SeAH Steel Corp. v. United States , 2023 CIT 21 ( 2023 )


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  •                                  Slip Op. 23-21
    UNITED STATES COURT OF INTERNATIONAL TRADE
    SEAH STEEL CORPORATION,
    Plaintiff,
    HUSTEEL CO., LTD., NEXTEEL
    CO., LTD., AJU BESTEEL CO.,
    LTD., and ILJIN STEEL
    CORPORATION,
    Consolidated Plaintiffs,
    and
    HYUNDAI STEEL COMPANY and
    ILJIN STEEL CORPORATION,
    Plaintiff-Intervenors,             Before: Jennifer Choe-Groves, Judge
    v.                                       Consol. Court No. 19-00086
    UNITED STATES,
    Defendant,
    and
    UNITED STATES STEEL
    CORPORATION, MAVERICK
    TUBE CORPORATION, TENARIS
    BAY CITY, INC., IPSCO
    TUBULARS INC., VALLOUREC
    STAR, L.P., and WELDED TUBE
    USA INC.,
    Defendant-Intervenors.
    Consol. Court No. 19-00086                                                  Page 2
    OPINION AND ORDER
    [Denying the motion for reconsideration.]
    Dated: February 23, 2023
    Jeffrey M. Winton, Michael Chapman, Amrietha Nellan, and Vi N. Mai, Winton
    & Chapman PLLC, of Washington, D.C., for Plaintiff SeAH Steel Corporation.
    Donald B. Cameron, Julie C. Mendoza, R. Will Planert, Brady W. Mills, Mary S.
    Hodgins, and Eugene Degnan, Morris, Manning & Martin LLP, of Washington
    D.C., for Consolidated Plaintiff Husteel Co., Ltd.
    J. David Park, Henry D. Almond, Daniel R. Wilson, Leslie C. Bailey, and Kang
    Woo Lee, Arnold & Porter Kaye Scholer LLP, of Washington, D.C., for
    Consolidated Plaintiff NEXTEEL Co., Ltd. and Plaintiff-Intervenor Hyundai Steel
    Company.
    Jarrod M. Goldfeder, Trade Pacific PLLC, of Washington, D.C., for Consolidated
    Plaintiff AJU Besteel Co., Ltd. and Consolidated Plaintiff and Plaintiff-Intervenor
    ILJIN Steel Corporation.
    Hardeep K. Josan, Trial Attorney, International Trade Field Office, Commercial
    Litigation Branch, Civil Division, U.S. Department of Justice, of New York, N.Y.,
    for Defendant United States. Also on the brief were Brian M. Boynton, Acting
    Assistant Attorney General, Jeanne E. Davidson, Director, and Claudia Burke,
    Assistant Director. Of counsel on the brief was Mykhaylo Gryzlov, Senior
    Counsel, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S.
    Department of Commerce, of Washington, D.C.
    Thomas M. Beline, Myles S. Getlan, James E. Ransdell, and Nicole Brunda,
    Cassidy Levy Kent (USA) LLP, of Washington, D.C., for Defendant-Intervenor
    United States Steel Corporation.
    Gregory J. Spak, Frank J. Schweitzer, Kristina Zissis, and Matthew W. Solomon,
    White & Case LLP, of Washington, D.C., for Defendant-Intervenors Maverick
    Tube Corporation, Tenaris Bay City, Inc., and IPSCO Tubulars Inc.
    Roger B. Schagrin, Christopher T. Cloutier, Elizabeth J. Drake, Kelsey M. Rule,
    Consol. Court No. 19-00086                                                   Page 3
    Luke A. Meisner, Paul W. Jameson, and William A. Fennell, Schagrin Associates,
    of Washington, D.C., for Defendant-Intervenors Vallourec Star, L.P. and Welded
    Tube USA Inc.
    Choe-Groves, Judge: Plaintiff SeAH Steel Corporation (“SeAH”),
    Consolidated Plaintiffs Husteel Co., Ltd., NEXTEEL Co., Ltd., AJU Besteel Co.,
    Ltd., and ILJIN Steel Corporation, and Plaintiff-Intervenors Hyundai Steel
    Company and ILJIN brought this consolidated action challenging the final results
    published by the U.S. Department of Commerce (“Commerce”) in the 2016–2017
    administrative review of the antidumping duty order on oil country tubular goods
    (“OCTG”) from the Republic of Korea. See Certain Oil Country Tubular Goods
    From the Republic of Korea (“Final Results”), 
    84 Fed. Reg. 24,085
     (Dep’t of
    Commerce May 24, 2019) (final results of antidumping duty admin. review; 2016–
    2017); see also Issues and Decision Mem. for the Final Results of the 2016–2017
    Admin. Review of the Antidumping Duty Order on Certain Oil Country Tubular
    Goods from the Republic of Korea (May 17, 2019) (“Final IDM”), ECF No. 20-5.
