Commerce Improperly Considered Out-of-Scope Product in AD Review, Exporter Argues
Commerce should not have excluded sales of certain cylinders sold by Sahamitr Pressure Container in its home market or used the average-to-transaction (A-T) price comparison method in its calculations, the Thai exporter said in a May 8 complaint to the Court of International Trade. SMPC asked the trade court to declare that Commerce's exclusion of certain cylinders from the calculation as out of scope, as well as and its use of the A-T price comparison method, was in error and to remand the results to Commerce (Sahamitr Pressure Container v. United States, CIT # 23-00077).
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At Commerce's request in the original investigation, SMPC had reported the nominal gas capacity based on customers instead of converting from water capacity. Over the course of the review, SMPC said it responded to several follow-up questions from Commerce regarding its capacity reporting, SMPC said.
Then, less than a month before the deadline, petitioner Worthington Industries alleged that certain cylinders sold by SMPC in the home market were “refrigerant cylinders” rather than propane cylinders and that SMPC had used converted water capacity. Worthington alleged that SMPC's conversion ratio was not relevant for refrigerant cylinders and those cylinders were “outside the scope” of the antidumping duty order. SMPC filed rebuttal comments, but Commerce ultimately agreed with Worthington and removed sales of the accused cylinders from its margin calculations. Despite having relied on SMPC’s customer information and sales and technical documents in the original investigation and in the preliminary results of the review, Commerce found it couldn't rely on SMPC's records, the exporter said.
SMPC also argued that Commerce improperly used the A-T price comparison method despite "both statute and regulation" prioritizing the use of an average-to-average (A-A) price comparison method to calculate a dumping margin. According to the statute, Commerce can use an A-T comparison method only if “there is a pattern of export prices for comparable merchandise that differ significantly among purchasers, regions, or periods of time," SMPC said. Commerce uses the Cohen’s d test to determine whether such price differences exist. The d test is subject to certain assumptions and requirements that the department "neither followed nor explained," SMPC said. "Thus, Commerce's continued use of the A-T price comparison method was unsupported by substantial evidence.
Recent U.S. Court of Appeals for the Federal Circuit precedent held that the meaningfulness of the Cohen’s d coefficient relies on assumptions that the test groups and comparison groups must be “normally distributed," “of sufficient size" and “of roughly equal variances.” Commerce did not explain whether these three assumptions were met in its review results, SMPC said. “'Absent a reasonable explanation,' SMPC further argued, 'the Department cannot rely on the Cohen’s d test to justify use of the A-T comparison method (with zeroing),'” SMPC said.