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UNITED STATES STEEL CORPORATION,Petitioner,

V.

UNITED STATES OF AMERICA ANDTATA STEEL IJMUIDEN BV (FORMERLY

KNOWN AS CORUS STAAL BV),Respondents.

On Petition for Writ of Certiorari to theUnited States Court of Appeals

for the Federal Circuit

PETITION FOR WRIT OF CERTIORARI

Robert E. LighthizerJeffrey D. Gerrish

Counsel of RecordEllen J. SchneiderSKADDEN, ARPS, SLATE,MEAGHER & FLOM LLP

1440 New York Ave., N.W.Washington, D.C. 20005(202) 371-7000Jeffrey.Gerrish@skadden.com

Counsel for PetitionerUnited States Steel Corporation

Blank Page

QUESTION PRESENTED

This case involves an antidumping proceedingconducted by the U.S. Department of Commerce("Commerce") and imports into the United States ofunfairly traded (i.e., dumped) steel from theNetherlands that were found to have materiallyinjured the U.S. steel industry. In 2007, Commerceabandoned its longstanding methodology forcalculating dumping margins and antidumpingduties, which is known as "zeroing," to conform itspractice to decisions of the World TradeOrganization. Commerce’s application of this newmethodology of not using zeroing in the antidumpingproceeding involving steel from the Netherlandsresulted in the denial of relief to the U.S. steelindustry.

The question presented is whether the U.S.Court of Appeals for the Federal Circuit erred byfinding that Commerce is not statutorily requiredunder U.S. law to use zeroing to calculate dumpingmargins and that, instead, the agency may employ amethodology that negates Congress’ expresslyenacted remedy for U.S. industries and workersthat have been injured by unfairly traded imports.

PARTIES TO THE PROCEEDING

The parties to the proceeding are as follows:(1) the Petitioner, United States Steel Corporation("U.S. Steel") and (2) the Respondents, United Statesof America and Tata Steel Ijmuiden (formerly knownas Corus Staal BV). Nucor Corporation ("Nucor")also participated in the proceeding below andsupported the positions advanced by the Petitioner.In addition, the United Steel, Paper and Forestry,Rubber, Manufacturing, Energy, Allied Industrialand Service Workers International Union, AFL-CIO-CLC, the American Iron and Steel Institute, and theCommittee to Support U.S. Trade Laws participatedin the proceedings below as amici curiae.

CORPORATE DISCLOSURE STATEMENTPURSUANT TO RULE 29.6

Petitioner U.S. Steel does not have a parentcompany. In addition, no publicly held companyowns 10% or more of U.S. Steel’s stock.

ii

TABLE OF CONTENTS

QUESTION PRESENTED .........................................i

PARTIES TO THE PROCEEDING ...........................ii

CORPORATE DISCLOSURE STATEMENTPURSUANT TO RULE 29.6 .................................

TABLE OF AUTHORITIES ....................................vii

OPINIONS BELOW ....................................................1

JURISDICTION ..........................................................1

STATUTORY PROVISIONS INVOLVED .................1

STATEMENT OF THE CASE ....................................2

I. Introduction ...........................................3

II. Statutory Framework Relating toDeterminations of Dumping andDumping Margins ..................................8

III. Statutory Framework Relating tothe Treatment of the UruguayRound Agreements and WorldTrade Organization DisputeSettlement Decisions ...........................13

IV. Administrative ProceedingsBefore Commerce .................................14

iii

Vo Appellate Proceedings before theCIT and the Federal Circuit ................18

REASONS FOR GRANTING THISPETITION ............................................................20

The Federal Circuit’s DecisionEviscerates the AntidumpingRemedy Enacted by Congress inFavor of Implementing a WidelyCriticized WTO Decision Adverseto the United States .............................21

II. Contrary to this Court’sPrecedent, the Federal CircuitIgnored the Plain Language andOrdinary Meaning of theStatutory Provisions RequiringZeroing .................................................25

III. The Federal Circuit’s DecisionConflicts with the EstablishedPrecedent of this Court on HowCongress’ Intent Must BeDetermined ..........................................31

CONCLUSION ..........................................................34

iv

APPENDICES

APPENDIX A: United States Steel Corporationv. United States, 621 F.3d 1351 (Fed. Cir.2010) .....................................................................la

APPENDIX B: United States Steel Corporationv. United States, Case No. 2009-1572, -1573(Feb. 23, 2011) (order denying rehearing enbanc) ...................................................................31a

APPENDIX C: United States Steel Corporationv. United States, 637 F. Supp. 2d 1199 (Ct.Int’l Trade 2009) ...............................................37a

APPENDIX D: Implementation of the Findingsof the WTO Panel in US - Zeroing (EC):Notice of Determinations Under Section 129of the Uruguay Round Agreements Act andRevocations and Partial Revocations ofCertain Antidumping Duty Orders, 72 Fed.Reg. 25261 (Dep’t Commerce May 4, 2007)(Notice) ...............................................................77a

Issues and Decision Memorandum inImplementation of the Findings of the WTOPanel in US - Zeroing (EC): Notice ofDeterminations Under Section 129 of theUruguay Round Agreements Act andRevocations and Partial Revocations ofCertain Antidumping Duty Orders, 72 Fed.Reg. 25261 (Dep’t Commerce May 4, 2007)(Notice) ...............................................................94a

V

APPENDIX E: Statutes ........................................151a

19 U.S.C. § 1677 (34) (2006) .................................151a

19 U.S.C. § 1677 (35) (2006) .................................151a

19 U.S.C. § 1677f-1 (d) (2006) ...............................152a

19 U.S.C. § 3512(a)(1) (2006) ................................154a

vi

TABLE OF AUTHORITIES

FEDERAL CASES

Agro Dutch Industries Ltd. v. United States, 508F.3d 1024 (Fed. Cir. 2007) ....................................21

Asgrow Seed Co. v. Winterboer, 513 U.S. 179(1995) .....................................................................25

Astrue v. Ratliff, __ U.S. __, 130 S. Ct. 2521(2OLO) .....................................................................28

Bilsky v. Kappos,_ U.S. __, 130 S. Ct. 3218(2010) .....................................................................30

Chevron U.S.A., Inc. v. National ResourcesDefense Council, 467 U.S. 837(1984) ................................................... 18, 20, 31, 32

Corus Staal BV v. United States, 395 F.3d 1343(Fed. Cir. 2005), cert. denied, 546 U.S. 1089(2006) .....................................................................15

Hamilton v. Lanning, __ U.S. __, 130 S. Ct. 2464(2010) .....................................................................26

Huaiyin Foreign Trade Corp. v. United States, 322F.3d 1369 (Fed. Cir. 2003) ......................................4

Immigration and Naturalization Serv. v. Cardoza-Fonseca, 480 U.S. 421 (1987) ................................30

vii

Koyo Seiko Co. v. United States, 95 F.3d 1094(Fed. Cir. 1996) .....................................................21

National Labor Relations Board v. United Food,484 U.S. 112 (1987) ...............................................31

