Apex Frozen Foods Private Ltd. v. United States , 144 F. Supp. 3d 1308 ( 2016 )


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  •                                      Slip Op. 16-9
    UNITED STATES COURT OF INTERNATIONAL TRADE
    APEX FROZEN FOODS PRIVATE
    LIMITED ET AL.,
    Plaintiffs,
    v.
    Before: Claire R. Kelly, Judge
    UNITED STATES,
    Court No. 14-00226
    Defendant,
    Public Version
    and
    AD HOC SHRIMP TRADE ACTION
    COMMITTEE,
    Defendant-Intervenor.
    OPINION
    [Sustaining U.S. Department of Commerce’s final determination in the eighth
    administrative review of the antidumping duty order covering certain frozen warmwater
    shrimp from India.]
    Dated: February 2, 2016
    Robert Lewis LaFrankie, II, Hughes Hubbard & Reed LLP, of Washington, DC, argued
    for plaintiffs. With him on the brief were Alexandra Bradley Hess and Matthew Robert
    Nicely.
    Patricia Mary McCarthy, Assistant Director, Commercial Litigation Branch, Civil Division,
    U.S. Department of Justice, of Washington DC, argued for defendant. With her on the
    brief were Joshua Ethan Kurland, Trial Attorney, Benjamin C. Mizer, Principal Deputy
    Assistant Attorney General, and Jeanne E. Davidson, Director. Of Counsel on the brief
    was Scott Daniel McBride, Senior Attorney, Office of the Chief Counsel for Trade and
    Compliance, U.S. Department of Commerce, of Washington, DC.
    Nathaniel Jude Maandig Rickard, Picard, Kentz & Rowe, LLP, of Washington DC, argued
    for defendant-intervenor. With him on the brief was Jordan Charles Kahn.
    Court No. 14-00226                                                                    Page 2
    Kelly, Judge: This matter is before the court on Plaintiffs Apex Frozen Foods
    Private Limited, et al.’s (collectively “Plaintiffs”) motion for judgment on the agency record
    pursuant to USCIT Rule 56.2. Plaintiffs contest various aspects of the U.S. Department
    of Commerce’s (“Commerce” or “Department") final determination in the eighth
    administrative review of the antidumping duty order on certain frozen warmwater shrimp
    from India, covering the period of February 1, 2012 through January 31, 2013. See
    generally Certain Frozen Warmwater Shrimp From India, 
    79 Fed. Reg. 51,309
     (Dep’t
    Commerce Aug. 28, 2014) (final results of antidumping duty review; 2012–2013) (“Final
    Results”), as amended, 
    79 Fed. Reg. 55,430
     (Dep’t Commerce Sept. 16, 2014) and
    accompanying Issues and Decision Memorandum for the Final Results of the
    Antidumping Duty Administrative Review of Certain Frozen Warmwater Shrimp from
    India,         A-533-840,         (Aug.        20,         2014),         available        at
    http://enforcement.trade.gov/frn/summary/india/2014-20401-1.pdf (last visited Jan. 25,
    2016) (“Final I&D Memo”); see also Certain Frozen Warmwater Shrimp From India, 
    70 Fed. Reg. 5,147
     (Dep’t Commerce Feb. 1, 2005) (notice of amended final determination
    of sales at less than fair value and antidumping duty order) (“Order”). For the reasons
    set forth below, Commerce’s final results are supported by substantial evidence and in
    accordance with law.
    BACKGROUND
    Commerce issued the antidumping duty order covering certain frozen warmwater
    shrimp from India on February 1, 2005. See Order, 70 Fed. Reg. at 5,147. After receiving
    timely requests to conduct an administrative review from several companies, including
    Court No. 14-00226                                                                        Page 3
    domestic producer Defendant-Intervenor Ad Hoc Shrimp Trade Action Committee
    (“Defendant-Intervenor”), on April 2, 2013 Commerce initiated the eighth administrative
    review of the Order for the period of February 1, 2012 through January 31, 2013. See
    Certain Frozen Warmwater Shrimp From India and Thailand, 
    78 Fed. Reg. 19,639
    ,
    19,639 (Dep’t Commerce Apr. 2, 2013) (notice of initiation of antidumping duty
    administrative reviews); Initiation of Antidumping and Countervailing Duty Administrative
    Reviews and Request for Revocation in Part, 
    78 Fed. Reg. 25,418
    , 25,420 (Dep’t
    Commerce May 1, 2013); see also Request for Administrative Reviews at 1–2, PD 9 at
    bar code 3121314-01 (Feb. 28, 2013).
