 

§ 3533(g)(3). Congress, however, declined to do so, and there is no evidence to suggest that it

disagrees with Commerce’s use of the new policy. 

§ 3533(g). The Section 123 Determination is the result of such a careful balancing act, whereby

the Executive Branch sought to facilitate collegial international trade relationships while

continuing to afford domestic industries the protection they need to compete when unfairly

traded merchandise is present in the marketplace. Commerce solicited, received, and considered

comments from members of the private international trade community in accordance with the

statute, and followed the agency’s regular practice and procedures in so doing. Throughout the

Section 123 Determination, Commerce stated that its change in policy was necessary to

harmonize its practices with the international obligations of the U.S. See Section 123

Determination, 71 Fed. Reg. at 77,722 (“This final modification is necessary to implement the

recommendations of the [WTO] Dispute Settlement Body.”); Id. at 77,723 (“[Commerce] is

doing so in response to the [Panel Report], following the procedures set forth in section 123 of

the URAA.”); Id. at 77,724 (“This exercise is necessary to implement the [Panel Report] within

the reasonable period of time negotiated by the United States.”). These statements demonstrate

that the Executive Branch, through its representatives at the USTR and Commerce, reasonably

worked in concert with Congress under the applicable statutory scheme to promote comity within

the international trade community and conform domestic practices with U.S. international trade

obligations.

13
Consol. Court No. 07-00170 Page 21

Most important, Commerce does not offended the central aim of the antidumping laws by

interpreting § 1677(35)(A)-(B) to permit offsetting. The principal purpose of the antidumping

laws is to protect domestic industries from foreign manufactured goods that are sold with

injurious effect in the U.S. at prices below the fair market value of those goods in their home

market. See Sango Int’l, L.P., 484 F.3d at 1372. However, these principles are meant to level

the playing field between foreign and domestic manufacturers of like merchandise, not give an

“unfair advantage to the domestic industry . . . .” Peer Bearing Co., 25 CIT at 1221, 182 F.

Supp. 2d at 1310. While the Section 123 Determination does alter the way Commerce calculates

weighted-average dumping margins in certain investigations, it does not leave potentially injured

domestic industries without any recourse. Indeed, the Section 123 Determination does not

eliminate the central weapon used to protect domestic industries from dumped merchandise –

antidumping duties – but rather, merely amends the manner in which those duties are calculated

in certain proceedings. That the Section 123 Determination requires Commerce to consider both

fair and less than fair value sales in investigations involving average-to-average price

comparisons makes the analysis of the data for sales of the foreign and domestic merchandise

arguably more fair than it was under the old methodology of zeroing. In using the new offsetting

methodology, Commerce must consider all sales in certain investigations, and take a more

complete view of the market for the subject merchandise before assessing whether antidumping

duties should be imposed, if at all. Essentially, the offsetting methodology forces Commerce to

do more than look for particular unfairly made sales, requiring instead that the agency consider

the market as a whole when engaging in its statutorily assigned duty of determining whether
Consol. Court No. 07-00170 Page 22

 To be sure, the discussion here on any harm that the Section 123 Determination may 14

have inflicted is on the microeconomic scale within the domestic steel industry itself, and does

not account for any damage caused by macroeconomic developments in the general global

market.

 “Profits are net revenues, or the difference between total sales and total costs.” Id. at 15

27.

dumping has occurred in the domestic industry at issue. Thus, Commerce’s construction of the

pertinent statutes, which permit the use of both positive and negative value dumping margins in

calculating the weighted-average dumping margin, is reasonable.

While the court finds that the Section 123 Determination is in accordance with law, it

also recognizes that Commerce likely altered competitive conditions in every domestic industry

where an antidumping proceeding was then in progress or thereafter initiated, including the U.S.

steel industry. A market, in the simplest of terms, “is a mechanism through which buyers and 14

sellers interact to determine prices and exchange goods and services.” PAUL A. SAMUELSON

& WILLIAM D. NORDHAUS, ECONOMICS 26 (18th ed. 2005). Of all the components that shape

competition within the marketplace, prices are generally the most influential, effectively

coordinating “the decisions of producers and consumers in a market.” SAMUELSON

& NORDHAUS at 27. It is no secret that a difference in price will drive some consumers to

purchase their goods from one seller over another, thereby causing economic injury in the form

of lost profits to the manufacturer selling at a higher price. See id. at 27-28. The government 15

action affected how domestic manufacturers priced certain goods within their respective markets

to remain competitive. The Section 123 Determination therefore changed the market conditions

for domestic producers, who may have relied on Commerce’s use of zeroing in past antidumping
Consol. Court No. 07-00170 Page 23

 In original antidumping investigations, Commerce will normally use the average-to- 16

average method to calculate dumping margins for the subject merchandise. 19 C.F.R.

