United States Steel Corp. (“U.S. Steel”) and Nucor Corp. (“Nucor” and collectively “Appellants”) appeal from the decision of the United States Court of International Trade upholding the Department of Commerce’s (“Commerce’s”) determination of antidumping duties against Coras Staal (“Coras”) for imports of hot-rolled carbon steel flat products from the Netherlands.
U.S. Steel Corp. v. United States,
Because the Court of International Trade properly found that Commerce’s interpretation of its governing statute is in accordance with law, we affirm.
Background
Under the antidumping statute, Commerce imposes duties on imported merchandise that “is being, or is likely to be, sold in the United States at less than fair value” and harms domestic industry. 19 U.S.C. § 1673. Sales at less than fair value are those sales for which the “normal value” (the price a producer charges in its home market) exceeds the “export price” (the price of the product in the United States) or “constructed export price.”
Id.
§ 1677(35)(A).
1
Commerce then calculates a “dumping margin” for a particular product subject to review, equal to “the amount by which the normal value exceeds the export price or constructed export price.”
Id.; see also Koyo Seiko Co. v. United States,
In November 2001, Commerce issued an antidumping duty order against Coras imposing a dumping margin of 2.59%.
Certain Hot-Rolled Carbon Steel Flat Products from the Netherlands,
66 Fed.Reg. 59,565 (Dep’t Commerce Nov. 29, 2001) (amended final determination of sales at less than fair value). In determining the dumping margin, Commerce adhered to its existing practice at the time of “zeroing,” by which Commerce assigns a value of zero to sales margins of merchandise sold at or above fair value prices.
See Corus Staal BV v. Dep’t of Commerce,
*1354 However, the U.S. practice of zeroing— both as a general methodology and as applied in specific investigations, including the investigation underlying this appeal— was successfully challenged by the European Communities before the World Trade Organization’s (“WTO’s”) Dispute Settlement Body. Panel Report, United States— Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/R (October 31, 2005), and the challenge was subsequently upheld by that organization’s Appellate Body, United States — Laws, Regulations and Methodology for Calculating Dumping Margins (“Zeroing”), WT/DS294/R (May 15, 2006) (upholding the Dispute Settlement Panel’s finding that the United States acted inconsistently with Article 9.3 of the Anti-Dumping Agreement and Article VI:2 of the General Agreement on Tariffs and Trade 1994). The investigation of hot-rolled steel from the Netherlands was one of the 15 investigations challenged.
Commerce responded to the adverse WTO ruling that zeroing is inconsistent with United States obligations under the Antidumping Duty Agreement according to two administrative procedures, laid out in the Uruguay Round Agreements Act (“URAA”). See 19 U.S.C. § 3533 (“Section 123”) and 19 U.S.C. § 3538 (“Section 129”). Section 123 provides, in relevant part, that
Promptly after the circulation of a report of a panel or of the Appellate Body to WTO members in a proceeding described in subsection (d) of this section, the Trade Representative shall—
(1) notify the appropriate congressional committees of the report;
(2) in the case of a report of a panel, consult with the appropriate congressional committees concerning the nature of any appeal that may be taken of the report; and
(3)if the report is adverse to the United States, consult with the appropriate congressional committees concerning whether to implement the report’s recommendation and, if so, the manner of such implementation and the period of time needed for such implementation.
19 U.S.C. § 3533(f). The statute continues by listing the requirements for agency action:
In any case in which a dispute settlement panel or the Appellate Body finds in its report that a regulation or practice of a department or agency of the United States is inconsistent with any of the Uruguay Round Agreements, that regulation or practice may not be amended, rescinded, or otherwise modified in the implementation of such report unless and until—
(D) the Trade Representative has submitted to the appropriate congressional committees a report describing the proposed modification, the reasons for the modification, and a summary of the advice obtained under subparagraph (B) with respect to the modification;
(E) the Trade Representative and the head of the relevant department or agency have consulted with the appropriate congressional committees on the proposed contents of the final rule or other modification....