    The Court sustained the Final Results, as amended by the Final Results of
    Redetermination Pursuant to Court Remand (“Remand Results”), ECF No. 118-1,
    and entered judgment for Defendant United States (“Defendant”). J., ECF No.
    148; SeAH Steel Corp. v. United States (“SeAH I”), 
    45 CIT __
    , 
    513 F. Supp. 3d 1367
     (2021); SeAH Steel Corp. v. United States (“SeAH II”), 
    46 CIT __
    , 
    589 F. Supp. 3d 1267
     (2022).
    Consol. Court No. 19-00086                                                     Page 4
    Before the Court is the Motion for Reconsideration, ECF No. 149, filed by
    SeAH. SeAH moves pursuant to USCIT Rule 59(e) for the Court to reconsider and
    rescind the prior Opinion and Judgment, in which this Court sustained
    Commerce’s differential pricing analysis in SeAH Steel Corp. v. United States, 
    45 CIT __
    , 
    513 F. Supp. 3d 1367
     (2021). Mot. Recons. at 1. SeAH asserts that the
    Court should remand the differential pricing analysis issue due to the issuance of
    Stupp Corp. v. United States (“Stupp”), 
    5 F.4th 1341
     (Fed. Cir. 2021). 
    Id.
     at 2–4.
    SeAH argues also that the Court erred in sustaining Commerce’s flawed
    explanation of SeAH’s account of how SeAH’s cost of materials was reported. 
    Id.
    at 4–8. Defendant opposes SeAH’s Motion for Reconsideration. Def.’s Resp.
    Opp’n SeAH Steel Corporation’s Mot. Recons. (“Def.’s Opp’n”), ECF No. 151.
    For the reasons that follow, the Court denies the Motion for Reconsideration.
    BACKGROUND
    The Court presumes familiarity with the facts and procedural history set
    forth in its prior opinion and recounts the facts relevant to the Court’s review of the
    Motion for Reconsideration. See SeAH I, 45 CIT at __, 513 F. Supp. 3d at 1376–
    77; SeAH II, 46 CIT at __, 589 F. Supp. 3d at 1272–73.
    In the Final Results, Commerce applied a differential pricing analysis and
    calculated SeAH’s weighted-average duty margin using the alternative average-to-
    transaction method. Final IDM at 60–71. Commerce included inventory valuation
    Consol. Court No. 19-00086                                                   Page 5
    losses in SeAH’s general and administrative (“G&A”) expenses. Id. at 82–83.
    The Court issued SeAH I on April 14, 2021. In SeAH I, the Court
    considered six Rule 56.2 motions for judgment on the agency record and nine
    issues presented by the Parties. See SeAH I, 45 CIT at __, 513 F. Supp. 3d at
    1375–76. Relevant here, the Court held that: (1) Commerce’s application of the
    Cohen’s d test, the 0.8 threshold, and the 33% and 66% ratio test thresholds were
    in accordance with the law; Commerce’s explanation for why the A-to-A method
    could not account for the pattern of price differences in SeAH’s sales was in
    accordance with the law; and Commerce’s use of the alternative A-to-T method to
    calculate SeAH’s dumping margin was in accordance with the law, id. at __, 355
    F. Supp. 3d at 1379–85; and (2) Commerce’s decision to include SeAH’s inventory
    valuation losses as G&A expenses was not supported by substantial evidence
    because Commerce did not cite relevant record evidence, id. at __, 355 F. Supp. 3d
    at 1405–06.
    The U.S. Court of Appeals for the Federal Circuit issued Stupp on July 15,
    2021, remanding Commerce’s use of the Cohen’s d test for further explanation as
    to “whether the limits on the use of the Cohen’s d test prescribed by Professor
    Cohen and other authorities were satisfied in this case or whether those limits need
    not be observed when Commerce uses the Cohen’s d test in . . . adjudications.”
    Stupp, 5 F.4th at 1341, 1357–60.
    Consol. Court No. 19-00086                                                    Page 6
    In the Remand Results, Commerce continued to include inventory valuation
    losses in SeAH’s G&A expenses. Remand Results at 24–27.
    In SeAH II, the Court sustained Commerce’s inclusion of SeAH’s inventory
    valuation losses in SeAH’s G&A expenses ratio because Commerce provided