NSKLtd. v. United States, 510 F.3d 1375 (2007) ....13

Paul Muller Industries GMBH & Co. v. UnitedStates, 435 F. Supp. 2d 1241 (Ct. Int’l Trade2006) ......................................................................13

Sango Int’l L.P. v. United States, 484 F.3d 1371(Fed. Cir. 2007) .....................................................21

SKF USA, Inc. v. United States, 537 F.3d 1373(Fed. Cir 2008) ......................................................13

Sorenson v. Secretary of the Treasury, 475 U.S.851 (1986) ..............................................................28

Timken v. United States, 354 F.3d. 1334 (Fed. Cir.2004) .............................................................. passim

TRWInc. v. Andrews, 534 U.S. 19 (2001) ..........29, 30

United States v. Labonte, 520 U.S. 751 (1997) .........25

United States v. Ron Pair Enterprises, Inc., 489U.S. 235 (1989) ................................................25, 26

United States Steel Corp. v. United States, 621F.3d 1351 (Fed. Cir. 2010) ...................... 1, 7, 19, 32

VIII

United States Steel Corporation v. United States,637 F. Supp. 2d 1199 (Ct. Int’l Trade 2009) ....1, 18

Wheatland Tube Co. v. United States, 495 F.3d1355 (Fed. Cir. 2007) ..............................................4

Williams v. Taylor, 529 U.S. 420 (2000) ...................26

STATUTES

U.S. Const. art. I, § 2, cl. 3 ........................................28

19 U.S.C. § 1516a (2006) ...........................................24

19 U.S.C. § 1673 (2006) .........................................9, 10

19 U.S.C. § 1673c(b)(2) (2006) ..................................28

19 U.S.C. § 1673d(c)(2) (2006) ..................................10

19 U.S.C. § 1677(34) (2006) ..............................passim

19 U.S.C. § 1677(35) (2006) ..............................passim

19 U.S.C.§ 1677a(a) (2006) .........................................9

19 U.S.C.§ 1677b(a)(1)(B)(i) (2006) .............................9

19 U.S.C. § 1577f-l(d) (2005) ..............................passim

19 U.S.C. § 3512(a)(1) (2006) ..........................2, 14, 24

28 U.S.C. § 1254(1) (2006) ..........................................1

ix

28 U.S.C. § 1295 (2006) .............................................24

28 U.S.C. § 1581 (2006) .............................................24

OTHER AUTHORITIES

Antidumping Proceedings: Calculation of theWeighted-Average Dumping Margin During anAntidumping Investigation; Final Modification,71 Fed. Reg. 77722 (Dep’t Commerce Dec. 27,2006) (Final Modification) ....................................16

Carbon and Certain Alloy Steel Wire Rod fromBrazil, Canada, Germany, Indonesia, Mexico,Moldova, Trinidad and Tobago, Turkey andUkraine, USITC Pub. 3546, Inv. Nos. 701-TA-417-421 and 731-TA-953, 954, 956-959 961 and962 (Final) (Oct. 2002) ............................................4

Certain Hot-Rolled Carbon Steel Flat Productsfrom the Netherlands, 66 Fed. Reg. 50408(Dep’t Commerce Oct. 3, 2001) (Final Determ.)..15

Certain Hot-Rolled Carbon Steel Flat Productsfrom the Netherlands, 66 Fed. Reg. 59565(Dep’t Commerce Nov. 29, 2001) (Order) .............14

Certain Magnesia Carbon Bricks from China andMexico, USITC Pub. 4182, Inv. Nos. 701-TA-468 and 731-TA-1166-1167 (Final)(Sept. 2010) .............................................................4

X

Frozen Warmwater Shrimp from the SocialistRepublic of Vietnam, 70 Fed. Reg. 5152 (Dep’tCommerce Feb. 1, 2005) (Order) ............................3

Implementation of the Findings of the WTO Panelin US - Zeroing (EC): Notice of Initiation ofProceedings Under Section 129 of the URAA,Opportunity to Request AdministrativeProtective Orders; and Proposed Timetable andProcedures, 72 Fed. Reg. 9306 (Dep’t CommerceMar. 1, 2007) (Notice) ...........................................17

Implementation of the Findings of the WTO Panelin US - Zeroing (EC): Notice of DeterminationsUnder Section 129 of the Uruguay RoundAgreements Act and Revocations and PartialRevocations of Certain Antidumping DutyOrders, 72 Fed. Reg. 25261 (Dep’t CommerceMay 4, 2007) (Notice) .................................. 1, 17, 23

Lined Paper Products from India, Indonesia andthe People’s Republic of China, 71 Fed. Reg.56949 (Dep’t Commerce Sept. 28, 2006)(Order) .....................................................................3

New Pneumatic Off-the-Road Tires from thePeople’s Republic of China, 73 Fed. Reg. 51624(Dep’t Commerce Sept. 4, 2008) (Order) ................3

Oil Country Tubular Goods from the People’sRepublic of China, 75 Fed. Reg. 28551 (Dep’tCommerce May 21, 2010) (Order) ..........................3

xi

Orange Juice from Brazil, 71 Fed. Reg. 12183(Dep’t Commerce Mar. 9, 2006) (Order) .................3

Report of the WTO Panel, United States - Laws,Regulations and Methodology for CalculatingDumping Margins ("Zeroing"), WT/DS294/R(Oct. 31, 2005) ................................................. 16, 24

Request for Consultations by the EC, UnitedStates - Laws, Regulations and Methodology forCalculating Dumping Margins ("Zeroing"),WT/DS294/1 (June 19, 2003) ................................15

United States - Laws, Regulations andMethodology for Calculating Dumping margins("Zeroing"), WT/DS294/17 (May 15, 2006) ...........16

xii

OPINIONS BELOW

The opinion of the U.S. Court of Appeals forthe Federal Circuit (App. A at la) is reported at 621F.3d 1351 (Fed. Cir. 2010). The order of the FederalCircuit denying the petitions for rehearing en banc(App. B at 31a) is unreported.

The opinion of the U.S. Court of InternationalTrade (App. C at 37a) is reported at 637 F. Supp. 2d1199 (Ct. Int’l Trade 2009).

The final determination of the U.S.Department of Commerce (App. D at 77a) is reportedat 72 Fed. Reg. 25261 (Dep’t of Commerce May 4,2007).

JURISDICTION

The judgment of the Federal Circuit wasentered on October 4, 2010. On February 23, 2011,the Federal Circuit entered an order denying U.S.Steel’s timely petition for rehearing en banc. Thejurisdiction of this Court is invoked pursuant to 28U.S.C. § 1254(1).

STATUTORY PROVISIONS INVOLVED

This petition presents issues arising under thefollowing statutory provisions:

(i) Sections 771(34) and (35) of the Tariff Actof 1930, as amended, 19 U.S.C. §§ 1677(34) and (35)(2006). These sections define the terms "dumping,""dumping margin," and "weighted average dumpingmargin."

(ii) Section 777A(d) of the Tariff Act of 1930,as amended, 19 U.S.C. § 1677f-l(d) (2006). Thissection specifies how the dumping margin is to becalculated in various scenarios; and

(iii) Section 102(a) of the Uruguay RoundAgreements Act, 19 U.S.C. § 3512(a)(1) (2006). Thissection provides that if there is a conflict betweenU.S. law and any provision of the Agreementsentered into by the members of the World TradeOrganization or the application of any suchprovision, then U.S. law controls.

