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CIT Says Use of Whole Population Negates Questions Raised by CAFC Over 'd' Test in AD Review

The use of an entire population of data instead of a sample "sufficiently negates" the questions raised by the U.S. Court of Appeals for the Federal Circuit on the use of the Cohen's d test in the differential pricing analysis to root out "masked" dumping, the Court of International Trade held in a Feb. 23 opinion rejecting antidumping duty respondent SeAH Steel Corp.'s bid for reconsideration.

The case stems from the 2016-17 administrative review of the antidumping duty order on oil country tubular goods from South Korea in which Commerce used its differential pricing analysis to calculate SeAH's dumping margin using the alternative average-to-transaction method. The trade court upheld Commerce's final results in April 2021.

A few months later the Federal Circuit in Stupp Corp. v. U.S. remanded the use of the d test in a different AD proceeding. The appellate court said that Commerce's use of the test violated the key statistical assumptions of normality, observation size and roughly equal variances (see 2107150032).

However, Judge Jennifer Choe-Groves, said that the use of the d test still stands in the OCTG case, given that in the review Commerce used an entire population of data as opposed to a sample, so the Federal Circuit's questions in Stupp were inapplicable.

"The Court concludes that SeAH has not raised a ground justifying a grant of its Motion for Reconsideration of the judgment," the opinion said. "Commerce’s use of a population, rather than a sample, in the application of the Cohen’s d test sufficiently negates the questionable assumptions about thresholds that were raised in Stupp. As this Court considered in SeAH I, Commerce explained in the Final [issues and decision memo] that 'application of the Cohen’s d test was appropriate because ‘the U.S. sales data ... reported to Commerce constitute a population. As such, sample size, sample distribution, and the statistical significance of the sample are not relevant to Commerce’s analysis.''

SeAH also vied for reconsideration on the grounds that Commerce's inclusion of inventory valuation losses in its general and administrative expense ratio was unsupported by substantial evidence. "SeAH provides no new controlling law, evidence, or arguments but instead continues to dispute Commerce’s determination," Choe-Groves said. "SeAH repeats its arguments, which the Court considered already, that SeAH’s cost calculations reflected the full historical cost of the raw-materials and work-in-process inventories used in production and including SeAH’s inventory valuation losses in calculating SeAH’s costs resulted in double counting of SeAH’s actual cost of materials."

(SeAH Steel Corp., et al. v. United States, Slip Op. 23-21, CIT Consol. #19-00086, dated 02/23/22, Judge Jennifer Choe-Groves. Attorneys: Jeffrey Winton of Winton & Chapman for plaintiff SeAH Steel Corp.; Hardeep Josan for defendant U.S. government)