Thyssenkrupp Acciai Speciali, Terni v. U.S., Slip Op. 09-19.

CourtU.S. Court of International Trade
Citation602 F.Supp.2d 1362
Docket NumberSlip Op. 09-19.,Court No. 07-00390.
PartiesTHYSSENKRUPP ACCIAI SPECIALI, TERNI S.P.A., and ThyssenKrupp AST USA, Inc., Plaintiffs, v. UNITED STATES, Defendant, and AK Steel Corp., and Allegheny Ludlum Corp., Defendant-Intervenors.
Decision Date23 March 2009

Hogan & Hartson, LLP (Lewis E. Leibowitz, Brian S. Janovitz, Craig A. Lewis, Harold D. Kaplan, Jonathan T. Stoel, Theodore C. Weymouth), Washington, D.C., for Plaintiff ThyssenKrupp Acciai Speciali Terni S.p.A., and ThyssenKrupp AST USA, Inc.

Michael F. Hertz, Deputy Assistant Attorney General, Jeanne E. Davidson, Director, U.S. Department of Justice, Civil Division, U.S. Department of Justice, Patricia M. McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, (Claudia Burke), for Defendants United States, Otto J. Wolff, United States Department of Commerce, Ambassador Ron Kirk, and the Office of the United States Trade Representative. Office of the Chief Counsel for Import Administration, U.S. Department of Commerce (Natasha Camille Robinson) for Defendant United States Department of Commerce. Kelley Drye & Warren, LLP (Mary T. Staley, Daniel P. Lessard, David A. Hartquist) for Defendant-Interveners AK Steel Corporation, and Allegheny Ludlum Corporation.

Before: Richard W. Goldberg, Senior Judge.


GOLDBERG, Senior Judge.

This case is before the Court on plaintiffs motion for judgment on the agency record.1 For the following reasons, plaintiffs ThyssenKrupp Acciai Speciali Terni S.p.A. and ThyssenKrupp AST, USA, Inc.'s (collectively "ThyssenKrupp") motion is denied, and the U.S. Department of Commerce's ("Commerce") final determination is sustained.


ThyssenKrupp's argument centers on whether Commerce can now correct two alleged mistakes in its 1999 less-than-fairvalue investigation of Italian stainless steel sheet and strip coils ("SSSS"). To understand the procedural background of this case, three events are relevant: (1) Commerce's 1999 investigation; (2) the subsequent proceedings before the WTO; and (3) the current section 129 determination.

A. The 1999 Investigation

In its 1999 investigation, Commerce applied adverse facts available to calculate the antidumping duty margin applicable to Italian SSSS. Final Determination of Sales at Less than Fair Value: Stainless Steel Sheet and Strip in Coils from Italy, 64 Fed.Reg. 30,750, 30,757 (Dep't Commerce June 8, 1999). Using an "average-to-average" methodology to compare U.S. and Italian SSSS prices, Commerce set this margin at 11.17%. Memorandum from Lesley Stagliano, Case Analyst, To File, Analysis of Acciai Terni S.p.A. for the Final Determination in the Antidumping Investigation of Stainless Steel Sheet and Strip in Coils from Italy for the Period April 1, 1996March 31, 1998 (May 19, 1999). Shortly after setting this margin, ThyssenKrupp notified Commerce of the company's belief that this calculation contained several "ministerial" or "computational" errors. In an amended final determination, Commerce set a revised dumping margin of 11.23%, but did not correct or address the errors alleged by ThyssenKrupp. Amended Final Determination of Sales at Less Than Fair Value: Stainless Steel Sheet and Strip in Coils from Italy, 64 Fed.Reg. 40,567, 40,570 (Dep't Commerce July 27, 1999).

ThyssenKrupp then appealed Commerce's amended final determination. Although the Court affirmed Commerce's overall application of adverse facts available, it remanded for consideration of the alleged errors. Acciai Speciali Terni S.P.A. v. United States, 25 CIT 245, 142 F.Supp.2d 969 (2001). Before Commerce could address these errors, this case was dismissed without prejudice at the request of the parties.

B. Proceedings before the World Trade Organization

Commerce's original antidumping duty investigation of Italian SSSS relied on "zeroing" methodology.2 In 2004, the European Community ("EC") requested the formation of a WTO panel to address the validity of this methodology. Request for the Establishment of a Panel by the European Communities, United StatesLaws, Regulations and Methodology for Calculating Dumping Margins ("Zeroing"), WT/DS294/7/Rev.1 at 1, 11 (Feb. 19, 2004). Upon completing its investigation, the WTO panel found zeroing inconsistent with U.S. obligations under various WTO agreements. Panel Report, United States-Laws, Regulations and Methodology for Calculating Dumping Margins (Zeroing), WT/DS294/R (Oct. 31, 2005). Subsequently, Commerce abandoned zeroing. See Calculation of the Weighted-Average Dumping Margin During an Antidumping Investigation, 71 Fed.Reg. 77722 (Dep't Commerce Dec. 20, 2006) (final modification).

C. The Section 129 Proceeding

To implement the decision of the WTO panel, Commerce initiated a section 129 proceeding. Section 129 of the Uruguay Round Agreements Act (as set forth in 19 U.S.C. § 3538) is the mechanism through which determinations found inconsistent with the U.S.'s WTO obligations are brought into compliance. Under section 129, the United States Trade Representative ("USTR") is first required to consult with Commerce and various congressional committees to determine their response. See 19 U.S.C. § 3538(b)(1) (2000). After this consultation, the USTR may request that Commerce issue a determination (a "Section 129 determination") to bring the challenged determination into compliance with U.S. obligations. Id. § 3538(b)(2).

