CAFC Denies Rehearing Bid After Rejecting PMS Adjustment for Sales-Below-Cost Test

The U.S. Court of Appeals for the Federal Circuit denied on March 16 U.S. pipe maker Welspun Tubular's motion for rehearing in a case on whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test when calculating normal value in an antidumping duty proceeding. The appellate court issued a two-page order denying the en banc rehearing motion without a further explanation (Hyundai Steel Company v. United States, Fed. Cir. #21-1748).

In the case, brought by Hyundai Steel Company, the Federal Circuit held that the statute -- namely, a portion of the 2015 Trade Preferences Extension Act -- only permits a PMS adjustment for constructed value (see 2112100039). The decision upheld a long line of Court of International Trade opinions finding the same. Welspun said that the decision was wrongly decided, arguing that Commerce's interpretation of the AD statute is entitled to "special deference" and that ordinary canons of statutory construction in administrative law contexts has reduced force and cannot satisfy step one of the Chevron deference test (see 2202090045).

U.S. Steel and Nucor Corporation had filed amicus briefs in support of the motion to rehear (see 2202280047). U.S. Steel argued that Hyundai's case is a price-to-price PMS case and actually does not concern the sales-below-cost test. It said Commerce created a modified sales-below-cost test that boosted respondents' costs to account for any PMS distortions and disregarded any prices deemed outside the ordinary course of trade, dropping any purpose of a sales-below-cost test.