CIT Upholds Commerce Reversion to Preliminary Determination's Model Match in Korean SAP Investigation
The Court of International Trade upheld Dec. 17 the Commerce Department’s decision to swap back to the model match methodology it had used earlier in a review of antidumping duty orders on superabsorbent polymers from South Korea. The change meant administrative review mandatory respondent LG Chem’s AD rate jumped back up, from 17.64% to 26.05%.
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Petitioner Ad Hoc Coalition of American SAP Producers brought their case challenging Commerce’s methodology switch between its preliminary and final determinations. The switch had been requested by LG Chem, whch asked the department to rely on three product characteristics -- liquid retention, permeability and absorbency under pressure -- instead of just one, liquid retention. The respondent also sought to have Commerce use narrower categories for calculating the grades of its products: five groupings using 4 g/g increments instead of three using 6 g/g increments. The department did both in its final determination, but scrapped the changes after its final determination was remanded by CIT in March (see 2403080064).
Specifically, in his March opinion, CIT Judge Thomas Aquilino raised the concern that Commerce hadn’t verified information for any physical product characteristics other than liquid retention. He also held that Commerce hadn’t supported with substantial evidence the conclusion that the narrower increments and other two product characteristics were commercially significant, and he said the department failed to address the petitioner’s argument that LG Chem’s proposed method was “distortive and unusable.”
In its opposition to Commerce’s remand redetermination, LG Chem argued that Commerce was just falling in line with the trade court instead of seeking more evidence or conducting any further analysis, which its role as the fact-finder required (see 2408290042).
Aquilino said that the exporter was “correct that the prior opinion did not preclude [Commerce] from evaluating the record in support of its preferred 4 g/g divisions” and its other two proposed physical product characteristics. But the department wasn’t required to do so, he said. He said he had only overturned Commerce’s departure from the model match methodology it used in its preliminary determination because the department itself requires a “compelling reason” to make changes like that, and it hadn’t met that standard. Now, presented with two “fairly conflicting” methods, “it is not the function of the court to re-weigh one set against the other, to determine which model match is ‘better,’” the judge said. To do so, he said, would be to “substitute [the court’s] judgment” for Commerce’s.
He dealt quickly with LG Chem’s other claim, that Commerce had failed to obey the remand order because it hadn’t addressed Ad Hoc Coalition’s argument that LG Chem’s method was “distortive.” Because the department had stopped using LG Chem’s method, it no longer needed to analyze it, Aquilino said.
(The Ad Hoc Coalition of American SAP Producers v. United States, Slip Op. 24-141, CIT # 23-00010, dated 12/17/2024; Judge: Thomas Aquilino; Attorneys: Stephen Orava of King & Spaulding for plaintiff Ad Hoc Coalition of American SAP Producers; Kyle Beckrich for defendant U.S. government; J. David Park of Arnold & Porter for defendant-intervenor LG Chem)