These statutory sections are set forth in full inAppendix E.

STATEMENT OF THE CASE

This Petition asks the Court to review adecision by the U.S. Court of Appeals for the FederalCircuit that directly conflicts with this Court’sfundamental principles that a statute must beafforded its plain meaning and that a statute maynot be interpreted so as to render any provisionmeaningless. If left unchanged, the decision of theFederal Circuit will eviscerate the U.S. antidumpinglaw and the remedy enacted by Congress for U.S.industries and workers injured by unfairly traded

2

imports. The importance of this issue cannot beoverstated. Indeed, this issue is crucial to the veryviability of entire U.S. industries, to the continuedexistence of hundreds of thousands of U.S. jobs, andto the economic health of our country as a whole.

I. Introduction

Dumping occurs when foreign producers orexporters sell merchandise in the United States atunfairly low prices. Over the years, this unfair tradepractice has caused enormous harm to businessesand workers in virtually all sectors of the U.S.economy, including manufacturing, technology,mining, energy, agriculture, and aquaculture. Thereare currently over 250 antidumping orders in effectin the United States to remedy the deleteriouseffects of dumping in a wide range of industries. SeeAntidumping and Countervailing Duty Orders inEffect (Mar. 21, 2011), available at http:www.trade.gov/ia.1

~ In the last several years alone, Commerce has issuedantidumping orders involving the following diverse types ofproducts: New Pneumatic Off-the-Road Tires from the People’sRepublic of China, 73 Fed. Reg. 51624 (Dep’t Commerce Sept.4, 2008) (Order); Lined Paper Products from India, Indonesiaand the People’s Republic of China, 71 Fed. Reg. 56949 (Dep’tCommerce Sept. 28, 2006) (Order); Oil Country Tubular Goodsfrom the People’s Republic of China, 75 Fed. Reg. 28551 (Dep’tCommerce May 21, 2010) (Order); Orange Juice from Brazil, 71Fed. Reg. 12183 (Dep’t Commerce Mar. 9, 2006) (Order); FrozenWarmwater Shrimp from the Socialist Republic of Vietnam, 70Fed. Reg. 5152 (Dep’t Commerce Feb. 1, 2005) (Order).

3

The consequences of unremedied dumping canbe devastating, resulting in plant closures,bankruptcies, and the widespread loss of U.S. iobs.See, e.g., Carbon and Certain Alloy Steel Wire Rodfrom Brazil, Canada, Germany, Indonesia, Mexico,Moldova, Trinidad and Tobago, Turkey andUkraine, USITC Pub. 3546, Inv. Nos. 701-TA-417-421 and 731-TA-953, 954, 956-959, 961 and 962(Final) (Oct. 2002) (finding that dumped importsresulted in bankruptcies, plant closures, increasedoperating losses and decreases in production and thequantity and value of shipments for the affected U.S.industry); Certain Magnesia Carbon Bricks fromChina and Mexico, USITC Pub. 4182, Inv. Nos. 701-TA-468 and 731-TA-1166-1167 (Final) (Sept. 2010)(finding that dumped imports caused the domesticindustry to experience layoffs as well as significantdeclines in production, shipments, sales, and marketshare); Wheatland Tube Co. v. United States, 495F.3d 1355, 1364 (Fed. Cir. 2007) (recognizing thatdumped imports can lead to "lost sales, decliningprices, declining market share, and decliningprofits"). Without a proper remedy, dumping putsthe affected U.S. industries at a profoundcompetitive disadvantage: they simply cannotsurvive in the face of imports that are priced atunsustainably low levels. See Huaiyin ForeignTrade Corp. v. United States, 322 F.3d 1369, 1379(Fed. Cir. 2003) (recognizing that antidumpingduties "equalize competitive conditions betweenforeign exporters and domestic industries affected bydumping.").

The steel industry is one of the many sectorsof the U.S. economy that have been severely affectedby the catastrophic effects of dumping. It is not anexaggeration to state that the continued existence ofthe U.S. steel industry and many other U.S.industries - and the vital role such industries play inour nation’s economy and security - depends on thevigorous and vigilant enforcement of theantidumping laws. Therefore, when dumpedimports injure a U.S. industry, it is essential thatthe antidumping duties that are calculated reflectand address all of the dumping that has caused suchharm.

Under the decision of the Federal Circuit atissue, however, this will no longer happen. TheFederal Circuit has upheld the abandonment by theU.S. Department of Commerce ("Commerce") of theso-called "zeroing"methodology forcalculatingdumping margins.Under zeroing,Commercecalculates dumpingmargins withoutgiving theforeign producer or exporter an offset, or credit, forsales that it made in the United States at fair prices.Prior to the instant case, Commerce used zeroingconsistently in every case for decades andmaintained that it was required to do so by statute.In the current case, however, Commerce used a newmethodology that provides offsets to foreignproducers and exporters and that dramaticallyreduces or even eliminates dumping margins andantidumping duties despite the presence of injuriousunfair trade.

Commerce changed its policy so as to startgranting offsets, even though it had previouslyinsisted that zeroing was mandated by the U.S.statute, for the sole purpose of implementingdecisions of the World Trade Organization ("WTO")Dispute Settlement Body that were adverse to theUnited States. The result of Commerce’s newoffsetting policy is that the dumping that is takingplace and harming U.S. industries will go largely, oreven totally, unremedied. The economic peril thatthis poses for U.S. producers, manufacturers, andworkers - and the U.S. economy as a whole - isstaggering.

This petition will demonstrate that zeroing isrequired by the plain language of the U.S. statuteand that the decision of the Federal Circuit holdingotherwise conflicts with two of this Court’s mostbasic requirements of statutory interpretation: (i)the plain language of a statute is to be given effectand (ii) the words in the statute are to be given theirordinary meaning. The Federal Circuit violatedthese precepts by adopting a definition of thecommon English language word "exceeds" that bearsno relation to that word’s ordinary meaning.

The antidumping statute defines the term"dumping margin" as the amount by which the pricecharged by the foreign producer or exporter in itshome market, which is called normal value,"exceeds" the price charged for the merchandise inquestion in the United States. 19 U.S.C. §1677(35)(A) (2006) (App. E at 151a). Under the plainlanguage of this provision and the ordinary meaning

6

of the word "exceeds," a dumping margin can existonly where normal value is greater than U.S. price.Accordingly, if normal value does not "exceed" U.S.price (i.e., if normal value is less than U.S. price), thestatute dictates that there is no dumping margin.The Federal Circuit, however, found that the word"exceeds" is ambiguous and that a dumping margincan exist where normal value is less than U.S. price.2This is the exact opposite of what the statuteexpressly states. The purported ambiguity of theword "exceeds" was the sole basis for the FederalCircuit’s decision that zeroing is not mandatory.