Here, Commerce issued a section 129 determination related to the antidumping duty order on Italian SSSS. After abandoning zeroing, Commerce determined that the new margin applicable to Italian SSSS was 2.11%. A margin below 2% is de minimis and would merit revocation of the antidumping duty order. See 19 U.S.C. § 1673b(b)(3) (2000). Subsequently, ThyssenKrupp commenced this action against Commerce, the Secretary of Commerce (the Honorable Carlos M. Gutierrez) the Office of the USTR, and the USTR (Ambassador Susan C. Schwab). Specifically, ThyssenKrupp objects to Commerce's refusal to reexamine the alleged errors committed during the original 1999 investigation in its current section 129 determination. Each error, if accurate and corrected, would bring the dumping margin below the 2% de minimis threshold and would merit revocation of the antidumping duty order.


The Court has jurisdiction pursuant to both 28 U.S.C. § 1581(c) and 28 U.S.C. § 1581(i). The Court will uphold an agency's determination unless it is "unsupported by substantial evidence on the record, or otherwise not in accordance with law." 19 U.S.C. § 1516a(b)(1)(B)(1)(2000). In reviewing ThyssenKrupp's challenge to Commerce's construction of a statute, the Court applies the two-step analytical framework laid out in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984). Step one requires the Court to determine whether Congress has spoken clearly to the issue at hand. Id. at 842-43, 104 S.Ct. 2778. If the intent of Congress is clear, the Court's inquiry concludes and this express intent governs. Id. However, if Congress's intentions are unclear, the agency is given the discretion to interpret the statute as "statutory interpretations articulated by Commerce during its antidumping proceedings are entitled to judicial deference under Chevron." Pesquera Mares Australes Ltda. v. United States, 266 F.3d 1372, 1382 (Fed.Cir.2001). If Chevron deference applies, the Court cannot substitute "its own construction of a statutory provision for a reasonable interpretation made by [Commerce]." IPSCO, Inc. v. United States, 965 F.2d 1056, 1061 (Fed.Cir.1992). In reviewing ThyssenKrupp's challenge to the decisions of both Commerce and the USTR, the Court reviews these determinations to address whether they are "not in accordance with law . . . [or] in excess of statutory jurisdiction, authority, or limitations." 5 U.S.C. § 706(2)(A); 28 U.S.C. § 2640(e).


ThyssenKrupp raises two arguments: (1) that Commerce's refusal to correct the alleged errors violates the agency's statutory mandate; and (2) in the alternative, if the USTR's instructions led to Commerce's refusal to address these errors, these instructions violate U.S. antidumping law. These arguments are addressed in turn.

A. Commerce's Section 129 Proceeding

ThyssenKrupp's first argument is that Commerce's calculation of the margin applicable to Italian SSSS is arbitrary and capricious and unsupported by substantial evidence. ThyssenKrupp argues that Commerce is required to correct the alleged errors as part of its greater obligation to reconcile adverse WTO mandates with domestic trade law. In Thyssen-Krupp's view, a section 129 determination is a "`new', `second', and `different' determination[]" meriting individualized attention to ensure that the newly selected margin corresponds with the relevant requirements of antidumping duty law—including the obligation to calculate margins "as accurately as possible" and to correct "any ministerial error by amending the final determination." See Implementation of the Findings of the WTO Panel in UZeroing (EC): Notice of Determinations Under Section 129 of the Uruguay Round Agreements Act and Revocations and Partial Revocations of Certain Antidumping Duty Orders, 72 Fed.Reg. 25, 261 (Dep't Commerce May 4, 2007) (quoting Statement of Administrative Action, URAA, H. Doc. 316, Vol. 1, 103rd Cong. (1994)); Rhone Poulenc v. United States, 899 F.2d 1185, 1191 (Fed.Cir.1990); 19 U.S.C. § 1673(d). Commerce, however, advances a narrower view of its authority concluding that section 129 determinations are limited to the specific issue found inconsistent with the U.S.'s WTO obligations (in this case, zeroing). For the reasons that follow, this Court affirms Commerce's reasonable interpretation of section 129.

i. The Scope of Section 129 is Ambiguous

As an initial matter, the Court agrees...

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3 cases
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    • United States
    • U.S. Court of International Trade
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    ...of ambiguity that requires the court to give Commerce due deference under Chevron to reasonably interpret the statute at issue. ThyssenKrupp Acciai Speciali, Terni S.P.A. v. United States, 33 CIT ___, ___, 602 F.Supp.2d 1362, 1367 (2009). The limited scope of the Section 129 Determination i......
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    ...raised in the World Trade Organization dispute settlement proceeding. See ThyssenKrupp Acciai Speciali, Terni S.P.A. v. United States, 602 F.Supp.2d 1362 (Ct. Int'l Trade 2009) ("ThyssenKrupp") (upholding Commerce's determination in Implementation of the Findings of the WTO Panel in US — Ze......
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    • United States
    • U.S. Court of International Trade
    • August 20, 2015 order to comport with the final decision on the investigation. ATM points to ThyssenKrupp Acciai Speciali, Terni S.P.A. v. United States, 33 CIT 200, 602 F. Supp.2d 1362 (2009), aff'd, 603 F.3d 928 (Fed. Cir. 2010) for support, but that case is inapposite, if not the inverse of the matte......

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