OPINION
In December 2006, the U.S. Department of Commerce (“Commerce”) determined that it would apply a new methodology to calculate the weighted-average 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
”).
1
Plaintiff United States Steel Corporation (“U.S.Steel”), along with other interested domestic parties,
2
challenge that determination in a particular Section 129 proceeding,
3
claiming that the use of offsetting and the elimination of zeroing is not
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,
Commerce is required to impose an anti-dumping 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.”
6
19 U.S.C.
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 weighted-average dumping margin calculation is the aggregate of all dumping margins (ie., 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 weighted-average 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 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
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-I21-807),
A-421-807 (Oct. 3, 2001),
available at
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.
7
Id.
The Appellate Body upheld
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 anti-dumping 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 anti-dumping order on hot-rolled carbon steel from the Netherlands, effective for entries of the subject merchandise made on or 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
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.
8
Specifically, it 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.,
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,
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), 1677(35)(A)-(B) and 1677f-l(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-l(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-l(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 Plaintiff-Intervenors attempt to relitigate a legal issue previously settled by the Federal Circuit in
Timken Co. v. United States,
A. Offsetting
It is within the province of the judiciary to interpret the law, and indeed
Just as the Federal Circuit has repeatedly found that the pertinent anti-dumping statutes do not unambiguously reveal Congress’s position on the issue of zeroing, 9 this court similarly finds 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 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,
Moreover, the language in §§ 1673c(b)(2), 1673c(c), and 1677f-l(d) does not clarify Congress’s intent on this issue.
11
Plaintiff and Plaintiff-Intervenors cite to these sections as 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-l(d) state that Commerce may undertake a particular action in an anti-
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 -, -,
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. § 3533(g). The
Section 123 Determination
is the result of such a
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.,
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. 14 A market, in the simplest of terms, “is a mechanism through which buyers and 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. 15 See id. at 27-28. The government 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 anti-dumping 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),
16
or the weighted average-to-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-to-transaction methodology in the pertinent investigation, or to assert a claim of targeted dumping when applicable
Contrary to Plaintiff and PlaintiffIntervenors’ 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,
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-l(d) is an attempt to relitigate an issue decided by the Court in
Dorbest Ltd. v. United States,
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 PlaintiffIntervenors 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-l(d)(l)(B). The Code of Federal Regulations specify that 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 Anti-dumping 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,
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 Plaintiff-Intervenors’ request. 19 Importantly, Commerce’s modification of its methodology for calculating 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 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 [Sjection 129 [of the URAA] to include only issues
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,
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 and outside the scope of the Section 129 proceeding, and because there is no good cause to excuse their tardy claim.
Notes
.Commerce twice delayed the implementation of the Section 123 Determination, with the 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).
. Nucor Corporation (“Nucor”), Gallatin Steel Company, SSAB North American Division, and Steel Dynamics, Inc. (together, “Gallatin”), as well as ArcelorMittal USA, Inc. ("ArcelorMittal”) (collectively, “PlaintiffIntervenors”), join this action pursuant to US-CIT 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 Determinations Under Section 129 of the Uruguay Round Agreements Act and Revocations and Partial Revocations of Certain Antidumping
.Zeroing and offsetting are different methodologies used to determine the weighted-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,
. While U.S. Steel challenged Commerce's decision not to consider its claim of targeted 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.
. The dumping margin (“DM”) is expressed functionally as DM = NV — (EP or CEP). 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)(l)(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 affiliated with
. A law, regulation, or measure of a WTO Member that violates a WTO agreement "as 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
. There are no issues of fact before the court.
. Since
Timken,
the Federal Circuit has heard several cases discussing the use of zeroing in certain antidumping proceedings.
See SKF USA, Inc. v. United States,
. The Uruguay Round Agreements Act, Statement of Administrative Action, H.R.Rep. 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 weighted-average 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 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)(l)-(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)(l)(A)-(B). Finally, in antidumping investigations, § 1677f-l(d) explains that NV and EP (or CEP) shall normally be compared on a weighted average-to-weighted average, or individual transaction-to-individual transaction, basis. § 1677f-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. § 1677Í-1 (d)(1)(B).
. "Foreign commerce is pre-eminently a matter of national concern.”
Japan Line, Ltd. v. County of Los Angeles,
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
],
. Equally telling here is Congress's tacit approval of the new offsetting methodology. 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.
. To be sure, the discussion here on any harm that the Section 123 Delennination may 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 27.
.In original antidumping investigations, Commerce will normally use the average-to-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 Section 129 Determination, has prevented Commerce from applying the transaction-to-transaction methodology or the targeted dumping provision with the use of the zeroing methodology. Def. Br. 16-17.
. Plaintiff-Intervenor Gallatin also argues that Commerce has not provided a reasonable 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.
. As a matter of fact, the issue of positive and negative value dumping margins was 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,