This petition will also show that the FederalCircuit’s decision fails to heed this Court’sfundamental tenet that no provision of a statute is tobe interpreted so as to be superfluous or withoutmeaning. By finding that zeroing was notmandated, the Federal Circuit nullified theprovisions of another statutory section, 19 U.S.C.1677f-1(d)(1) (2006) (App. E at 152a). This sectionwas specifically enacted by Congress as afundamental change in U.S. antidumping law toprovide that in the calculation of dumping margins

2 According to the Federal Circuit, the term "exceeds" couldhave been intended by Congress merely to "guide" themathematical equation such that "x exceeds y" means "x - yo"Timken v. United States, 354 F.3d. 1334, 1341-42 (Fed. Cir.2004). The Timken holding on the ambiguity of the term"exceeds" was expressly adopted and reaffirmed by the FederalCircuit in this case. See United States Steel Corp. v. UnitedStates, 621 F.3d 1351 (Fed. Cir. 2010) ("U.S. Steel") (App. A atla).

in antidumping investigations, Commerce willcompare average normal values to average U.S.prices and not to transaction-specific U.S. prices.

Without zeroing, however, this change in thelaw becomes meaningless: it does not matterwhether Commerce calculates dumping marginsusing transaction-specific U.S. prices (as it did underthe old law) or average U.S. prices (as the statutenow requires). Without zeroing, Commerce willalways get the same result under either method.Therefore, by holding that zeroing is not required,the Federal Circuit adopted an interpretation thatnullifies this important change in the law andrenders the requirements of § 1677f-1(d)(1)meaningless and without effect.

In short, the Federal Circuit has flouted theestablished precedent of this Court regardingstatutory construction and the determination ofCongress’ intent. The result - to the profoundeconomic detriment of our nation’s industries andworkers - is that the Federal Circuit has nownegated key provisions of the antidumping statuteand gutted the remedy Congress expressly enacted.

II. Statutory Framework Relating toDeterminations of Dumping andDumping Margins

This case centers on the rules that must befollowed by courts for interpreting statutes anddetermining Congress’ intent. It arises in thecontext of the proper interpretation of the

antidumping statute relating to determinations ofdumping and dumping margins.

Under the antidumping law, Congressprovides for the imposition of antidumping dutieswhere a domestic industry has been materiallyinjured or threatened with material injury by theimportation of products sold at less than fair value(i.e., products that have been dumped) in the UnitedStates. See 19 U.S.C. §§ 1673, 1677(34) (2006). Thestatute directs that antidumping duties will beimposed "in an amount equal to the amount bywhich the normal value exceeds the export price (orthe constructed export price) for the merchandise."Id. The "normal value" is typically the price atwhich the merchandise in question is sold in thehome market of the foreign producer or exporter.The "export price" or "constructed export price" is theprice at which the merchandise is sold in the UnitedStates. See id. §§ 1677a(a), 1677b(a)(1)(B)(i).

The statute further provides for Commerce toconduct antidumping investigations to examinewhether dumping is occurring. In an antidumpinginvestigation, Commerce reviews the sales ofparticular foreign producers or exporters andcalculates dumping margins for these companies todetermine if they have engaged in dumping and, ifso, to establish the level of antidumping duties to beimposed. See id. §§ 1677(35); 1673. If both dumpingand material injury (or the threat of material injury)to the U.S. industry are found, Commerce issues anantidumping order imposing antidumping duties onimports of the subject merchandise so as to level the

9

playing field and remedy the injury to the domesticindustry. See id. §§ 1673, 1673d(c)(2).

Commerce’s calculation of dumping margins isgoverned by 19 U.S.C. § 1677(35) (App. E at 151a).Section 1677(35)(A) defines the term "dumpingmargin" as "the amount by which normal valueexceeds the export price or the constructed exportprice {i.e., the U.S. price} of the subject merchandise"under investigation. Therefore, if the normal valueis greater than the U.S. price, the comparisonbetween the normal value and the U.S. priceproduces a positive number, establishing thatdumping has occurred on that sale. But if thenormal value is less than the U.S. price, thecomparison produces a negative number showingthat the sale in question has been made at fair valueand there is no dumping margin for that sale. Seeid.

Under the zeroing methodology, any negativeamounts determined on sales made at fair value donot offset (i.e., cancel out) the positive margins onsales made at unfairly low prices that are injuringthe U.S. industry. In other words, under zeroing,the foreign producer or exporter is not afforded a"credit" for merchandise that it sold in the UnitedStates at or above fair value, i.e., without dumping.Zeroing can thus be likened to the situation where apolice officer does not give a "credit" to a speedingmotorist for the times when the driver stayed withinthe speed limit. Zeroing ensures that the full extentof the injurious dumping that has taken place isreflected in the "weighted average dumping margin"

10

that Commerce calculates for each company beinginvestigated under § 1677(35)(B), which is the basisfor the antidumping duties that are applied.

When zeroing is not used, which is what tookplace in this case, Commerce uses a methodologyreferred to as offsetting. Under offsetting, thenegative amounts on sales that have not beendumped are subtracted from the positive margins onsales where dumping has occurred. As a result, thepositive margins on dumped sales are offset or evencancelled out by the negative amounts on non-dumped sales notwithstanding the fact that thedumped sales are causing injury to the domesticindustry that is not, in any way, affected by the non-dumped sales. Under offsetting, injurious dumpingmay be taking place, but the weighted averagedumping margin could nevertheless be negative or asignificantly reduced rate that does not reflect thefull extent of the dumping that is taking place.Therefore, when offsetting is used, Commerce’scalculation does not address all of the injuriousdumping and the resulting antidumping duties arereduced or even totally eliminated.

Commerce’s use of zeroing has beenfrequently reviewed and upheld by the lower courts.The first decision of the Federal Circuit to addresszeroing was Timken v. United States, 354 F.3d 1334(Fed. Cir. 2004) ("Timken"). In that case, Commercemaintained that zeroing was mandated by thedefinitions of "dumping margin" and "weightedaverage dumping margin" in § 1677(35)(A) and (B).In fact, it argued that by virtue of these definitions,

11

the antidumping statute "unambiguously requiresCommerce to consider only transactions where theprice falls below {the normal value} in calculatingdumping margins." Brief of the United States,Timken v. United States, No. 03-1098 (May 19, 2003)at 18-19 (emphasis in original). As Commerceexplained:

Considering these definitions together, thestatute plainly directs Commerce to aggregatethe entries where NV {i.e., normal value}exceeds U.S. price in determining the"weighted average dumping margin." Thestatute neither provides nor suggests that thisamount may be reduced or offset by other EPor CEP transactions {i.e., U.S. pricetransactions} that exceed {normal value}.

Id. at 19 (emphasis in original).

While the Federal Circuit found this to be a"close question," it nevertheless decided that thestatute permitted, but did not require, zeroing. SeeTimken, 354 F.3d at 1341. The sole basis for thecourt’s holding that zeroing was not required by thestatute was its construction of the statutory term"exceeds" in the definition of "dumping margin" in §1677(35)(A) in a manner that has no connection tothat term’s ordinary meaning and usage.3 See id.

3 As noted, Timken determined that "exceeds" was ambiguousand, therefore, that a dumping margin could exist where thenormal value was less than the U.S. price. Timken, 354 F.3d at1341-1342.