19 U.S.C. § 3533(g).
Section 123 describes how Commerce and the United States Trade Representative are to implement an adverse report from the WTO. Pursuant to Section 123, the United States Trade Representative consulted with appropriate Congressional committees and private sector committees, and Commerce provided for public comment before determining whether and how to change its practice. Following those consultations, Commerce determined that *1355 it would cease its zeroing practice in new and pending investigations using average-to-average comparison methodology. See Antidumping Proceedings: Calculation of the Weighted Average Dumping Margin During an Antidumping Duty Investigation; Final Modification, 71 Fed.Reg. 77, 722 (Dec. 27, 2006) (“Section 123 Determination”). 2 Instead, Commerce determined to use a methodology of “offsetting,” pursuant to which sales made at less than fair value are offset by those made above fair value. This means that some of the dumping margins used to calculate a weighted-average dumping margin will be negative.
The other relevant statutory section, section 129, provides in relevant part as follows:
Promptly after a report by a dispute settlement panel or the Appellate Body is issued that contains findings that an action by the administering authority in a proceeding under title VII of the Tariff Act of 1930 ... is not in conformity with the obligations of the United States under the Antidumping Agreement ..., the Trade Representative shall consult with the administering authority and the congressional committees on the matter.
(2) Determination by administering authority
Notwithstanding any provision of the Tariff Act of 1930 ..., the administering authority shall, within 180 days after receipt of a written request from the Trade Representative, issue a determination in connection with the particular proceeding that would render the administering authority’s action described in paragraph (1) not inconsistent with the findings of the panel or the Appellate Body.
(3) Consultations before implementation Before the administering authority implements any determination under paragraph (2), the Trade Representative shall consult with the administering authority and the congressional committees with respect to such determination.
(4)Implementation of determination
The Trade Representative may, after consulting with the administering authority and the congressional committees under paragraph (3), direct the administering authority to implement, in whole or in part, the determination made under paragraph (2).
19 U.S.C. § 3538(b).
Section 129 applies to specific administrative determinations that are the subject of a WTO dispute. Pursuant to Section 129, following an adverse WTO ruling on particular investigations, the United States Trade Representative must consult with Commerce and with Congress, after which it may instruct Commerce to issue a new decision “not inconsistent with the findings of the [WTO].” 19 U.S.C. § 3538(b)(2). Here, pursuant to Section 129, Commerce applied its new methodology to the investigation of hot-rolled steel from the Netherlands. Under its offsetting methodology, Commerce found that the resulting dumping margin was de minimis. As a result, Commerce announced that it would revoke the antidumping duty order in that investigation. Implementation of the Findings of the WTO Panel in US-Zeroing (EC): Notice of Determinations Under Section 129 of the Uruguay Round Agreements Act and Revocations and Partial Revocations of Certain Antidumping Duty Orders, 72 Fed.Reg. 25,261, 25,264 (Dep’t of Commerce May 4, 2007) (“Section 129 Determination”).
*1356
Four separate actions were filed at the Court of International Trade, challenging Commerce’s determinations. The actions were consolidated, and the challenges brought pursuant to section 123 were dismissed for lack of jurisdiction.
U.S. Steel Corp. v. United States,
In its analysis of the consolidated challenge to the § 129 determinations, the Court of International Trade upheld Commerce’s determinations, concluding that they were in accordance with law.
U.S. Steel,
The Court of International Trade upheld as reasonable Commerce’s interpretation of the statute to use offsetting in average-to-average comparisons of original investigations.
U.S. Steel,
The Court of International Trade noted that Commerce’s newly-implemented methodology was limited to average-to-average comparisons — those situations where U.S. sales of a particular class of *1357 product are grouped together before being compared with home market sales, similarly grouped together. Id. at 1214. The clear indication is that the agency likely will continue to use zeroing methodology for individual-to-individual transaction comparisons, made pursuant to § 1677f-1(d)(1)(A)(ii), or for weighted average-to-individual transaction comparisons aimed at counteracting targeted dumping, pursuant to § 1677f — 1(d)(1)(B). Thus, the court reasoned, Commerce’s interpretation does not render §§ 1673c(b)(2), 1673c(c), and 1677f-1(d) meaningless. Id. at 1215.
The government timely appealed. We have jurisdiction pursuant to 28 U.S.C. § 1295(a)(5).
Discussion
We review the decision of the Court of International Trade
de novo,
“applying] anew the same standard used by the court, and [we] will uphold Commerce’s determination unless it is unsupported by substantial evidence on the record, or otherwise not in accordance with law.”
Mittal Steel Point Lisas Ltd. v. United States,
I.
