AD Respondent Can't Challenge PMS Finding Since It No Longer Applies to It, Commerce Argues

Antidumping duty investigation respondent Hyundai Steel Co.'s arguments against the Commerce Department's particular market situation finding for South Korean hot-rolled coil cannot be considered because they don't apply to Hyundai, the Department of Justice told the Court of International Trade in a Nov. 8 brief. Even if the court were to consider Hyundai's arguments on this issue, nothing in the court's latest opinion in the case precludes Commerce from finding a PMS, the brief said. Rather, CIT only took issue with Commerce's application of the PMS finding.

Hyundai, the lead plaintiff in the case, served as a mandatory respondent in the 24th administrative review of the AD duty order on circular welded non-alloy steel pipe from South Korea. In the review, Commerce found a PMS existed for hot-rolled coil -- a key input of the steel pipe -- and then adjusted for the PMS in the sales-below-cost test. This is a practice the court has repeatedly rejected, with this review not standing as an exception.

On remand, Hyundai stuck with its finding that a PMS existed but dropped the PMS adjustment for the sales-below-cost test. Hyundai backed the PMS adjustment drop but still contested the PMS finding (see 2110130033).

In its reply, DOJ then said that Hyundai lacked the standing to raise this issue since it "suffers no cognizable injury," thus stopping it from seeking redress for parties other than itself. Even if the court were to find that Hyundai could make such arguments, the PMS finding is backed by substantial evidence and not barred from the court's orders, the brief said. The court actually recognized that the law allows Commerce to make a PMS finding when normal value is based on constructed value in a review, the agency said.

DOJ also argued further that Commerce's PMS finding is backed by substantial evidence. It said PMS exists due to a confluence of five factors, which include elements such as the subsidization of hot-rolled coil and the overcapacity of Chinese steel production that inundated the Korean steel market. DOJ said that the court has simply not ruled on whether the confluence of these five factors has established a PMS.