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Timken’s holding that zeroing was permitted, butnot required, by the statute was followed bynumerous subsequent decisions of the FederalCircuit and the U.S. Court of International Trade(the "CIT").4

Prior to the instant case, however, Timken’srejection of the mandatory nature of zeroing hadlittle, if any, practical effect. This is becauseCommerce always used zeroing and because both theFederal Circuit and the CIT consistently upheldzeroing as a reasonable interpretation of the statute.But this changed with the current case: this casemarks the first time that Commerce calculated adumping margin without using zeroing. Theconsequences of the finding that zeroing is notmandated by the statute are catastrophic both forthis case and for Commerce’s enforcement of theantidumping law in all future cases.

III. Statutory Framework Relatingto theTreatment of the Uruguay RoundAgreements and World TradeOrganization Dispute SettlementDecisions

In 1994, the United States became a signatoryand party to the Uruguay Round Agreements and, as

~ See, e.g., 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, 395 F.3d 1343(Fed. Cir. 2005); Paul Muller Industries GMBH & Co. v. UnitedStates, 435 F. Supp. 2d 1241 (Ct. Int’l Trade 2006).

13

a result, a Member of the World Trade Organization(the "WTO"). The Uruguay Round Agreements,including the Anti-Dumping Agreement ("ADAgreement"), are not self-executing. They have beenimplemented in U.S. law by the Uruguay RoundAgreements Act (the "URAA").

In the URAA, Congress established explicitrules for resolving conflicts between U.S. law and theUruguay Round Agreements. Specifically, Section102(a) of the URAA states that "{n}o provision of anyof the Uruguay Round Agreements, nor theapplication of any such provision to any person orcircumstance, that is inconsistent with any law ofthe United States shall have effect." 19 U.S.C. §3512(a)(1) (2006) (App. E at 154a). Thus, in theevent of a conflict between the U.S. statute and aWTO decision, U.S. law prevails and noimplementation of the WTO decision can take place.

IV. Administrative Proceedings BeforeCommerce

The facts underlying this appeal begin withCommerce’s issuance of an antidumping duty ordercovering hot-rolled steel from the Netherlands (the"Order") in November 2001. Certain Hot-RolledCarbon Steel Flat Products from the Netherlands, 66Fed. Reg. 59565 (Dep’t Commerce Nov. 29, 2001)(Order). In the investigation leading to the Order,Corus Staal BV ("Corus"),~ the sole Dutch producer

-~ Corus is now known as Tata Steel Ijmuiden BV.

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of hot-rolled steel, was found to have engaged ininjurious dumping. Certain Hot-Rolled Carbon SteelFlat Products from the Netherlands, 66 Fed. Reg.50408 (Dep’t Commerce Oct. 3, 2001) (FinalDeterm.). As was its uniform and consistent practiceat the time (and for decades before), Commercecalculated Corus’ dumping margin using zeroing.This determination was reviewed by both the CITand the Federal Circuit, and both courts upheldCommerce’s use of zeroing to calculate Corus’dumping margin. Corus Staal BV v. United States,395 F.3d 1343, 1346 (Fed. Cir. 2005), cert. denied,546 U.S. 1089 (2006).

While these appeals were proceeding throughthe U.S. courts, the European Communities (the"EC") filed a completely separate proceeding at theWTO challenging Commerce’s use of zeroing in 15antidumping investigations. See Request forConsultations by the EC, United States - Laws,Regulations and Methodology for CalculatingDumping Margins ("Zeroing") ("US - Zeroing (EC)’’),WT/DS294/1 (June 19, 2003). The investigation ofhot-rolled steel from the Netherlands was one of thechallenged investigations. See id. On October 31,2005, a WTO dispute settlement panel found thatCommerce’s use ofzeroing in antidumpinginvestigations whereweighted average normalvalues were comparedto weighted average U.S.prices was not consistent with the AD Agreement.This determination was made on both an "as such"basis, i.e., it applied to investigations generally, and"as applied" in the 15 individual investigations thereat issue. See Report of the WTO Panel, US - Zeroing

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(EC), WT/DS294/R (Oct. 31, 2005). The WTO’sAppellate Body affirmed. United States - Laws,Regulations and Methodology for CalculatingDumping margins ("Zeroing"), WT/DS294/17 (May15, 2006).

The WTO decisions were severely criticized byvarious sources, including the U.S. government. Infact, the U.S. government condemned the decisionsas "deeply flawed," "fatally flawed," and legallydevoid of merit, and it concluded that they createdobligations to which the United States never agreed.See, e.g., Communication of the United States, US-Zeroing (EC), WT/DS294/18, para. 3 (June 19, 2006).

Nevertheless, despite Commerce’s oppositionand its previous insistence that zeroing was requiredby the U.S. antidumping statute, Commerce beganimplementation proceedings to revise its practicewith respect to zeroing in antidumpinginvestigations like the one in this case. OnDecember 27, 2006, Commerce reached a finaldecision and announced that it would cease usingzeroing in new and pending antidumpinginvestigations, i.e., it would no longer use zeroing insuch investigations and would henceforth useoffsetting. Antidumping Proceedings: Calculation ofthe Weighted-Average Dumping Margin During anAntidumping Investigation; Final Modification, 71Fed. Reg. 77722 (Dep’t Commerce Dec. 27, 2006)(Final Modification). Commerce also stated that itwould implement and apply its new policy ofoffsetting in the specific antidumping investigationsthat had been the subject of the EC’s WTO challenge

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by initiating proceedings pursuant to Section 129 ofthe URAA. Id. at 77725.

In February 2007, Commerce beganproceedings pursuant to Section 129 of the URAA torecalculate the dumping margins in the affectedcases, including the case involving hot-rolled steelfrom the Netherlands. See Implementation of theFindings of the WTO Panel in US Zeroing (EC):Notice of Initiation of Proceedings Under Section 129of the URAA; Opportunity to Request AdministrativeProtective Orders; and Proposed Timetable andProcedures, 72 Fed. Reg. 9306 (Dep’t Commerce Mar.1, 2007) (Notice). In its final determination in theSection 129 proceeding, Commerce recalculated thedumping margin for Corus without using zeroingand instead using offsetting. As a result of theapplication of the offsetting methodology, Corus’margin decreased from the 2.59 percent ratecalculated in the original investigation to zero.Because Corus was the sole Dutch producer,Commerce revoked the Order in its entirety, therebydepriving the U.S. industry of any relief whatsoever.See Implementation of the Findings of the WTOPanel in US - Zeroing (EC): Notice of DeterminationsUnder Section 129 of the Uruguay RoundAgreements Act and Revocations and PartialRevocations of Certain Antidumping Duty Orders, 72Fed. Reg. 25261, 25261-25262 (Dep’t Commerce May4, 2007) (Notice) ("Section 129 Determination") (App.D at 77a).

