US Fends Off Rehearing Bid Over Use of 'd' Test in Antidumping Review Case at CIT

There is no basis for the Court of International Trade to reconsider its decision to uphold the Commerce Department's use of the Cohen's d test as part of its differential pricing analysis (DPA) to root out "masked" dumping or its inclusion of respondent SeAH Steel Corp.'s inventory valuation losses in its general and administrative (G&A) expense calculation, the U.S. said. Replying to SeAH's motion for rehearing at CIT, the government argued that since Commerce has found on remand in the key Stupp Corp. v. U.S. case in which the U.S. Court of Appeals for the Federal Circuit called into question the use of the Cohen's d test that the agency properly used the test, there are no grounds to contest CIT's move to uphold the DPA (SeAH Steel Corp. v. United States, CIT #19-00086).

The case concerns the 2016-17 administrative review of the antidumping duty order on oil country tubular goods from South Korea. In April 2021, CIT found in Stupp that Commerce's DPA was lawful. But in July 2021, the Federal Circuit raised questions over the use of the Cohen's d statistical test relied upon in the DPA. The appellate court said that evidence called into question the use of the test since it violated the key statistical assumption of normality, observation size and roughly equal variances (see 2107150032). Litigation over whether these assumptions need to be followed in Commerce's use of the Cohen's d test continues in various CIT cases.

In its reconsideration motion, SeAH said that given this opinion, the trade court should reconsider its decision because, despite the fact that the Stupp decision concerned a different product, the reasoning is the same (see 2209270039). In its reply, the U.S. pointed to Commerce's remand in Stupp, which said that these statistical assumptions are not relevant to the use of the test since the agency is reviewing the entire population of data and not just a sample. Given Commerce's finding on remand in Stupp, there is no error the trade court can point to in which it can base a reconsideration motion, the U.S. argued.

"The explanation, which this Court sustained as reasonable in this case, is consistent with the explanation that Commerce provided in the Stupp Remand Redetermination that was issued following the remand from the Federal Circuit," the brief said. "Thus, there is no basis for the Court to reconsider its decision here."

SeAH said the court should also reconsider its decision to uphold the inclusion of inventory valuation loss allowances in SeAH's cost calculations. The respondent said that it is undisputed that its cost calculations reflected the full cost of the raw-materials and work-in-process inventories used in making the subject goods. Given this, Commerce double counted SeAH's actual cost of materials by including the inventory-valuation losses. The U.S. replied that SeAH has not shown any error and "merely repeats the arguments it raised during the underlying proceeding, which the Court properly rejected."