AD Respondent Fights for Rehearing at CIT Over Use of 'd' Test After CAFC Opinion
The Court of International Trade should 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, given a recent U.S. Court of Appeals for the Federal Circuit decision, plaintiff SeAH Steel Corp. argued in a Nov. 21 reply brief. Responding to the U.S.'s opposition to the rehearing bid, SeAH said that since the Federal Circuit called the use of the Cohen's d test into question in Stupp Corp. v. U.S., the trade court needs to reconsider its ruling made before the CAFC decision (SeAH Steel Corp. v. United States, CIT #19-00086).
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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 about the use of the Cohen's d statistical test relied upon in the DPA. The appellate court said that Commerce's use of the test 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 (see 2210310035).
In its reply, SeAH said that the U.S. "conceded that the remand proceeding" in Stupp is ongoing, so the appellate court has not yet issued a ruling on its defense of the DPA. "As such, the question still remains whether Commerce’s DPA is valid and lawful," the brief said. "Because the Federal Circuit’s Stupp holding implicates this Court’s holding in its April 14, 2021, decision, further remand for Commerce to explain or reconsider its application of the Cohen’s d test as part of Commerce’s DPA is necessary to avoid manifest error." A reconsideration is also needed to address Commerce's treatment of inventory valuation losses, the respondent argued.