CIT Upholds Commerce's Decision to Drop PMS Finding in South Korean AD Review

The Court of International Trade in an Aug. 29 opinion upheld the Commerce Department's decision to reverse its finding that a particular market situation existed for an input of oil country tubular goods in South Korea. The court previously remanded the PMS determination as being unsupported by substantial evidence. The agency then flipped its finding, prompting Judge Jennifer Choe-Groves to sustain the remand results. Previously, the judge also sent back Commerce's use of the Cohen's d test to root out masked dumping, but since respondent SeAH Steel Corp. was given a de minimis dumping margin, the issue was moot.

The case concerns the 2017-18 administrative review of the antidumping duty order on OCTG from South Korea. In the review, Commerce laid out five factors that it said created a PMS for the subject goods in South Korea, including the use of hot-rolled coil, a key OCTG input, as well as subsidization by the South Korean government and Chinese overcapacity. The court, in an October 2021 decision, said that there wasn't enough evidence to support that position (see 2110190075). So, Commerce dropped the PMS finding (see 2201260054).

The reversal was contested by the AD petitioner, U.S. Steel Corp., which argued that the trade court cannot direct Commerce to reach a particular outcome. Choe-Groves replied that this argument is "misplaced and inapplicable to this case." The judge ruled that it is settled law that Commerce's remand decisions are reviewed precisely to see if they comply with the court's order and that the court did not in fact order the agency to come to any particular conclusion. "Rather, this Court issued a broad, open-ended remand that ordered Commerce to 'further explain or reconsider its particular market situation determination,'" the opinion said.

In the case's first opinion, the court also sent back Commerce's use of the Cohen's d test -- a statistical test called into question by the U.S. Court of Appeals for the Federal Circuit used to root out masked or targeted dumping. On remand, Commerce said it dropped the PMS adjustment from the calculation of the cost of production and normal value. That meant the weighted-average dumping margins calculated using the average-to-average method and alternative comparison methods are either zero or de minimis -- a result rendering the issue moot. The judge agreed.

"The Court concludes that because Commerce determined SeAH’s dumping margin to be de minimis, it is reasonable for Commerce to not apply the differential pricing analysis," the opinion said. "The Court sustains Commerce’s determination on remand to not apply the differential pricing analysis to calculate SeAH’s dumping margin."

(SeAH Steel Corporation v. United States, Slip Op. 22-101, CIT #20-00150, dated 08/29/22, Judge Jennifer Choe-Groves. Attorneys: Jeffrey Winton of Winton & Chapman for plaintiff SeAH; Hardeep Josan for defendant U.S. government; Thomas Beline of Cassidy Levy for defendant-intervenor U.S. Steel; Gregory Spak of White & Case for defendant-intervenors Maverick Tube Corp., IPSCO Tubulars and Tenaris Bay City; Roger Schagrin of Schagrin Associates for defendant-intervenor Vallourec Star)