Importers Alert CAFC to New Authority in Case Over PMS Adjustment to Sales-Below-Cost Test

Defendant-appellants in a case at the U.S. Court of Appeals for the Federal Circuit over whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test said that the issue had already been decided by the Federal Circuit in a recent decision. In a letter to the appellate court, the defendant-appellants, Nucor Tubular Products, Atlas Tube and Searing Industries, said that they intend to seek initial en banc reconsideration in light of this opinion or a stay of further proceedings pending full resolution of this separate case (Dong-A Steel Company v. United States, Fed. Cir. #21-2153).

The three defendant-appellants are challenging the 2016-17 antidumping duty administrative review of heavy-walled rectangular welded carbon steel pipes and tubes from South Korea wherein Commerce tried to make a PMS adjustment to the sales-below-cost test. In Hyundai Steel Co. v. United States, the Federal Circuit, though, said that no such adjustment was permitted under the statute (see 2112100039). The ADD petitioner in that case, though, stated its intent to seek a full court rehearing of the decision. Nucor, Atlas Tube and Searing laid out their intentions to do the same in the Jan. 31 letter notifying the Federal Circuit of new authority relevant to the appeal.