§ 351.414(c)(1). The agency may only use the transaction-to-transaction method in “unusual

situations, such as when there are very few sales of subject merchandise and the merchandise

sold in each market is identical or very similar[,] or is custom-made.” Id. 

 Defendant notes that neither the Section 123 Determination, nor its application to the 17

Section 129 Determination, has prevented Commerce from applying the transaction-totransaction methodology or the targeted dumping provision with the use of the zeroing

methodology. Def. Br. 16-17.

proceedings to determine market prices. Now, however, those domestic producers may need to

compete more rigorously to maintain or gain market share, to discard established sales patterns

and create new business models, and to adopt new price practices to account for changing

competitive conditions within their respective markets. 

However, as the court notes above, Plaintiff and Plaintiff-Intervenors are not totally

foreclosed from seeking the kind of protection they were afforded under the old zeroing

methodology. In the Section 123 Determination, Commerce specifically noted that its decision is

limited to “average-to-average comparisons in investigations” and that the determination did not

reach “any other comparison methodology or any other segment of an antidumping proceeding

. . . .” Section 123 Determination, 71 Fed. Reg. at 77,724. Indeed, Commerce has implemented

no change with regard to the use of zeroing for the individual transaction-to-individual

transaction methodology outlined in § 1677f-1(d)(1)(A)(ii), or the weighted average-to- 16

transaction targeted dumping methodology described in § 1677f-1(d)(1)(B). Accordingly, a

petitioner may find that it is most prudent to solicit Commerce to use the transaction-totransaction methodology in the pertinent investigation, or to assert a claim of targeted dumping

when applicable in future petitions to remedy their alleged injuries.17
Consol. Court No. 07-00170 Page 24

Contrary to Plaintiff and Plaintiff-Intervenors’ allegations, Commerce’s reading of the

term “exceeds” in § 1677(35)(A) in the Section 123 Determination does not render

§§ 1673c(b)(2), 1673c(c), and 1677f-1(d) meaningless. It is well established that “there is a

natural presumption that identical words used in different parts of the same act are intended to

have the same meaning.” Helvering v. Stockholms Enskilda Bank, 293 U.S. 84, 87 (1934)

(citation & quotations omitted). However, that “presumption readily yields to the controlling

force of the circumstance that the words, though in the same act, are found in such dissimilar

connections as to warrant the conclusion that they were employed in different parts of the act

with different intent.” Helvering, 293 U.S. at 87 (citation omitted). The Federal Circuit in

Timken made clear that Congress’s intent on the meaning of the term “dumping margin” and the

use of “exceeds” therein is unclear, thereby requiring the court to afford Commerce the deference

it is due under Chevron. See Timken, 354 F.3d at 1341-43. Here, Commerce notes that it

interprets § 1677(35)(A) and the term “exceeds” differently in investigations involving averageto-average prices comparisons than it does in all other antidumping proceedings so as to ensure

that its practices comply with U.S. international trade obligations. See Section 123

Determination, 71 Fed. Reg. at 77,724. That Commerce repeatedly expressed its intent to (1)

limit the scope of the Section 123 Determination and (2) restrict its reading of the term “exceeds”

only to the nomenclature used in specific types of investigations suggests that Commerce did not

intend to amend the agency’s understanding of the term “exceeds” as it appears in other

antidumping statutes. In light of those clear statements and the foreign policy implications of
Consol. Court No. 07-00170 Page 25

 Plaintiff-Intervenor Gallatin also argues that Commerce has not provided a reasonable 18

basis for distinguishing the term “dumping margin” as it applies in the present proceeding from

the use of that term in administrative reviews. Gallatin Summ. J. Br. 28-32. The court disagrees,

emphasizing again that it must afford Commerce the deference it is due under Chevron in the

presence of an ambiguous statute. Therefore, in light of Commerce’s compliance with the

procedures outlined in § 3538(g), the limited scope of the proceeding under Section 123, and the

justifications provided by the agency for taking such action, the court affirms the Section 123

Determination as reasonable.

this particular antidumping proceeding, the court recognizes that Commerce’s interpretation of

the term “exceeds” in the Section 123 Determination is permissible.18

The argument that the Section 123 Determination undercuts the effect of the different

statutory methodologies for calculating dumping margins in investigations as they are described

in § 1677f-1(d) is an attempt to relitigate an issue decided by the Court in Dorbest Ltd. v. United

States, 30 CIT 1671, 462 F. Supp. 2d 1262 (2006) (“Dorbest”). The plaintiffs in that case

brought an argument nearly identical to the one raised here regarding § 1677f-1(d). See Dorbest,

