Federal Circuit Denies Full Court Rehearing for Case Over Use of 'd Test' Analysis in AD Case

There will be no full court hearing for a case involving the Commerce Department's use of the "Cohen's d test" to discover targeted or masked dumping, the U.S. Court of Appeals for the Federal Circuit said in an Oct. 1 order. The case, appealed by SeAH Steel Corp., was remanded by the Federal Circuit in July after the appellate court found that Commerce may not be adhering to certain assumptions required to perform the statistical test (see 2107150032) (Stupp Corporation et al. v. U.S., et al., CAFC # 2020-1857).

After the opinion was issued, SeAH sought a full court rehearing on two questions that arose from the case: 1) Was a rule establishing arbitrary numerical thresholds that mandated whether an affirmative determination of dumping would be made -- the rule was adopted by Commerce without notice-and-comment rulemaking -- properly considered to be an "interpretive rule" that reasonably interpreted the statute, when established court precedent holds that "rules establishing numerical cut-offs in similar circumstances are necessarily 'legislative,' not 'interpretive'"? and 2) "Can the numeral thresholds that are selected by an agency without any justification in logic, mathematics, empirical analysis, or the text of the statute be considered reasonable and non-arbitrary?"

The motion for the rehearing also listed a host of grievances against the panel's ruling at the Federal Circuit, which include the perception that the panel ignored the applicable burden of proof before finding Commerce could depart from the average-to-average comparison required by the statute when identifying masked dumping and the panel's holding that Commerce's differential pricing analysis constitutes a binding "interpretive rule," even though it wasn't established with notice-and-comment rulemaking. The move for a rehearing was denied without any accompanying opinion.