The U.S. Court of Appeals for the Federal Circuit says no (yesterday). Some brief snippets of the decision follow.
First, some general background on the actions of the Department of Commerce:
In November 2001, Commerce issued an antidumping duty order against Corus imposing a dumping margin of 2.59%. … 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. …. Thus, "dumping margins for sales below normal value are not offset by `negative dumping margins' for those sales made above normal value." …
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. …
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").
…
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 it would cease its zeroing practice in new and pending investigations using average-to-average comparison methodology. …. 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.
…
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.
Now for the appeal to the CIT:
Four separate actions were filed at the Court of International Trade, challenging Commerce's determinations.
… 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, 637 F. Supp. 2d at 1214. In so holding, the court first stated that settled precedent established that Congress had not clearly spoken to the question of zeroing in the antidumping statute, either by requiring Commerce to make a "fair comparison . . . between the export price or constructed export price and normal value" under 19 U.S.C. § 1677b(a), or by its definitions of dumping margins as "the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise" and weighted average dumping margins as a calculation "dividing the aggregate dumping margins . . . by the aggregate export prices and constructed export prices," under § 1677(35)(A) and (B). Id. at 1210-11 (citing Timken,354 F.3d at 1341-43, inter alia). The court found that "the language in §§ 1673c(b)(2), 1673c(c), and 1677f-1(d) does not clarify Congress's intent on the issue." Id. Therefore, the court proceeded to an analysis of whether Commerce's methodology encompassed a reasonable interpretation of the statute, pursuant to Chevron, U.S.A., Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837 (1984).
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, 637 F. Supp. 2d at 1212-13.
Finally, here's what the CAFC had to say about the issue:
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., 467 U.S. 837 (1984). At issue here is the first step of Chevron, which requires a court to determine "whether Congress has directly spoken to the precise question at issue." Id. at 842. If so, that would be the end of the inquiry; however, "if the statute is silent or ambiguous with respect to the specific issue," the court determines if the agency's construction of the statute is permissible. Id. at 843. As explained below, we conclude that none of the cited statutory provisions speaks to the precise issue of zeroing—or offsetting— methodology. Rather, the statute is silent as to the methodology to be employed in situations of negative dumping margins.
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. …
We are bound by our previous decisions in Timken and Corus, 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, 44 F.3d 1557, 1561 (Fed. Cir. 1995) (en banc) ("This court applies the rule that earlier decisions prevail unless overruled by the court en banc, or by other controlling authority such as intervening statutory change or Supreme Court decision."). Moreover, we agree with those decisions. The statute defines a dumping margin as "the amount by which the normal value exceeds the export price or constructed export price of the subject merchandise," 19 U.S.C. § 1677(35)(A), and subsequently requires Commerce to use this amount in calculating a weighted-average dumping margin, id. § 1677(35)(B). However, the statute is silent as to what to do when the "amount" calculated by Commerce pursuant to § 1677(35)(A) is negative. Congress has given Commerce discretion in forming its methodology in antidumping investigations, and where the statutory language does not address the methodology at issue, we decline to conclude that Congress has manifested its unambiguous intent. We find it important to note that although the processes undertaken pursuant to Sections 123 and 129 included input from Congressional committees, this later involvement in Commerce's methodology cannot constitute an indication of Congressional intent, nunc pro tunc. Were we to find a clear Congressional intent in the language of the statute to mandate zeroing methodology, the acquiescence of Congressional committees now to the new determinations would not serve to negate it. Nevertheless, we have found no such clear intent.
Nor are Appellants'"new" arguments regarding § 1677f-1(d) persuasive. …
