CIT Says Congress Gave Commerce 'Flexibility' to Address Targeted Dumping

Congress gave the Commerce Department wide latitude to go after "masked" dumping, the Court of International Trade said in a decision made public Nov. 15 that upheld the agency's differential pricing analysis.

Judge Claire Kelly previously said antidumping duty respondent Garg Tube failed to raise its challenge to the differential pricing analysis administratively in its suit on the 2018-18 review of the AD order on welded carbon steel standard pipes and tubes from India (see 2404160037). The exporter said that in light of Loper Bright Enterprises v. Raimondo, which eliminated the principle of judicial deference to agencies' interpretations of ambiguous statutes, exhaustion is no longer required.

The court rejected this claim, saying an analysis of the statute under Loper Bright doesn't "materially alter any issue in this case."

Kelly held that "Congress afforded flexibility to Commerce under 19 U.S.C. § 1677f-1(d)(B)," the statute that lets Commerce address targeted dumping. The law lets the agency compare an exporter's average sale price in its home market to the price of an individual transaction in the U.S. when Commerce establishes there to be a pattern of prices that "differ significantly." The court found that the statute's text and legislative history show that Congress gave Commerce room to freely maneuver in addressing this issue through the term "significantly."

The judge said "significantly" is an "open-ended qualifier, akin to 'appropriate' or 'reasonable.'" The use of the word "may" in the statute additionally establishes that Commerce would be "exercising discretion in determining whether prices 'differ significantly,'" the opinion said.

Kelly added that the Uruguay Round Agreement Act's Statement of Administrative Action confirms this delegation, providing "for Commerce to proceed on a case-by-case basis." This mandate "confirms the flexibility provided by the words of the statute," the judge said.

In addition, the court centered on the context in which the phrase "differ significantly" appears, noting that many of the statute's subsections "afford flexibility to Commerce." For instance, one subsection lets the agency decline to take into account insignificant adjustments, while another exclusively lets Commerce select averages and statistically valid samples, the court said.

The judge separately sustained Commerce's decision to drop the use of adverse facts available against Garg Tube. In the review, the agency used AFA due to an unaffiliated supplier's failure to submit certain information. Commerce said Garg Tube failed to act to the best of its ability by not inducing the supplier to cooperate with Commerce. The court previously rejected this basis, telling the agency to clearly invoke the specific statutory basis on which it relied on AFA.

On remand, Commerce used partial facts available without an adverse inference on the exporter, conceding that the record lacks support to show that Garg Tube "failed to cooperate to the best of its ability or possessed sufficient leverage to induce cooperation to warrant an adverse inference." Kelly said this position is "reasonable on this record."

However, the judge noted that while Garg Tube didn't have enough authority to induce cooperation this time around, AFA could be properly invoked if the exporter continues to use the non-cooperative suppliers. Kelly said "Garg’s lack of leverage in this review may not excuse its failure to secure information in future reviews."

(Garg Tube Export v. U.S., Slip Op. 24-124, CIT # 21-00169, dated 11/07/24; Judge: Claire Kelly; Attorneys: Ned Marshak of Grunfeld Desiderio for plaintiffs Garg Tube Export and Garg Tube Limited; Robert Kiepura for defendant U.S. government; Robert DeFrancesco of Wiley Rein for defendant-intervenor Nucor Tubular Products)