    further explanation with additional details and citations to record evidence that
    sufficiently demonstrated that the inventory valuation losses were recognized as
    actual in SeAH’s normal books and records. SeAH II, 46 CIT at __, 589 F. Supp.
    3d at 1285–88. The Court entered judgment for Defendant.
    JURISDICTION AND STANDARD OF REVIEW
    The Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(iii) and 
    28 U.S.C. § 1581
    (c), which grant the Court authority to review actions contesting the
    final results of an administrative review of an antidumping duty order. The Court
    will hold unlawful any determination found to be unsupported by substantial
    record evidence or otherwise not in accordance with the law. 19 U.S.C.
    § 1516a(b)(1)(B)(i).
    DISCUSSION
    SeAH asks the Court to reconsider its decision affirming Commerce’s
    differential pricing analysis and inclusion of SeAH’s inventory valuation losses in
    SeAH’s G&A expense ratio. Mot. Recons. at 2. Defendant argues that there is no
    Consol. Court No. 19-00086                                                     Page 7
    basis for the Court to reconsider its decision regarding the differential pricing
    analysis and inventory valuation losses. Def.’s Opp’n at 4–9.
    USCIT Rule 59(e) provides that:
    A motion to alter or amend a judgment must be served no later than 30
    days after the entry of the judgment.
    USCIT R. 59(e). “The major grounds justifying a grant of a motion to reconsider a
    judgment are an intervening change in the controlling law, the availability of new
    evidence, the need to correct a clear factual or legal error, or the need to prevent
    manifest injustice.” Ford Motor Co. v. United Sates, 
    30 CIT 1587
    , 1588 (2006)
    (citing Virgin Atl. Airways, Ltd. v. Nat’l Mediation Bd., 
    956 F.2d 1245
    , 1255 (2d
    Cir. 1992)).
    I.       Commerce’s Use of the Cohen’s d Test
    In Stupp, the U.S. Court of Appeals for the Federal Circuit (“CAFC”)
    remanded Commerce’s use of the Cohen’s d test for further explanation because
    the data Commerce used may have violated the assumptions of normality,
    sufficient observation size, and roughly equal variances. 5 F.4th at 1357–60. The
    CAFC addressed Commerce’s argument that Commerce does not need to worry
    about normality because it is using a population instead of a sample, stating that
    Commerce’s argument “does not address the fact that Professor Cohen derived his
    interpretive cutoffs under the assumption of normality.” Id.
    Consol. Court No. 19-00086                                                     Page 8
    Commerce applied its two-step differential pricing methodology in this case,
    the first step of which was the Cohen’s d test. See Prelim. Decision Mem.
    (“Prelim. DM”) at 11–13, PD 274 (Oct. 3, 2018); Final IDM at 5–6, 71 (applying
    the same methodology as in the Prelim. DM without change to its differential
    pricing methodology). The standard of review for considering Commerce’s
    differential pricing analysis is reasonableness. Stupp, 5 F.4th at 1353. The CAFC
    and the U.S. Court of International Trade have held the steps underlying the
    differential pricing analysis as applied by Commerce to be reasonable. See e.g.,
    Mid Continent Steel & Wire, Inc. v. United States, 
    940 F.3d 662
    , 670–74 (Fed.
    Cir. 2019) (discussing zeroing and the 0.8 threshold for the Cohen’s d test); Apex
    Frozen Foods Priv. Ltd. v. United States, 
    40 CIT __
    , __, 
    144 F. Supp. 3d 1308
    ,
    1314–35 (2016) (discussing application of the A-to-T method, the Cohen’s d test,
    the meaningful difference analysis, zeroing, and the “mixed comparison
    methodology” of applying the A-to-A method and the A-to-T method when 33–
    66% of a respondent’s sales pass the Cohen’s d test), aff’d, 
    862 F.3d 1337
     (Fed.
    Cir. 2017); Apex Frozen Foods Priv. Ltd. v. United States, 
    862 F.3d 1322
     (Fed.
    Cir. 2017) (affirming zeroing and the 0.5% de minimis threshold in the meaningful
    difference test). However, the CAFC has stated that “there are significant concerns