30 CIT at 1735, 462 F. Supp. 2d at 1316. Here, Plaintiff specifically contends that “it was

Congress’[s] intent that the two alternative comparison methodologies in 19 U.S.C. § 1677f-1(d)

yield different results.” U.S. Steel Summ. J. Br. 15. When Commerce uses offsetting, U.S. Steel

argues that the results of the two comparison methodologies will always be the same, a

consequence which allegedly nullifies Congress’s intent that the different comparison formulas

achieve distinct results. U.S. Steel Summ. J. Br. 15-19, Ex. 1. The problem for Plaintiff and

Plaintiff-Intervenors here, one that similarly deterred the claimants in Dorbest, is that the Federal

Circuit in Timken and its progeny make clear that the starting point for the debate on this issue

lies in the text of § 1677(35)(A)-(B), which has unequivocally been held to be ambiguous as to

the use of positive and negative value dumping margins in calculating the weighted-average
Consol. Court No. 07-00170 Page 26

dumping margin. When a court finds a provision to be ambiguous as to the specific issue before

the court, Chevron requires that the agency action be afforded due deference so long as such

action is reasonable. For the reasons explained herein, the Section 123 Determination is in

accord with law and is reasonable. Accordingly, given that ambiguity and the controlling Federal

Circuit precedent, the court agrees with the statutory construction analysis in Dorbest, and

therefore affords Commerce’s reasonable reading of § 1677(35)(A)-(B) the deference it is due

under Chevron. See id.

In sum, the antidumping statutes are unclear as to the use of positive and negative value

dumping margins in weighted-average dumping margin calculations. Commerce complied with

the requirements enumerated in § 3533(g), and its construction of the pertinent statutory

provisions to permit the use of offsetting is reasonable here. Because the Section 123

Determination is in accordance with law, the court finds that Commerce’s use of offsetting in the

Section 129 Determination was not unlawful. Therefore, the court affirms Commerce’s Section

129 Determination given that (1) the Section 123 Determination is in accordance with law, and

(2) the justification for Commerce’s actions under Section 129 is reasonable.

B. Targeted Dumping

The final question before the court is whether Commerce correctly declined to entertain

the request for a targeted dumping analysis made by Plaintiff-Intervenors Nucor and

ArcelorMittal. Targeted dumping occurs where a foreign exporter or producer selectively sells

merchandise at less than fair value in certain product lines, to certain customers, regions, or at

certain times of the year. § 1677f-1(d)(1)(B). The Code of Federal Regulations specify that
Consol. Court No. 07-00170 Page 27

Commerce normally will examine only targeted dumping described in an allegation filed by a

petitioner no later than thirty days before the scheduled date of the preliminary determination in

an original investigation. 19 C.F.R. § 351.301(d)(5) (as reserved by Withdrawal of the

Regulatory Provisions Governing Targeted Dumping in Antidumping Duty Investigations, 73

Fed. Reg. 74,930, 74,930 (Dep’t Commerce Dec. 10, 2008). However, Commerce has noted that

it is flexible with that deadline where good cause is shown, such as in investigations where “the

timing of responses does not permit adequate time for analysis . . . .” Antidumping Duties;

Countervailing Duties, 62 Fed. Reg. 27,296, 27,336 (Dep’t Commerce May 19, 1997). 

Commerce properly considered Nucor and ArcelorMittal’s allegations of targeted

dumping to be untimely. “Commerce has broad discretion to establish its own rules governing

administrative procedures, including the establishment and enforcement of time limits . . . .” 

Reiner Brach GmbH & Co. KG v. United States, 26 CIT 549, 559, 206 F. Supp. 2d 1323, 1334

(2002) (citation omitted). Under that authority, Commerce “must be permitted to enforce the

time frame provided in its regulations,” and the rule controlling the time limits under which a

party may allege targeted dumping, absent a showing of good cause, is no exception. See Yantai

Timken Co., Ltd. v. United States, 31 CIT ___, ___, 521 F. Supp. 2d 1356, 1371 (2007). Here,

Plaintiff-Intervenors did not raise allegations of targeted dumping in the original investigation,

but instead first asserted them during the Section 129 proceeding, several years after the

conclusion of the original investigation. In declining to examine the targeted dumping

allegations, Commerce rightly explained that “there was ample time during the original

investigation[] for domestic interested parties to analyze the responses and make targeted
Consol. Court No. 07-00170 Page 28

 As a matter of fact, the issue of positive and negative value dumping margins was 19

already a topic for discussion in administrative and judicial fora at the time of the original

investigation on the subject merchandise. See, e.g., Bowe Passat Reinigungs-Und

Waschereitechnik Gmbh v. United States, 20 CIT 558, 570-72, 926 F. Supp. 1138, 1149-50

(1996). 

dumping allegations.” Section 129 Determination Issues and Decision Memorandum at 14. Put

simply, Nucor and ArcelorMittal missed a deadline clearly stated in the pertinent regulation, and

because no good cause excuses their tardiness, Commerce correctly disregarded their targeted

dumping claims in the Section 129 proceeding. 

