US Steel Makes Case for Amicus Appearance in CAFC Case Over PMS Adjustment

Steel giant U.S. Steel argued that it should be able to file an amicus brief at the U.S. Court of Appeals for the Federal Circuit to support antidumping duty petitioner Welspun Tubular in the company's bid to get a full court rehearing on a key AD question. The rehearing request concerns whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test. U.S. Steel says it can address the importance of PMS provisions in proceedings involving products not made by Welspun (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).

U.S. Steel's brief comes in a case, Hyundai Steel v. United States, in which the Federal Circuit ruled that the statute -- a portion of the 2015 Trade Preferences Extension Act -- does not permit a PMS adjustment to the cost of production in the sales-below-cost test (see 2112100039). Rather, the appellate court said that a PMS adjustment is only allowed for constructed value. The petitioner of the relevant AD order, Welspun, filed for a full court rehearing, arguing that Commerce is entitled to greater deference over the PMS adjustment question (see 2202090045).

U.S. Steel on Feb. 22 moved for leave to file its amicus brief. In addition to saying that it can speak to the importance of the PMS provisions for goods that Welspun does not produce, U.S. Steel said that it can address the difficulty of accurately addressing dumping "in the face of unmitigated cost distortions" to products made by U.S. Steel and not Welspun.

"Finally, from a policy perspective, U.S. Steel can confirm that the harms Welspun elucidated in its papers and during oral argument posed by a narrow interpretation of the statute are all too real, and can further speak from U. S. Steel’s own experience with respect to the difficulty of convincing Commerce to entertain the alternative statutory pathways that the Hyundai opinion left open," the brief said.

The brief itself, attached to the motion for leave to file as an amicus, argued that the Hyundai Steel case is a price-to-price PMS case and actually does not concern the sales-below-cost test. In fact, Commerce created a modified sales-below-cost test that boosted respondents' costs to account for any PMS distortions and tossed any prices deemed outside the ordinary course of trade. "This left no practical purpose in performing a separate [sales-below-cost test], as the SBC Test would merely flag some subset of the home market prices already excluded by the PMS Comparability Test," U.S. Steel said.

The amicus brief further argues that the Federal Circuit's reasoning created "improper barriers" to testing the effect of a PMS on prices used to find a dumping margin. "Put simply, the important question that Hyundai has not resolved was whether the TPEA, by amending the 'ordinary course of trade' language in 19 U.S.C. § 1677(15), required that Commerce identify PMS-affected home market prices that cannot be 'proper[ly] compar[ed]' to U.S. prices, and exclude these from normal value as being outside the ordinary course of trade," the brief said. "It does."