As a preliminary matter, Corus raises a jurisdictional argument, suggesting that the Court of International Trade improperly entertained claims challenging Commerce’s Section 123 Determination. Corus then argues that any affirmance of the court’s decision should be without reference to the Section 123 Determination. Corus relies on the Court of International Trade’s jurisdictional statute, 28 U.S.C. § 1581(c), which allows it to hear actions brought under 19 U.S.C. § 1516a. That section provides for review of Section 129 determinations, but not Section 123 determinations, according to Corus. Corus further argues that the Section 123 Determination was not at issue in this case, because it announced a policy to be applied to future investigations and reviews in addition to those then pending. However, the investigations specifically challenged before the WTO were already complete, and, as such, were only challenged in the context of Section 129 proceedings. As a result, Corus argues, the court erred in hearing U.S. Steel’s challenge to the offsetting methodology announced in its Section 123 Determination.
The government’s position is that the Court of International Trade correctly found that it has jurisdiction only under 28 *1358 U.S.C. § 1581(c), and thus could only review the Section 129 Determination, not the Section 123 Determination. The government contends that the court only discussed the substance of the Section 123 Determination in the context of the application of its announced methodology to the Section 129 Determination. As a result, the government maintains that the court exercised its jurisdiction correctly.
Appellants argue in their reply briefs that we may properly consider whether the Section 123 Determination is unlawful on its face, because the Section 123 Determination was applied to the Section 129 Determination at issue here.
We conclude that the Court of International Trade properly exercised its jurisdiction in this case, pursuant to 28 U.S.C. § 1581(c). Appellants correctly point out that the issues and decision memorandum accompanying the Section 129 Determination states that Commerce is “conducting ‘Section 129 Determinations’ with respect to twelve different antidumping investigations ... and applying the [Section 123 Determination] to those proceedings.” J.A. 805. We agree with the government’s reading of the court’s decision. To begin with, the court dismissed the cases directly challenging the Section 123 Determination, having found that alternative adequate relief was available in the current action challenging the Section 129 Determination.
U.S. Steel Corp.,
II.
We turn now to the substance of the case. Nucor argues that the anti-dumping statute is unambiguous and requires that Commerce use a zeroing methodology. Nucor argues that the Timken court erred in finding that the term “exceeds” is ambiguous; therefore, it argues, a dumping margin, as defined by 19 U.S.C. § 1677(35)(A), must have a positive value. In support of that view, Nucor notes that the term “exceeds” is used elsewhere in the Tariff Act to mean that one thing is greater than another, rather than indicating the difference between the two. In addition, Nucor argues that the term is not ambiguous, that lexicographical sources confirm that it is not ambiguous, and that the Timken court’s decision was logically flawed. As a result, Nucor suggests that this court should revisit Timken, recognizing that any such reconsideration would have to be en banc.
Both Nucor and U.S. Steel argue that 19 U.S.C. § 1677f-l(d) indicates Congress’s clear intent that Commerce implement a zeroing methodology, although the bases for their arguments differ slightly from each other. Section 1677f-1(d) describes how Commerce is to determine a weighted average dumping margin. Section 1677f-1(d)(1)(A) prescribes use of average-to-average comparisons and individual-to-individual transaction comparisons in normal investigations. 3 In addition, the statute *1359 provides for an exception under which Commerce may use average-to-individual transaction comparisons in situations where Commerce finds targeted dumping (situations where comparable merchandise “differ[s] significantly among purchasers, regions, or periods of time”). 19 U.S.C. § 1677f-1(d)(1)(B).
U.S. Steel argues the average-to-average and average-to-individual methodologies are meant for different situations. However, absent zeroing, both methodologies result in identical dumping margins. As a result, U.S. Steel argues, the provisions of § 1677f-l(d) are rendered meaningless by an interpretation that does not require zeroing, making clear that Congress intended the use of zeroing.
Both Appellants rely on the negotiating history of the General Agreement on Tariffs and Trade Multilateral Trade Negotiations for the Uruguay Round, which led to the enactment of the URAA. Under the 1930 Tariff Act, Commerce developed a practice of comparing weighted average normal values to individual U.S. transaction prices — or an average-to-individual transaction methodology — to determine dumping margins. The United States attempted to retain its average-to-individual transaction methodology during the Uruguay Round negotiations, but ultimately agreed to use of that methodology only for situations of targeted dumping (as laid out in the exception in 19 U.S.C. § 1677f-1(d)(1)(B)). The Statement of Administrative Action accordingly specified that as a “departure from current U.S. law,” Commerce should now generally use average-to-average comparisons. SAA at 810, 842-43, reprinted in 1994 U.S.C.C.A.N. at 4153, 4178. This, according to U.S. Steel, underscores its argument that Congress intended the different methodologies to be used in different situations, with the clear implication that Congress intended the results to be different under those different methodologies. This clear intent for different results under different methodologies, U.S. Steel argues, results in the statute clearly requiring zeroing.