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V. Appellate Proceedings before the CITand the Federal Circuit

U.S. Steel and other domestic producerschallenged Commerce’s actions at the CIT, arguingthat zeroing is required by the statute and thatoffsetting is, therefore, prohibited. The CIT,however, upheld Commerce’s use of offsetting. Thecourt determined that it was bound by the FederalCircuit’s reading in Timken of the term "exceeds" asused in the definition of "dumping margin" in 19U.S.C. § 1677(35). United States Steel Corporation v.United States, 637 F. Supp. 2d 1199 (Ct. Int’l Trade2009) (App. C at 37a). The CIT did not address themerits of the argument that, without zeroing, thefundamental change made by Congress to thestatute in 19 U.S.C. § 1677f-1(d) would be nullified.Because the CIT determined that zeroing was notrequired by the statute, it analyzed Commerce’sdecision to use offsetting under the second prong ofthe two-part test for analyzing agency actionestablished in Chevron U.S.A., Inc. v. NationalResources Defense Council, 467 U.S. 837 (1984)("Chevron"). Under the second prong of the Chevrontest, the CIT determined that Commerce’s decisionwas reasonable.

U.S. Steel and domestic producer Nucorappealed to the Federal Circuit. That court,likewise, affirmed. It found that the statute did notaddress the issue of zeroing because

none of the cited statutory provisions {reliedon by appellants} speaks to the precise issue of

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{the} zeroing - or offsetting - methodology.Rather, the statute is silent as to themethodology to be employed in situations ofnegative dumping margins.

U.S. Steel, 621 F.3d at 1360-1361 (App. A at 23a).The court expressly adopted Timken’s conclusionthat the term "exceeds" as used in the statutorydefinition of "dumping margin" in § 1677(35) wasambiguous and, therefore, that this section did notcompel the use of zeroing. Id. at 1361 (App. A at24a-25a).

The Federal Circuit also rejected theargument that the provisions of § 1677f-1(d) showedCongress’ intent to require zeroing because, withoutzeroing, such provisions are rendered meaningless.The court concluded that it could not discernCongress’ intent from § 1677f-1(d). It reached thisdecision despite acknowledging that it was likelythat Congress was aware that zeroing wasCommerce’s standard practice when § 1677f-1(d) wasenacted and that the specific provisions in thatsection were enacted by Congress with theunderlying assumption that zeroing would continueto be used. Id. at 1362-1363 (App. A at 27a-28a).

The Federal Circuit then analyzed the caseunder the second prong of Chevron and determinedthat offsetting was a reasonable interpretation of thestatute. Id. at 1360 (App. A at 22a-23a). OnFebruary 23, 2011, the court denied the petitionsfiled by U.S. Steel and Nucor for rehearing en banc.(App. B at 31a).

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REASONS FOR GRANTING THIS PETITION

This Court should grant this petition for threereasons:

(i) This case raises a federal question of the highestimportance for the viability of the U.S. antidumpinglaw and the remedy established by Congress forindustries and workers injured by unfairly tradedimports. The Federal Circuit’s decision, which failsto abide by the plain language of the statute,eviscerates the antidumping remedy enacted byCongress and, in so doing, threatens to cause severeeconomic harm to the many U.S. industries thatdepend on the enforcement of the antidumping lawfor their very survival. Because the U.So statuteplainly requires zeroing, the holding of the FederalCircuit improperly authorizes Commerce to abandonzeroing and use offsetting and improperly approvesthe implementation of WTO decisions that arecontrary to U.S. law.

(ii) In reaching its decision that the U.S. statutepermits offsetting, the Federal Circuit ignored thisCourt’s fundamental requirements for how statutesare to be interpreted, including the bedrockprinciples that (a) statutes are to be construed basedon their plain language and the ordinary meaning ofthe words Congress chose and (b) statutes must notbe interpreted to render meaningless even a singleword or phrase; and

(iii) In reaching its decision, the Federal Circuit didnot adhere to the principles established by this

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Court that govern how statutes must be analyzed todetermine if Congress’ intent can be ascertained.

The Federal Circuit’s DecisionEviscerates the Antidumping RemedyEnacted by Congress in Favor ofImplementing a Widely Criticized WTODecision Adverse to the United States

There can be no question that Congressenacted the antidumping law for one reason: toensure that U.S. industries and workers have anappropriate remedy when they are injured byunfairly priced foreign merchandise that is importedand sold in the United States. See Koyo Seiko Co. v.United States, 95 F.3d 1094, 1098 (Fed. Cir. 1996)(the purpose of the antidumping statute is to"protect domestic manufacturing against foreignmanufacturers" who sell dumped merchandise in theUnited States); Sango Int’l L.P. v. United States, 484F.3d 1371, 1372 (Fed. Cir. 2007) ("The antidumpinglaws protect United States industries against thedomestic sale of foreign manufactured goods atprices below the fair market value of those goods inthe foreign country"); Agro Dutch Industries Ltd. v.United States, 508 F.3d 1024, 1027 (Fed. Cir. 2007)("The purpose of the antidumping statute is toprevent foreign goods from being sold at unfairly lowprices in the United States to the injury of existingor potential U.S. producers").

When Congress enacted the remedy under theantidumping law, zeroing was the only methodologythat Commerce used to calculate dumping margins.

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Without zeroing, this remedy and the overarchingpurpose of the U.S. antidumping law are completelythwarted. This is because zeroing is essential toensure that the antidumping duties that areimposed completely reflect and address all of theinjurious dumping that is taking place.

The determination of dumping margins is theessential function Commerce performs inantidumping cases because this calculation is thebasis of the antidumping duties that will be imposed.When zeroing is used, the dumping margins that arecalculated are not improperly diluted. If a foreignproducer or exporter makes some sales in the UnitedStates that have not been dumped, such sales arenot used to offset the dumping that has occurred onother sales and that has caused injury to a U.S.industry. In other words, under zeroing, a foreignproducer or exporter that ships injurious dumpedmerchandise into the United States does not get a"credit" just because it sells some of its merchandisein the United States at fair prices. In this way,zeroing ensures that the antidumping remedy that isimposed captures all of the injurious dumping thathas caused harm to the U.S. industry.

Without zeroing, the exact opposite occurs:the antidumping remedy is minimized, or evencompletely eliminated. The severe competitive harmthis will cause for U.S. industries and workerscannot be overstated. The instant case provides aclear illustration. When it conducted itsinvestigation of hot-rolled steel from theNetherlands in 2001, Commerce found that Corus

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sold dumped merchandise in the United States, andsuch merchandise was found to have injured theU.S. industry. Using zeroing, Commerce determinedthat Corus’ dumping margin, and the resultantantidumping duty rate, was 2.59%. Sectiou 129Determiuatiou, 72 Fed. Reg. at 25262 (App. D at82a).

However, in the implementation proceedingpursuant to Section 129 of the URAA giving rise tothis appeal, Commerce recalculated Corus’ marginwithout using zeroing, i.e., it allowed negativeamounts on non-dumped sales to offset the dumpingmargins on sales that were dumped. Therecalculated margin was zero, and the antidumpingorder was revoked. Section 129 Determination, 72Fed. Reg. at 25262 (App. D at 82a). This means thatgoing forward, Corus - whose unfairly traded saleshave already been found to injure U.S. companies -will be free to resume dumping in massive quantitieswithout any remedy or adverse consequence. This isplainly not what Congress intended.

