U.S. Court of International Trade 2011 Opinions on Commerce Market Economy Trade Remedy Decisions
Alfano, Peter C., Koenig, Peter J., Georgetown Journal of International Law
TABLE OF CONTENTS I. INTRODUCTION II. WHEN EXPORTERS DECLINE TO PARTICIPATE, THE CIT NORMALLY UPHELD COMMERCE'S REASONABLE AND EXPLAINED USE OF ADVERSE FACTS AVAILABLE III. THE CIT SUSTAINED ONLY SOME CHALLENGES TO COMMERCE'S SELECTION OF COMPANIES FOR ADMINISTRATIVE REVIEWS IV. THE CIT EFFECTIVELY PUT A HOLD ON ITS PRACTICE OF SUSTAINING COMMERCE'S ZEROING IN ADMINISTRATIVE REVIEWS, PENDING RESOLUTION OF FEDERAL CIRCUIT CONCERNS V. THE CIT SUSTAINED COMMERCE'S APPROACH AS TO PRODUCT SCOPE OF AN AD/CVD ORDER VI. THE CIT UPHELD COMMERCE'S DECISIONS AS TO THE BENCHMARK TO ASSESS DUMPING VII. THE CIT HAD A MIXED REACTION TO THE LAWFULNESS OF COMMERCE'S PRICE ADJUSTMENT DECISIONS VIII. THE CIT ALSO HAD A MIXED REACTION TO COMMERCE'S COST-OF-PRODUCTION METHODOLOGIES IX. THE CIT AFFIRMED COMMERCE'S CHANGE IN METHODOLOGY AS TO SUCCESSORS-IN-INTEREST IN CVD CASES X. CONCLUSION
This Article discusses notable 2011 opinions of the U.S. Court of International Trade (the Court or CIT) as to U.S. Department of Commerce (Commerce) dumping and subsidy margin decisions involving market economies. Commerce, of course, administers (1) the U.S. antidumping (AD) statute to determine if sales are below fair value, warranting remedial antidumping import duties, and (2) U.S. countervailing duty (CVD) law to determine if exporters receive unfair government subsidies. (1)
AD/CVD law has long since been controversial. (2) U.S. manufacturers claim that the law, as administered by Commerce, does not fully protect them from unfair dumping and subsidies. Exporters and foreign governments claim, on the other band, that the U.S. AD/CVD process, as administered by Commerce, is abusive and itself an unfair trade practice. (3)
The CIT, in New York City, is the first avenue to address such complaints and controversy in the U.S. court system. The alternative avenue is appeals to the World Trade Organization (WTO) in Geneva, which is not the subject of this Article.
In 2011, the Court issued opinions on a wide range of AD/CVD issues. Such issues involved the use of adverse inferences, exporters that Commerce selected for full AD/CVD review, expenses including selling, general, and administrative (SG&A) allocation, zeroing, model match criteria, successor-of-interest, product scope, and level-of-trade, among others. We seek to discern ally themes from these decisions. Generally, the Court's decisions evidenced strong deference to Commerce's expertise to make AD/CVD decisions, but at the same time, some decisions limited Commerce's discretion. The Court did, however, express mixed views as to Commerce's claims of resource constraints to justify its actions, perhaps noteworthy in today's more resource-constrained times.
It is also apparent from the opinions that practitioners are well advised to carefully consider the Court's review standard in their advocacy before the Court if they wish to be effective and avoid wasted efforts. The Court will not reject Commerce's decision if reasonable, even if there are other reasonable--perhaps more reasonable--decisions that could have been made. In particular, parties are going to have a difficult time appealing Commerce's factual decisions to the Court.
The initial decisions we examine involve, somewhat paradoxically, (a) exporters reviewed that did not want to be reviewed, and (b) exporters not reviewed that wanted to be reviewed. On balance, the Court seemed to generally side with the party seeking to ensure full cooperation and participation such that AD/CVD margins were calculated as accurately as possible, per the statutory mandate. Consider these decisions.
II. WHEN EXPORTERS DECLINE TO PARTICIPATE, THE CIT NORMALLY UPHELD COMMERCE'S REASONABLE AND EXPLAINED USE OF ADVERSE FACTS AVAILABLE
Foreign exporters often view Commerce's demands as overly burden-some and unrealistic as to the time given. …