Don't Punish AD Review Challenger for Commerce's Delay in Unrelated Case, SeAH Tells CIT

The Commerce Department has given no reason why South Korean steel company SeAH Steel Corp. should be penalized via a delayed remand submission because "Commerce has chosen to procrastinate" on a delayed remand in another case, SeAH told the Court of International Trade in a Dec. 2 brief (SeAH Steel Corporation v. United States, CIT #20-00150).

SeAH is the plaintiff in a case challenging Commerce's final results in the fourth administrative review of the antidumping duty order on oil country tubular goods from South Korea. In October, CIT remanded the final determination to Commerce to reconsider its use of the Cohen's d test in its differential pricing analysis and its particular market situation finding (see 2110190075). In the review, Commerce used the test to single out potentially masked dumping.

In July, the U.S. Court of Appeals for the Federal Circuit refused to uphold Commerce's use of the test, finding that the agency failed to meet basic statistical assumptions about the test (see 2107150032). The judge in SeAH's case based her decision, in part, on this Federal Circuit ruling, holding that Commerce had to either reconsider its use of the test or further explain why these statistical requirements are not necessary in this instance.

Commerce was scheduled to submit its remand in the SeAH case on Dec. 17 to address this issue. However, the agency then filed a request for an extra 130 days to submit the remand, pushing the deadline out until April 2022. The sole reason for the request was that Commerce's reconsideration of the Cohen's d test should be delayed until after it reconsiders the use of the test in the Federal Circuit case. "But there is no actual reason why Commerce cannot address that issue in this appeal before the [Federal Circuit] remand is completed," SeAH argued.

SeAH argues the extension requested by Commerce should be denied. The Federal Circuit opinion was issued over four months ago, and "Commerce has had ample time to decide how it should address the methodological issue raised by the Federal Circuit’s decision," the brief said. "... There is simply no logical reason that Commerce cannot address that issue in a timely manner in this appeal before it addresses the issue in the [Federal Circuit] remand." The appellate court case did not involve unique facts and instead was based on a "basic inconsistency" created by Commerce's use of the Cohen's d test inconsistent with "widely-adopted statistical practice," SeAH argued.

Also, any decision in the Federal Circuit remand is likely to end up as "irrelevant to Commerce's remand determination in this appeal," SeAH said. "According to our calculations, SeAH’s dumping margins during the period covered by this appeal would have been de minimis if Commerce had calculated those margins without making an unlawful adjustment for an alleged particular market situation (“PMS”), even if Commerce continued to use the unfavorable average-to-transaction comparison methodology based on its misuse of the Cohen’s d test. Consequently, it should not matter in the end whether Commerce continues to use the Cohen’s d test in this case or not, as long as Commerce properly calculates constructed value for SeAH without a PMS adjustment."