The change in policy from zeroing to offsettingoccurred even though Commerce had previouslytaken the position that zeroing was codified in theUoS. statute in 19 U.S.C. §1677(35) and that, byenacting that section, Congress mandated thatzeroing be used. See, e.g., Timken, 354 F.3d at 1340-1341 (where Commerce argued that § 1677(35) (A)and (B) mandates the use of zeroing). Commerceceased zeroing and adopted offsetting solely to bringits practice in line with international decisions fromthe WTO that were not based on U.S. law and, in

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fact, were harshly criticized by the U.S. governmentitself as devoid of legal merit. See, e.g., Report of thePanel in US- Zeroing (EC), WT/DS294/R (Oct. 31,2005). Nevertheless, these decisions have nowbecome the basis of Commerce’s new offsetting policyin antidumping investigations. This is contrary tothe plain language of the antidumping statute andwill profoundly injure the very U.S. manufacturers,producers and workers the antidumping law wasintended to protect.

Under the URAA, Congress provided thatadverse WTO decisions that conflict with U.S. lawmay not be implemented. 19 U.S.C. § 3512(a) (2006)(App. E at 154a). Therefore, since zeroing is clearlya mandatory part of the antidumping statutoryscheme (see Part II, below), Commerce may notabandon zeroing to implement the WTO decisions inquestion because such implementation conflicts withU.S. law.

It is essential that this Court grant thispetition to address the important question of federallaw that is raised in this case. If this Court does notact, the grave injustice that the Federal Circuit’sdecision will bring about - not only for the instantcase, but for all antidumping cases and, indeed, thevery viability of Congress’ entire statutory scheme -will never be rectified. Because the Federal Circuitand the CIT have exclusive jurisdiction to reviewdeterminations by Commerce, there will never be asplit in the circuits because no other court will everconsider the issue raised in this case. See 19 U.S.C.§ 1516a (2006); 28 U.S.C. §§ 1295, 1581 (2006).

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Moreover, the Federal Circuit has spoken withfinality in its decision in this case, and it has clearlyexpressed its unwillingness to revisit its decisionthrough its denial of the petitions for rehearing enbanc. See U.S. Steel, Case No. 2009-1572, -1573(Feb. 23, 2011) (order denying rehearing en banc)(App. B at 31a). Accordingly, a grant of certiorari isimperative to address the fundamental statutoryquestions at issue and to ensure that the remediesintended by Congress for our nation’s industries andworkers remain available and meaningful.

II. Contrary to this Court’s Precedent, theFederal Circuit Ignored the PlainLanguage and Ordinary Meaning of theStatutory Provisions Requiring Zeroing

As this Court has emphasized, the startingpoint in statutory construction must be the text ofthe statute. Absent a very clear legislative intent tothe contrary, the plain meaning of the statute mustprevail. See United States v. Labonte, 520 U.S. 751,757 (1997) ("Labonte") (holding that the "plainlanguage" of the statute controls and stating that"we assume that in drafting {the} legislation,Congress said what it meant" ); United States v. RonPair Enterprises, Inc., 489 U.S. 235, 242 (1989) ("RonPair") ("The plain meaning of legislation should beconclusive ...").

Furthermore, the words in a statute are to beafforded their ordinary meaning. See Labonte, 520U.S. at 757; Asgrow Seed Co. v. Winterboer, 513 U.S.179, 187 (1995) ("When terms used in a statute are

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undefined, we give them their ordinary meaning");Williams v. Taylor, 529 U.S. 420, 431 (2000) ("Wegive the words of a statute their ordinary,contemporary, common meaning, absent anindication Congress intended them to bear somedifferent import"); Hamilton v. Lanning, __ U.S. __,130 S. Ct. 2464, 2471 (2010) (adopting the ordinarymeaning of the term "projected" over a meaning thatwould entail a purely mathematical computation).

The essential mission of a reviewing court isto enforce the plain language of a statute accordingto its terms. See Ron Pair, 489 U.S. at 241. Yet, inthis case, the Federal Circuit reached a decision thatwas completely the opposite of what Congressplainly stated.

In the antidumping statute, the plainmeaning of the text of 19 U.S.C. §§ 1677(34) and (35)(App. E at 151a) shows that zeroing is required.First, § 1677(34) provides that the term "dumping"refers only to sales of merchandise "at less than fairvalue" (i.e., sales where normal value exceeds U.S.price). Section 1677(35)(A) then defines a "dumpingmargin," as the "amount by which the normal valueexceeds the {U.S. price}" of the merchandise. Usingthe ordinary meaning of the term "exceeds," adumping margin is the amount by which the normalvalue is greater than the U.S. price.~ In turn, §

The word "exceed" has been defined to mean: "1. To begreater than; surpass. 2. To go beyond the limits of." TheAmerican Heritage College Dictionary, 477 (3d ed. 1993).See Timken, 354 F.3d at 1341.

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1677(35)(B) defines the term "weighted averagedumping margin" - which is the basis of theantidumping duties that will be imposed - as thepercentage calculated by dividing the "aggregatedumping margins" by the total of the U.S. prices.

The plain meaning of these three provisions isclear. If normal value does not exceed U.S. price,there is no "dumping" under § 1677(34). And if thereis no "dumping" under § 1677(34), then there can beno "dumping margin" under § 1677(35)(A).Therefore, under § 1677(35) (A) and (B), if normalvalue is less than U.S. price (i.e., if the particularsale is not dumped), the negative amount is not a"dumping margin" and may not be included in the"aggregate dumping margins" that are used tocalculate the "weighted average dumping margin."In short, only one conclusion is possible: the statuteforbids the inclusion of negative values in theweighted average dumping margin calculation and itexpressly requires zeroing. Based on its plainlanguage and affording each word its ordinarymeaning, the statute could not be clearer.

There is absolutely no valid basis upon whichto override these clear and unqualified statutoryprovisions. If the words Congress used, such as"exceeds," are given their ordinary meaning, thenzeroing must be found to be required. There is nolegislative history or any other legitimate reason tosupport the Federal Circuit’s decision that "exceeds"should not have its common, ordinary meaning of"greater than." In fact, when Congress used theword "exceeds" elsewhere in the antidumping

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statute, it is clear that the only meaning it couldpossibly have is "greater than.’’7 See Astrue v.

Ratliff, U.S. __, 130 $. Ct. 2521, 2525 (2010)(where Congress employs identical words in thesame statute, "they are presumed to carry ’the samemeaning’") (internal citation omitted); Sorenson v.Secretary of the Treasury, 475 U.S. 851, 860 (1986)("identical words used in different parts of the sameact are intended to have the same meaning").Indeed, when the term "exceeds" is used in the U.S.Constitution, it likewise has the same ordinarymeaning, namely, "greater than."~ By failing toadhere to the plain meaning of the statute in itsexpress and unambiguous terms, the Federal Circuitfailed in its essential mission as clearly required bythis Court’s decisions - to enforce Congress’ statuteas written.