    relating to Commerce’s application of the Cohen’s d test . . . in adjudications in
    Consol. Court No. 19-00086                                                         Page 9
    which the data groups being compared are small, are not normally distributed, and
    have disparate variances.” Stupp, 5 F.4th at 1357.
    The Cohen’s d test is “a generally recognized statistical measure of the
    extent of the difference between the mean of a test group and the mean of a
    comparison group.” Apex Frozen Foods, 862 F.3d at 1342 n.2. The Cohen’s d test
    relies on assumptions that the data groups being compared are normal, have equal
    variability, and are equally numerous. See Stupp, 5 F.4th at 1357. Applying the
    Cohen’s d test to data that do not meet these assumptions can result in “serious
    flaws in interpreting the resulting parameter.” See id. at 1358.
    The Court concludes that SeAH has not raised a ground justifying a grant of
    its Motion for Reconsideration of the judgment. 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 IDM 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.’” 45 CIT at __, 513 F. Supp. 3d at 1382–83 (emphasis
    added) (quoting Final IDM at 66). Based on Commerce’s explanation, this Court
    concluded in SeAH I that “Commerce’s application of the Cohen’s d test to
    Consol. Court No. 19-00086                                                    Page 10
    determine whether there was a significant pattern of differences was reasonable.
    Commerce did not need to consider sample size, sample distribution, and the
    statistical significance of the sample.” Id. The concerns described in Stupp that
    might be raised when the Cohen’s d test is applied to samples are inapplicable
    because in this case, Commerce applied the Cohen’s d test to a population.
    SeAH has not presented a ground justifying reconsideration of the judgment
    pursuant to USCIT Rule 59(e) and the Court will not disturb its previous decision
    regarding Commerce’s use of its differential pricing analysis, in particular its
    application of the Cohen’s d test. The Court denies SeAH’s Motion for
    Reconsideration as to the differential pricing analysis issue.
    II.    Inventory Valuation Losses
    SeAH argues that Commerce’s inclusion of inventory valuation losses in its
    G&A expense ratio is unsupported by substantial evidence and the Court should
    reconsider and reverse its conclusion sustaining Commerce’s determination. Mot.
    Recons. at 7–8.
    SeAH provides no new controlling law, evidence, or arguments but instead
    continues to dispute Commerce’s determination. See id. at 4–8. 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
    Consol. Court No. 19-00086                                                 Page 11
    calculating SeAH’s costs resulted in double counting of SeAH’s actual cost of
    materials. Id. at 4–5. SeAH asserts that the Court erred in relying on Commerce’s
    explanation of SeAH’s account of how SeAH’s cost of materials was reported. Id.
    Because the Court evaluated SeAH’s arguments, Commerce’s explanation, and the
    record evidence already in SeAH I and SeAH II and SeAH has not presented a
    ground justifying reconsideration of the judgment pursuant to USCIT Rule 59(e),
    the Court will not disturb its previous decision regarding Commerce’s treatment of
    SeAH’s inventory valuation losses. The Court denies SeAH’s Motion for
    Reconsideration as to the inventory valuation losses issue.
    CONCLUSION
    For the foregoing reasons, the Court denies the Motion for Reconsideration
    as to the Cohen’s d test and inventory valuation losses. Accordingly, it is hereby
    ORDERED that the Motion for Reconsideration, ECF No. 149, is denied.
    /s/ Jennifer Choe-Groves
    Jennifer Choe-Groves, Judge
    Dated:    February 23, 2023
    New York, New York
    

Document Info

Docket Number: Consol. 19-00086

Citation Numbers: 2023 CIT 21

Judges: Choe-Groves

Filed Date: 2/23/2023

Precedential Status: Precedential

Modified Date: 2/23/2023