Court of International Trade Deference to International Trade Commission and International Trade Administration Antidumping Determinations: An Empirical Look
Ondeck, Thomas P., Lawrence, Michael A., Law and Policy in International Business
The United States antidumping law imposes dumping duties on the sale of foreign goods in the United States "at less than its fair value" when an industry in the United States is "materially injured or is threatened with material injury"(4) by reason of those sales. Two government entities, the International Trade Commission (ITC)(5) and the Department of Commerce International Trade Administration (Commerce),(6) are responsible for conducting the investigation in antidumping proceedings. The investigation may go through as many as four distinct phases: (1) the ITC preliminary injury investigation, (2) the Commerce preliminary dumping investigation, (3) the Commerce final dumping investigation, and (4) the ITC final injury investigation.(7)
An interested party in an antidumping proceeding may obtain judicial review in the United States Court of International Trade (CIT) of any ITC or Commerce determination which terminates or concludes an investigation or an administrative review.(8) Regarding this review by the CIT, one sometimes hears the opinion expressed in the trade bar that the CIT gives greater deference to ITC determinations than to Commerce determinations in antidumping and countervailing duty cases. There is no basis in the statute for this perception - in fact, the statute and legislative history do not differentiate between the deference the CIT shall give the two entities - nevertheless, the perception exists.
The purpose of this Article is to examine whether there is a basis for the perception that the CIT gives the ITC greater deference than Commerce, and if so, why this different treatment might exist. The Article looks empirically at 268 CIT antidumping decisions over the past seven years(9) and finds there is a statistical difference between the rate at which the CIT has upheld ITC determinations and the rate at which it has upheld Commerce determinations. The difference - 60.6% of ITC determinations upheld as compared to 53.8% for Commerce - is not huge, but does support the conclusion that, for whatever reason, the CIT has given marginally more deference to ITC than to Commerce determinations.
Section II of the Article provides an overview of the antidumping law as it specifically applies to the Court of International Trade's deference to ITC and Commerce decisions, and discusses the legislative history and scholarly commentary relating to the deference issue. Section III outlines the methodology of the empirical survey and discusses the data. This section also conducts a judge-by-judge breakdown, which yields some interesting results. Finally, Section IV offers thoughts on why the CIT might give greater deference to ITC decisions than to Commerce decisions.
II. The Antidumping Law
A. The Statute
An antidumping duty proceeding begins administratively when Commerce determines that an investigation is warranted, or when an interested party files an antidumping petition.(10) Then, Commerce and the ITC conduct a two-step administrative proceeding (preliminary and final determination) lasting nine months to one year. Within forty-five days of the petition's filing, the ITC must issue its preliminary determination stating whether there is a "reasonable indication" that a domestic industry has been materially injured or threatened with material injury by reason of the subject imports.(11) The ITC preliminary investigation includes a hearing at which the importer, exporter, petitioner, and other parties with a stake in the outcome may present evidence. The Commission staff, rather than Commissioners themselves, usually conducts the hearing, which is typically less forms than a trial. After the Commissioners have had an opportunity to review the staff's findings from the investigation, they vote on the "reasonable indication" issue, with a majority vote of six commissioners controlling. If the ITC finds that there is no reasonable indication of such injury, the investigation ends - there is no antidumping violation. …