Loper Bright Means CIT Doesn't Need to Defer to Commerce in AD/CVD Matters, Exporter Argues
The Commerce Department’s self-developed “levels of trade” test doesn’t comport with U.S. law, especially since the Supreme Court's holding in Loper Bright, Spanish aluminum exporter Compania Valenciana de Aluminio Baux argued Nov. 27 in support of its June motion for judgment (see 2406130052) (Compania Valenciana de Aluminio Baux, S.L.U. v. United States, CIT # 23-00259).
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Under Loper Bright, the trade court doesn’t have to grant deference to Commerce when interpreting antidumping and countervailing duty laws, it said.
The U.S. claimed in its opposition to Baux’s motion for judgment that Baux’s argument was flawed because it was based on step 2 of the recently overturned Chevron; and under Loper Bright, Commerce’s regulation is lawful because the case didn’t overturn the U.S. Court of Appeals for the Federal Circuit’s “longstanding” deference to Commerce regarding “complex and technical” antidumping and countervailing duty measures.
But this “ignores the clear holding in Loper that courts can properly interpret statutes that cover technical matters,” Baux said.
“In Loper, in dismissing the dissent's argument that judges may not be ‘experts in the field,’ the Supreme Court explained that matters of ‘legal interpretation ... [have been] the province and duty of the judicial department' for at least 221 years,’” it said.
The court also said in Loper that “Congress expects courts to handle technical statutory questions,” it noted.
This means that, despite the government’s claim otherwise, the courts don’t have to give deference to Commerce in AD/CVD matters, Baux said. And Commerce’s interpretations of its own regulations should only be given weight by the trade court “to the extent that the reasoning underlying them has the power to persuade."
The exporter argued that its interpretation of the relevant law outlining levels of trade is the most reasonable one. Baux said that the law states Commerce “shall” make an adjustment for levels of trade whenever there is “difference” in trade levels between a product’s export price and normal value due to the “performance of different selling activities.”
“Commerce's implementing regulation, however, inserts ... [a level of] intensity requirement,” that appears nowhere in the statute, it said.
It agreed that the U.S. law, 19 U.S.C. 1677b(a)(7)(A), doesn’t explicitly define “levels of trade,” but it disagreed with the government’s claim that the statute offers no guidance on how to define the term at all.
The statute doesn’t give Commerce the authority to define the term, it noted. And, in the case Ventura v. United States, the trade court held that “an agency may have some flexibility to give meaning to the words of a statute if Congress includes open-ended phrases in the statute such as ‘reasonable’ or ‘appropriate’”; but neither of those words appears in the law, either, it said.
“The statute mandates that Commerce ‘shall’ make a LOT adjustment ‘to make due allowance for any difference’” between an export price and normal value, it argued. Not for "substantial” differences -- for any differences, it said.
It also pushed back on the U.S. argument that 19 U.S.C. 1677b(a)(7)(A) only applies once Commerce has already established the existence of multiple levels of trade.
“The Government's interpretation of 19 U.S.C. 1677b(a)(7)(A) can lead to an unreasonable scenario where a difference in LOT may not exist under Commerce's unlawful test (if there are not substantial difference[s] in selling differences) but Commerce is nevertheless statutorily required to make a LOT adjustment because there are differences between EP and NV resulting from the performance of different selling activities,” it said.