Nucor, in contrast, compares the preURAA. methodology with the post-URAA methodology, rather than comparing the different subsections of § 1677f-l(d). Nu-cor argues that because Congress believed it was changing Commerce’s practice by implementing the URAA, and because, without zeroing, the pre-URAA and postURAA dumping margins would be equal, Congress clearly intended to require zeroing in post-URAA investigations. Both Appellants argue that previous courts have not addressed arguments that § 1677f-1(d) requires zeroing and that we should do so now.
Appellants also respond to an argument by Corus suggesting that Congressional intent to use offsetting methodology may be inferred from the Congressional consultation process undertaken pursuant to Sections 123 and 129. Appellants argue that the Congressional role in those consultations is merely advisory, and does not indicate the intent of the entire Congress.
Lastly, Appellants argue that Commerce’s actions in implementing an adverse WTO Panel decision must be consistent with U.S. law. Based on its argument that § 1677f-1(d) requires zeroing methodology, U.S. Steel asks the court to conclude that Commerce’s actions are inconsistent with U.S. law.
In response, the government argues that the Court of International Trade correctly followed Timken and Corus, which together establish unequivocally that Commerce was neither required to use nor prohibited from using zeroing methodology by its governing statute. The government notes that neither of the Appellants argues that Commerce’s determination not to use zeroing was unreasonable. Nevertheless, the *1360 government explains why its determination not to use zeroing was reasonable. The Section 129 Determination, the government explains, is a reflection of the political branches’ carefully tailored response to an adverse WTO report. The response, pursuant to Section 123 and Section 129, included solicitation of public and private sector views on possible responses, followed by a request to Commerce from the United States Trade Representative to take action not inconsistent with the WTO ruling. The government notes that through those consultations, Congress gave “tacit approval” to the new methodology. Thus, the government argues, its statutory interpretation is reasonable and this court should affirm the Court of International Trade if we determine, as we have before, that the statute is ambiguous.
In response to Appellants’ section 1677f-1(d) arguments, the government notes that we have already considered and rejected U.S. Steel’s argument, which it unsuccessfully argued in Corns. Substantively, the government responds to U.S. Steel’s § 1677f-1(d) argument by explaining that Commerce continues to use zeroing in other types of investigations and reviews using methodology other than average-to-average comparisons. In addition, the government notes that Commerce continues to use zeroing in targeted dumping analyses under § 1677f-1(d)(B). As a result, the outcomes under different subsections of § 1677f-1(d) are indeed different.
Corus argues that well-established precedent makes clear that the statute is ambiguous and that Appellants’ arguments, including their § 1677f-l(d) arguments, have been refuted multiple times. Corus further argues that the consultations of the United States Trade Representative, Commerce, and Congress prior to implementing its determinations demonstrate clear Congressional intent that the adverse WTO rulings be implemented.
We turn to the language of the statute to begin our analysis, according to which “[t]he terms ‘dumped’ and ‘dumping’ refer to the sale or likely sale of goods at less than fair value.” 19 U.S.C. § 1677(34). Commerce calculates a dumping margin for a particular product subject to review, defined as “the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise.” Id. at § 1677(35)(A). A “weighted average dumping margin” across the products is “the percentage determined by dividing the aggregate dumping margins determined for a specific exporter or producer by the aggregate export prices and constructed export prices of such exporter or producer.” Id. at § 1677(35)(B). The issue Appellants ask us to revisit, both generally and in light of § 1677f-1(d), is whether a weighted average dumping margin may include negative numbers in its aggregation of dumping margins.
We agree with the government that the Section 129 Determination reflects Commerce’s reasonable interpretation of an ambiguous statute. Our analysis proceeds under the two-part test explained in
Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc.,
Our case law has repeatedly examined the antidumping statute and found it to be “silent or ambiguous” as to zeroing methodology. In
Timken,
we upheld Commerce’s use of zeroing methodology in administrative reviews.
Timken,
We are bound by our previous decisions in
Timken
and
Corns,
which held that § 1677(35)(A) does not unambiguously preclude—or require—Commerce to use zeroing methodology.
