DOJ Backs Differential Pricing Analysis for Dumping Margin Calculations in Federal Circuit

The Commerce Department was right to rely on a differential pricing analysis to apply an average-to-transaction comparison method to SeAH in an antidumping administrative review on oil country tubular goods from South Korea, the Department of Justice said in June 21 comments in the U.S. Court of Appeals for the Federal Circuit. SeAH's points to the contrary rely on arguments that have been "rejected repeatedly" in bids to strike down the longstanding practice, DOJ said. The exporter's arguments against the practice also stand at odds with the Federal Circuit decision in Apex Frozen Foods Private Ltd. v. United States, the comments said.

SeAH is appealing an Oct. 16, 2020, Court of International Trade ruling sustaining remand results in the antidumping review. SeAH served as a mandatory respondent.

In particular, DOJ backed Commerce's interpretations of the undefined terms "pattern" and "significant" in the statute. Commerce's "use of the Cohen’s d coefficient to identify prices that differ significantly based on the use of the associated large threshold, and the ratio test to identify whether the identified significant differences in prices constitute a pattern of prices that differ significantly" are reasonable interpretations of these key terms, DOJ said.

Commerce was also correct not to increase SeAH's constructed export price of the OCTGs by the amount of revenue from freight services, the brief said. The agency excluded freight revenue from the constructed export price ensuring that an "ex factory" comparison could be made -- i.e., "the price of goods alone without any additional charges." Since the law requires that Commerce can only make downward adjustments to U.S. price, the agency, by law, cannot make the adjustment that SeAH is requesting in its appeal, DOJ said.