Federal Circuit Permits US Steel's Amicus Brief in Bid for Full Court Rehearing Over PMS Adjustment
The U.S. Court of Appeals for the Federal Circuit granted American steel giant U.S. Steel's request to appear as an amicus in a key case on whether the Commerce Department can make a particular market situation adjustment to the sales-below-cost test in antidumping proceedings (Hyundai Steel Company v. United States, Fed. Cir. #21-1748). In the case, brought by Hyundai Steel Company, the Federal Circuit found that no such adjustment was permitted by the statute, cementing a long string of Court of International Trade rulings saying the same thing (see 2112100039). The petitioner of the relevant AD order, Welspun, filed for a full court rehearing, prompting U.S. Steel's amicus bid (see 2202250034).
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In its amicus brief, U.S. Steel argued that Hyundai's case is a price-to-price PMS case and actually does not concern the sales-below-cost test. The company argued that Commerce created a modified sales-below-cost test that boosted respondents' costs to account for any PMS distortions and tossed any prices deemed outside the ordinary course of trade, dropping any purpose of a sales-below-cost test. The amicus brief also argues that the Federal Circuit's reasoning created "improper barriers" to testing the effect of a PMS on prices used to find a dumping margin.