See Texas Am. Oil Corp. v. U.S. Dep’t of Energy,
Nor are Appellants’ “new” arguments regarding § 1677f-1(d) persuasive. To begin with, the arguments were raised by U.S. Steel, but not found persuasive or explicitly addressed by us in Timken and Corns. Appellants’ arguments do not convince us that § 1677f — 1(d) constitutes a clear Congressional instruction to use zeroing methodology.
Section 1677f — 1(d) describes how to determine a weighted average dumping margin, providing that 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 constructed export prices) of individual transactions for comparable merchandise.
19 U.S.C. § 1677f-l(d)(l)(A) (emphases added). Thus, these subsections describe average-to-average comparisons and individual-to-individual transaction comparisons in normal investigations. In addition, the statute provides for an exception, under which Commerce
may determine whether the subject merchandise is being sold in the United States at less than fair value by comparing the weighted average of the normal 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) the administering authority explains why such differences cannot be taken into account using a method described in paragraph (l)(A)(i) or (ii).
Id. § 1677f-1(d)(1)(B) (emphases added). Thus, Commerce is able to use an average-to-individual transaction comparison in situations of targeted dumping. Even if we accept, arguendo, U.S. Steel’s argument that if offsetting methodology is used in two of the comparison methods (average-to-average and average-to-individual transaction), the results are likely to be the same, 5 § 1677f-1(d) still cannot be said to require zeroing methodology.
Section 1677f-1(d) was enacted as part of the URAA in 1994, at a time when zeroing methodology was Commerce’s standard practice.
See, e.g., Serampore,
Similarly, Corus’s argument that Congress must have meant for § 1677f-1(d) to effect a change in Commerce’s calculation of dumping margins does not necessitate a conclusion that Congress intended to direct Commerce to continue its zeroing methodology indefinitely. Congress certainly could have given such instructions; however, it did not. The SAA’s assertion that § 1677f—1(d) is a “departure from current U.S. law,” SAA at 810, 842-43,
reprinted in
1994 U.S.C.C.A.N. at 4153, 4178, does not give a clear indication of Congressional intent as to zeroing methodology either, but is rather an expression of its implementation of various negotiated-for changes in the statute. In addition, the exception contained in § 1677f-1(d)(1)(B) indicates that Congress gave Commerce a tool for combating targeted or masked dumping by allowing Commerce to compare weighted average normal value to individual transaction values when there is a pattern of prices that differs significantly among purchasers, regions, or periods of time. 19 U.S.C. § 1677f—1(d)(1)(B). Commerce has indicated that it likely intends to continue its zeroing methodology in those situations, thus alleviating concerns of targeted or masked dumping. That threat has been one of the most consistent rationales for Commerce’s zeroing methodology in the past.
See, e.g., Timken,
Conclusion
For the foregoing reasons, we affirm the Court of International Trade’s decision affirming Commerce’s reasonable interpretation of the antidumping statute.
AFFIRMED
Notes
. Commerce uses a constructed export price if “before or after the time of importation, the first sale to an unaffiliated person is made by (or for the account of) the producer or exporter or by a seller in the United States who is affiliated with the producer or exporter.” Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc. No. 103-826, at 822 (1994), reprinted in 1994 U.S.C.C.A.N. 4040 ("SAA”).
. The difference between average-to-average comparisons and other methodologies is discussed in the section II, infra. Commerce did not adopt changes to its comparison methodologies used in other segments of an anti-dumping proceeding. See 71 Fed.Reg. at 77, 724.
. The Statement of Administrative Action that accompanied the Uruguay Round Agreements Act explained that individual-to-individual transaction comparisons were intended for situations in which "there are very few sales and the merchandise sold in each market is identical....” Statement of Administrative Action Accompanying the URAA, H.R.Rep. No. 403-316, 842, reprinted in 1994 U.S.C.C.A.N. 4040, 4178.
. In that context, Commerce was comparing weighted-average normal values to transaction-specific export prices pursuant to 19 U.S.C. § 1675(a)(2)(A)(ii), which governs administrative reviews.
See Timken Co. v. United States,
. Corus referenced its prior responses to U.S. Steel's § 1677f-l(d) arguments in prior cases in its briefing and oral argument, suggesting that the results might not be the same under the different comparison methods, based on the use of different time periods for average-to-individual transaction methodology in comparison with the other methodologies.