AD Respondents Failed to Exhaust Remedies Over 'd' Test Arguments, Petitioner Tells CIT
Antidumping duty respondents HiSTeel and Dong-A-Steel failed to exhaust their administrative remedies over their claims that the Commerce Department illegally used the Cohen's d test when rooting out "masked dumping," AD petitioner Nucor Tubular Products argued in a Dec. 21 reply brief at the Court of International Trade. The plaintiffs had seven weeks after the U.S. Court of Appeals for the Federal Circuit released an opinion calling the use of the test into question until the end of the deadline for factual information, yet the respondents did not add the opinion to the record (HiSteel v. U.S., CIT #22-00142).
Sign up for a free preview to unlock the rest of this article
If your job depends on informed compliance, you need International Trade Today. Delivered every business day and available any time online, only International Trade Today helps you stay current on the increasingly complex international trade regulatory environment.
The case concerns the administrative review of the antidumping duty order on heavy walled rectangular welded carbon steel pipes and tubes from South Korea. In the review, to detect masked dumping, Commerce used Cohen's d test as part of its differential pricing analysis. The agency found that masked dumping was occurring, and decided to use the average-to-transaction method to calculate the dumping margin. HiSteel and Dong-A filed suit at CIT against the decision (see 2206080062).
The Federal Circuit in its July 2021 decision in Stupp v. U.S. called into question the use of the Cohen's d test, finding that it failed to abide by certain assumptions required of the test, including a normal distribution of the data and roughly equal variances (see 2107150032). However, the U.S. has argued it does need to abide by these assumptions since it is using the total population of the data in question instead of just a sample. This has been the government's defense in all cases involving the Cohen's d test, and the claims now await a ruling from the Federal Circuit.
Nucor argued in this case that the plaintiffs failed to exhaust their administrative remedies over this test. HiSteel and Dong-A failed to give Commerce the academic literature their arguments are based on by placing the literature on the record. "Plaintiffs rely heavily on Stupp to support their claims, yet this case only serves to emphasize Plaintiffs’ failure to exhaust their administrative remedies," the brief said. "The Federal Circuit published Stupp on July 15, 2021. The deadline for factual information in this review was August 31, 2021, nearly 7 weeks after the Stupp decision. Plaintiffs have no excuse for failing to place this literature on the record and then making arguments based on the literature."
The petitioner, along with the U.S. in a separate reply brief, again made the defense of the d test revolving around the fact that the agency used the total population of the U.S. sales prices data and not just samples.