7 See, e.g., 19 U.S.C. § 1673c(b)(2) (2006). Section 1673c(b)(2),which is entitled "Agreements to eliminate completely sales atless than fair value .... " authorizes Commerce to enter intoagreements with foreign exporters to discontinue anantidumping case provided that such foreign companies"agree~} to revise their prices to eliminate completely anyamount by which normal value . . . exceeds {U.S. price}")(emphasis added). The statutory section and the quotedlanguage make sense only when "exceeds" means "greaterthan," and, consistent with the statute’s title regarding thecomplete elimination of dumping, the provision thereby ensuresan end to the dumping that has occurred.

~ See U.S. Const. art. I, § 2, cl. 3 (stating that "the number ofrepresentatives shall not exceed one for every thirty thousand"citizens in each state). Again, the only possible meaning of"exceeds" is the common ordinary meaning of "greater than."

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The Federal Circuit also violated this Court’srequirement that statutes are not to be interpretedto contain superfluous or meaningless provisions.See, e.g., TRW Inc. v. Andrews, 534 U.S. 19, 31(2001) ("TRWInc.") (it is a "cardinal principle" that astatute should not be interpreted to rendermeaningless even a single word or phrase). At thesame time that Congress enacted §§ 1677(34) and(35) discussed above, it adopted 19 U.S.C. § 1677f-l(d) - an entirely new provision that was intended tochange a fundamental aspect of U.S. law. Prior to §1677f-1(d), Commerce always used the so-called"average-to-transaction" method to calculatedumping margins.9 After hard-fought negotiationswith its trading partners that culminated in theUruguay Round Agreements, the United Statesagreed to change this methodology and, instead, touse the so-called "average-to-average" method incertain antidumping investigations like the one atissue here.10 This change was embodied in § 1677f-l(d)(1)(A)(i) (App. E at 152a).

Without zeroing, however, this monumentalchange in the law is completely negated. This is

9 Under the "average-to-transaction" method, Commercecompares average normal values to transaction-specific U.S.prices.

10 Under the "average-to-average" comparison method,Commerce compares average normal values to average U.S.prices. See 19 U.S.C. § 1677f-1(d)(1)(A)(i) (2006) (App. E at152a). Commerce uses the average-to-average method in mostantidumping investigations.

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because, without zeroing, the average-to-averagemethod and the average-to-transaction method willalways yield the exact same result. This is amathematical fact that has been recognized by theU.S. government~I and at least four separate WTOpanels.12

Therefore, based on the history of § 1677f-1(d)and the fact that the provisions of that sectionbecome meaningless without zeroing, it is doublyclear that Congress intended to require the use ofzeroing. This Court has repeatedly held that astatute must be interpreted to give effect to all of itsprovisions. See, e.g., TRW Inc., 534 U.S. at 31;Bilsky v. Kappos, __ U.S. __, 130 S. Ct. 3218, 3228(2010) (recognizing the "canon against interpretingany statutory provision in a manner that wouldrender another provision superfluous"); Immigrationand Naturalization Serv. v. Cardoza-Fonseca, 480U.S. 421,448 (1987) (where Congress articulates two

11 In submissions before the WTO Appellate Body, the UnitedStates stated that if zeroing were not used, "the overalldumping margin calculated for an exporter under either theaverage-to-average method or the average-to-transactionmethod must, mathematically, be the same." U.S. AppelleeBrief in US - Zeroing (EC) (Feb. 13, 2006) at 70-71, para 146(emphasis added). See also, U.S. Opening Statement in US-Zeroing (EC) (Mar. 16, 2005) at 5, para. 13 (same).

12 For example, in US - Zeroing (EC), the WTO Panel foundthat, without zeroing, the average-to-transaction method"would as a matter of mathematics produce a result that wasidentical to that of the ~} average-to-average methodology."Panel Report in US- Zeroing (EC) at para. 7.266.

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standards in a statute {i.e., "average-to-average" and"average-to-transaction"}, using the tools ofconstruction, it is clear that Congress did not intendthe two standards to be the same). The FederalCircuit, however, failed to heed this Court’s clearprecedent on this issue.

The only way to give effect to all of theprovisions in the antidumping statute, including theprovisions of § 1677f-1(d), is to find that zeroing isrequired.

III. The Federal Circuit’s Decision Conflictswith the Established Precedent of thisCourt on How Congress’ Intent Must BeDetermined

Under this Court’s decision in Chevron, areviewing court may defer to an agencyinterpretation of a statute only after it hasthoroughly investigated the question of Congress’intent. While the analysis of Congress’ intentunquestionably begins with the text of the statute, itdoes not end there. If a court concludes that the textalone does not answer the question, the search forCongress’ intent must also include "the traditionaltools of statutory construction," such as the structureof the statute, the legislative history, and theapplicable canons of construction. Chevron, 467 U.S.at 842-843, n, 9; National Labor Relations Board v.United Food, 484 U.S. 112, 123 (1987) ("On a purequestion of statutory construction, our first job is totry to determine congressional intent using the’traditional tools of statutory construction’").

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In the decision at issue, the Federal Circuitheld that the antidumping statute does not requirezeroing because neither § 1677(35) nor § 1677f-1(d)"speaks to the precise issue of zeroing .... " U.S.Steel, 621 F.3d at 1360 (App. A at 23a). In otherwords, the court found that zeroing is not mandatedbecause, in its view, the statute’s text did notexpressly address zeroing. Even beyond the factthat § 1677(35) actually does address zeroing andestablish that it is mandatory, the court’s decisionfails to follow the dictates of Chevron and conflictswith the precedent of this Court on how Congress’intent is to be determined.

The fact that the statute does not expresslyuse the word "zeroing" does not mean that Congress’intent on the question cannot be ascertained. Theterm "zeroing" is antidumping jargon that would notbe expected to be found in the statute. As a result,the Federal Circuit’s analysis was simply far toolimited. Had the Federal Circuit properly consideredthe legislative history, the statute’s structure, andthe applicable canons of construction to ascertainCongress’ intent, it would have seen that all of therelevant tools of statutory construction demonstratethat Congress had an intent on this issue and thatintent was to require zeroing.

In sum, the decision of the Federal Circuit inthis case authorizes a methodology - offsetting -which directly conflicts with the plain language of

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the antidumping statute and completely nullifiesstatutory provisions enacted by Congress for theexpress purpose of fundamentally changing U.S. law.When offsetting is used, it decimates the remedyCongress specifically enacted and profoundlyweakens the U.S. antidumping law. If the decisionof the Federal Circuit is allowed to stand, themethodology it has approved will have a deeplynegative effect on the economic health of countlessessential U.S. industries and their workers. It isimperative that the Court grant this petition toaddress the important federal question presented inthis case.

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CONCLUSION

For all of the above-stated reasons,Petition for Writ of Certiorari should be granted.

Respectfully submitted,

this

Robert E. LighthizerJeffrey D. Gerrish

Counsel of RecordEllen J. SchneiderSKADDEN, ARPS, SLATE,MEAGHER & FLOM LLP

1440 New York Ave., N.W.Washington, D.C. 20005(202) 371-7000Jeffrey.Gerrish@skadden.com

Counsel for PetitionerUnited States Steel Corporation

May 24, 2011

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