Despite Loper Bright, Commerce Still Has Discretion to Use Cohen's 'd' Test in Reviews, US Says
Responding to tapered roller bearing exporters’ August motion for judgment that cited Loper Bright to challenge the Commerce Department’s use of Cohen’s d test in administrative reviews, the U.S. said Nov. 14 that the department still exercises significant discretion in antidumping and countervailing duty matters (Shanghai Tainai Bearing Co. v. United States, CIT # 24-00025).
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Exporters led by Shanghai Tainai Bearing Co. pointed to the language of the law authorizing the use of the controversial differential pricing analysis. The law specifically granted Commerce the power to conduct the Cohen’s d test in AD investigations, but it made no mention of reviews.
But, though “strictly speaking, Congress provided this power in the context of less than fair value investigations ... Commerce’s use of differential pricing analysis in administrative reviews has already been sustained by the [U.S. Court of Appeals for the] Federal Circuit in JBF RAK,” the U.S. said in its response.
It also acknowledged that CAFC relied on the now-overruled Chevron standard in JBF RAK v. United States. Neither of those things mattered, it said.
First, the Supreme Court explained in Loper Bright -- which overruled Chevron -- that it wasn’t overturning all the prior judicial precedent based on the old standard, the government said. Instead, stare decisis still applies.
Further, it said, Commerce isn’t prohibited by any statute from using the Cohen’s d test in reviews. Because of that, the Tariff Act of 1930 lets the department choose what comparison method it uses to calculate dumping margins. This means that, under Loper Bright, the department has been “authorized to exercise a degree of discretion” that requires additional deference from the Court of International Trade, it said.
Tainai argued in its motion that the fact that the statute authorized the Cohen’s d test for investigations must have meant the test could be used only in investigations, as Congress knew that Commerce also conducts reviews but specifically didn’t mention them. But, again, the statute’s plain language also doesn’t exclude the use of the test for reviews, the government said.
“What Tainai calls for is a rigid approach that this Court should not dictate,” it said.
And it said that CAFC historically also has required deference to Commerce in antidumping and countervailing duty decisions distinct from the Chevron standard, due to their “complex and technical nature.” Congress can’t “anticipate in legislation every possible intricacy” in AD/CVD matters, it said. So, it said, the Uruguay Rounds Agreements Act gave the department the power to adopt regulations needed to execute its responsibilities.