AD Petitioner Wants 1 CAFC Appeal Tossed, 1 Maintained Over PMS Adjustment Issue

Antidumping duty petitioner Wheatland Tube Co. wants one of its appeals of an antidumping duty case over whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test dismissed at the U.S. Court of Appeals for the Federal Circuit, but says one other appeal should be kept alive. Filing a motion for voluntary dismissal, Wheatland said that its case was held in abeyance pending an appeal of the key case, Hyundai Steel Co v. U.S., to the Supreme Court, in which the Federal Circuit said that Commerce cannot make a PMS adjustment to the sales-below-cost test (see 2112100039). Since no writ of certiorari was filed to the nation's highest court by Wheatland in the Hyundai Steel case, the court should toss the present appeal, the petitioner argued.

The appellees in the case, Husteel Co. and Hyundai Steel, didn't consent to Wheatland's motion, telling the petitioner that they would file their own responses with the court (Husteel Co., Ltd. v. United States, Fed. Cir. #22-1300).

In another appeal, Wheatland argued in comments on continuing the appeal that the Hyundai Steel decision does not fully resolve the case's issues, warranting court action keeping the case alive. While the court said in Hyundai Steel that Commerce cannot make a PMS adjustment when conducting the sales-below-cost test, the court pointed out scenarios where a cost-based PMS could be addressed by Commerce, the petitioner said. During the first remand period at CIT in this case, Commerce sought one of these exceptions, the brief said (Saha Thai Steel Pipe Public Co. v. United States, Fed. Cir. #22-1173).

In particular, the Hyundai Steel court said that Commerce cannot make a PMS adjustment where normal value was based on home market prices but that the statute gives commerce the power to address home market sales affected by a PMS while still passing the sales-below-cost test by finding that those sales don't allow for a proper comparison with export price, Wheatland argued. In the present case, Commerce said that the home market sales were outside the ordinary course of trade, given the cost-based PMS, basing normal value on constructed value.

"We submit that the rejection of Commerce’s first remand results in Saha Thai II was in error, as the trade court foreclosed a path as statutorily prohibited when the Hyundai Steel Court later explained that this path is in fact legally permitted," Wheatland said. "The trade court’s subsequent affirmance of the directed removal of the PMS adjustment on this basis was thus also in error. At a minimum, this appeal presents the issue of whether the course taken by Commerce in the first remand determination is permissible under Hyundai Steel or can be more fully explained by the agency to demonstrate its compliance with Hyundai Steel. This appeal must continue so that these questions can be resolved."