That Nucor and ArcelorMittal relied on the continued application of Commerce’s zeroing

methodology to account for any targeted dumping does not serve as a good cause to toll the

deadline, nor does it suggest that Commerce acted arbitrarily here in denying the PlaintiffIntervenors’ request. Importantly, Commerce’s modification of its methodology for calculating 19

weighted-average dumping margins in certain investigations addresses provisions that are

distinct and independent from those discussing targeted dumping. Commerce limited the Section

123 Determination to those particular investigations that were the subject of the Panel Report

and all then pending and future investigations, whereas the targeted dumping provisions concern

those situations where a foreign exporter or producer selectively sells merchandise at less than

fair value in certain product lines, to certain customers, regions, or at certain times of the year. In

other words, the Section 123 Determination did not affect the targeted dumping scheme, and if

the domestic interested parties believed that targeted dumping had occurred, they had the

opportunity to make such an allegation in a timely manner during the initial investigation. The

failure to make such a claim because it would have been “pointless” is hardly a reason for
Consol. Court No. 07-00170 Page 29

Commerce to find good cause to extend the deadline. See Nucor Summ. J. Br. 24. Even if it

would have been difficult for Plaintiff-Intervenors to demonstrate one of the necessary

prerequisites to show targeted dumping, difficulty has never before foreclosed a party from

making such a claim or been a reason to excuse the timely raising of that claim.

Another important consideration here is that Nucor and ArcelorMittal’s claim of targeted

dumping does not fit within the scope of the Section 129 Determination. Commerce explicitly

stated that the sole purpose for initiating the Section 129 proceeding was to conform certain

agency determinations with the findings in the Panel Report. See Section 129 Determination, 72

Fed. Reg. at 25,262. More specifically, Commerce noted that in the Section 129 proceeding it

sought only to recalculate the weighted-average dumping margin for the entries of goods subject

to particular antidumping investigations using a new methodology – offsetting – described in the

Section 123 Determination. See id. “It is unclear whether Congress intended to limit the scope

of [S]ection 129 [of the URAA] to include only issues found to violate the WTO agreements or

to more broadly include other potential issues,” and that is precisely the kind of ambiguity that

requires the court to give Commerce due deference under Chevron to reasonably interpret the

statute at issue. ThyssenKrupp Acciai Speciali, Terni S.P.A. v. United States, 33 CIT ___, ___,

602 F. Supp. 2d 1362, 1367 (2009). The limited scope of the Section 129 Determination is in

harmony with the overreaching goal of the statute – to make the agency determination at issue

consistent with the nation’s international trade obligations – and is therefore a reasonable reading

of Section 129 of the URAA. See ThyssenKrupp Acciai Speciali, Terni S.P.A., 33 CIT at ___,

602 F. Supp. 2d at 1367-68. Even though Commerce considered Nucor and ArcelorMittal’s
Consol. Court No. 07-00170 Page 30

concerns on targeted dumping, the agency was not required to do so in making the Section 129

Determination, and therefore it acted reasonably in declining to verify such allegations.

Finally, ArcelorMittal’s claim that Commerce has acted inconsistently with its past

practice is meritless. Even assuming that Commerce’s other Section 129 proceedings are

factually identical to the case here, as a matter of law, each agency determination is sui generis,

involving a unique combination and interaction of many variables, and therefore a prior

administrative determination is not legally binding on other reviews before this court. See Nucor

Corp. v. United States, 414 F.3d 1331, 1340 (Fed. Cir. 2005). Therefore, for the aforementioned

reasons, Commerce reasonably rejected the allegations of Nucor and ArcelorMittal regarding

targeted dumping in the Section 129 Determination.

IV. Conclusion

Congress’s intent and purpose on the issue of offsetting cannot be unambiguously

ascertained under the several antidumping laws. Therefore, the court must afford deference to

Commerce’s interpretation of the statutes at issue so long as the agency’s reading is permissible. 

The court finds that Commerce properly followed the procedures set forth in § 3533(g) to amend

a practice that was found to be inconsistent with the nation’s trade obligations. The agency’s

construction of the pertinent statutes and justification therefor are both persuasive and

reasonable, and thus the court holds that Commerce’s Section 123 Determination and the Section

129 Determination are in accordance with law. The court also affirms Commerce’s

determination not to consider claims of targeted dumping because such allegations were untimely
Consol. Court No. 07-00170 Page 31

and outside the scope of the Section 129 proceeding, and because there is no good cause to

excuse their tardy claim.

Dated: July 20, 2009 /s/ Judith M. Barzilay 

New York, NY Judith M. Barzilay, Judge