Loper Bright Relevant for AD Suit on Foreign State Control Finding, Exporter Says
The U.S. Supreme Court's decision in Loper Bright Enterprises v. Raimondo confirms that the U.S. Court of Appeals for the Federal Circuit must use its own judgment rather than defer to the Commerce Department in reviewing the agency's multifactor test for assessing independence from de facto Chinese government control of export functions, exporter Pirelli Tyre Co. argued (Pirelli Tyre Co. v. U.S., Fed. Cir. # 23-2266).
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Filing a notice of supplemental authority Jan. 2, Pirelli said that Commerce's application of the multifactor test in the third review of the antidumping duty order on passenger vehicle and light truck tires from China "was legally flawed and failed to link Commerce's theory of control to export activities."
In Loper Bright, the high court overruled the principle of giving deference to federal agencies' interpretations of ambiguous statutes (see 2407020024). The decision has surfaced in various trade-related cases, leading courts to engage in greater exercises of statutory interpretation (see 2411180024).
In the present case, Pirelli said Commerce ignored its own policy directive to link all four of the factors concerning de facto foreign state control to a company's "export activities" (see 2402140050). The exporter argued that once the third factor, which relates to control over a company's management selection, is untethered from control over export activities, any indication of control over management decisions "anywhere in the corporate tree of a respondent" is enough to satisfy this prong.