Not So Simply ‘The Best’: Loper Bright Complicates Dumping Review

Counsel representing Chinese aluminum foil companies cited Tina Turner during oral arguments at the U.S. Court of International Trade on Thursday, as attorneys faced off over the U.S. Department of Commerce’s approach to surrogate value data selection post-Loper Bright.

Judge Claire R. Kelly invited attorneys for Chinese companies led by Jiangsu Dingsheng New Materials Joint-Stock Co. Ltd. and the government’s counsel to define the word “best” as the opposing sides made their cases for whether the term was ambiguous.

“It is ‘simply the best, better than all the rest,’” Dingsheng’s attorney Grunfeld Desiderio Lebowitz Silverman & Klestadt LLP partner Ned Marshak told the court.

Dingsheng and its co-plaintiffs filed suit in 2023 challenging the fourth review of its antidumping and countervailing duties, focused in large part on Commerce’s decision to compare Chinese aluminum foil producers to Romanian proxies instead of Malaysian or Bulgarian ones.

Marshak and GDLSK partner Dharmendra Choudhary went on to cite a handful of Federal Circuit opinions. The appeals court has repeatedly deemed ambiguous the provision that requires Commerce to benchmark production costs in nonmarket economies against the “best available information” for production in a comparable market economy to calculate antidumping duties, the pair said.

For 30 years, the Chevron doctrine required the trade court and Federal Circuit to endorse Commerce’s interpretation of the ambiguous phrase. But the U.S. Supreme Court unwound Chevron deference last June with its decision in Loper Bright Enterprises v. Raimondo.

Without Chevron, the government must spell out a clear methodology for selecting the best surrogate data based on substantial evidence, Marshak said.

But the government came equipped with its own Federal Circuit citations, including last month’s decision in Carbon Activated Tianjin Co. Ltd. vs. United States, to contend that there was nothing unclear in the “best available information” requirement.

“You had said that ‘best’ is unambiguous,” Judge Kelly questioned U.S. Department of Justice attorney Christopher Berridge.

“It means ‘better than,’” Berridge replied.

Moreover, according to Berridge, the same section of the Tariff Act of 1930 that gave Commerce the authority to calculate weighted average dumping margins granted the agency discretion to select surrogate country data.

“We have an exception to Loper Bright,” he told the court.

Judge Kelly did not indicate when she expected to issue an opinion in the case.