Exporters Say Commerce Not Allowed to Use 'd' Test in AD Reviews Post-Chevron

Exporters Shanghai Tainai Bearing Co. and C&U Americas argued in an Aug. 13 motion for judgment at the Court of International Trade that the Commerce Department's differential pricing analysis is not allowed by the statute in antidumping reviews and is only permissible for AD investigations (Shanghai Tainai Bearing Co. v. United States, CIT # 24-00025).

The companies invoked the Supreme Court's ruling in Loper Bright Enterprises v. Raimondo, which eliminated the Chevron doctrine of deferring to federal agencies' interpretations of ambiguous statutes. Shanghai Tainai said the agency's authorization to use its differential pricing analysis is 19 U.S.C. 1677f(d)(1)(b), which allows Commerce to identify "masked" dumping by looking for a pattern of export prices that "differ significantly among purchasers, regions, or periods of time."

Shanghai Tainai said this law "by its express language, applies to investigations, not reviews," but Commerce has extended it to AD reviews as a gap-filling measure. As a result, the trade court must now independently find whether Commerce has the authority to use its differential pricing analysis in AD reviews.

The exporter said the statute's plain language "clearly is intended to apply only to investigations," since at the time the law was enacted, Congress knew investigations and reviews would occur. "The fact that the legislature did not include reviews, knowing that such reviews were being conducted, is clear evidence that it did not intend reviews to be subject to differential pricing analysis," the brief said.

In addition, Shanghai Tainai argued that in the 2021-22 AD review of antifriction bearings from China, Commerce improperly used its Cohen's d test as part of its differential pricing analysis. The company said "the underlying data is simple and straightforward and establishes that differential pricing did not occur." The record shows that over 88% of all control numbers "had at most one price change" during the review period.