    Pursuant to Section 777A(c)(2) of the Tariff Act of 1930, as amended, 19 U.S.C.
    § 1677f-1(c)(2) (2012), 1 Commerce found it was not practicable to examine each of the
    known exporters and producers of subject merchandise and thus limited the review to the
    two companies that, according to U.S. Customs and Border Protection (“CBP”) import
    data, accounted for the largest volume of subject merchandise exported to the United
    States to serve as mandatory respondents for the administrative review––(1) Devi
    Fisheries Limited and its affiliates Satya Seafoods Private Limited and Usha Seafoods
    (collectively “Devi Fisheries”); and (2) Falcon Marine Exports Limited and its affiliate K.R.
    Enterprises (collectively “Falcon Marine”). See Selection of Respondents for Individual
    Review at 1–2, 4, PD 25 at bar code 3133307-01 (May 1, 2013); see also Decision
    Memorandum for the Preliminary Results of the 2012-2013 Administrative Review of the
    1
    Further citations to the Tariff Act of 1930, as amended, are to the relevant provisions of Title 19
    of the U.S. Code, 2012 edition.
    Court No. 14-00226                                                                      Page 4
    Antidumping Duty Order on Certain Frozen Warmwater Shrimp from India at 2, A-533-
    840, (Mar. 18, 2014), available at http://enforcement.trade.gov/frn/summary/india/2014-
    06559-1.pdf (last visited Jan. 25, 2016) (“Prelim. I&D Memo”). Accordingly, Commerce
    issued questionnaires to and received responses from Devi Fisheries and Falcon Marine
    from May 2013 through January 2014. See Prelim. I&D Memo at 2–3.
    Commerce published its preliminary results on March 25, 2014. See Certain
    Frozen Warmwater Shrimp From India, 
    79 Fed. Reg. 16,285
    , 16,285 (Dep’t Commerce
    Mar. 25, 2014) (preliminary results of antidumping duty administrative review; 2012-2013)
    (“Prelim. Results”); see also Prelim. I&D Memo at 1. After applying its differential pricing
    analysis, Commerce preliminarily found that the mandatory respondents’ sales revealed
    a pattern of significant export price differences among purchasers, regions, or time
    periods and determined that “compar[ing] . . . the weighted average of the normal values
    to the export prices . . . of individual transactions" (“A-T”) was appropriate to calculate
    dumping margins for both Devi Fisheries and Falcon Marine in the preliminary results.
    See Prelim. I&D Memo at 7; 
    19 C.F.R. § 351.414
    (b)(3) (2013); 2 see also 
    19 C.F.R. § 351.414
    (c)(1). For Devi Fisheries, the results of the differential pricing analysis led
    Commerce to apply A-T to all of Devi Fisheries’ U.S. sales. See Calculations for Devi
    Fisheries Limited for the Preliminary Results at 1–2, CD 136 at bar code 3189206-01
    (Mar. 18, 2014) (“Devi Fisheries’ Prelim. Calcs.”); see also Prelim. I&D Memo at 7. By
    contrast, the differential pricing analysis as applied to Falcon Marine led Commerce to
    2
    Further citations to Title 19 of the Code of Federal Regulations are to the 2013 edition, unless
    otherwise noted.
    Court No. 14-00226                                                                    Page 5
    apply A-T only to the portion of Falcon Marine’s U.S. sales that constituted the observed
    pattern of significant price differences and compared “the weighted average of the normal
    values to the weighted average of the export prices” (“A-A”) for all of its other U.S. sales.
    See Calculations for Falcon Marine Exports Limited for the Preliminary Results at 1–2,
    CD 145 at bar code 3189251-01 (Mar. 18, 2014) (“Falcon Marine Prelim. Calcs.”) 
    19 C.F.R. § 351.414
    (b)(1); see also Prelim. I&D Memo at 7.             Accordingly, Commerce
    preliminarily calculated weighted-average dumping margins of 1.97% for Devi Fisheries
    and 3.01% for Falcon Marine, from which Commerce assigned a rate of 2.49% to the
    other exporters and producers covered by the review. See Prelim. Results, 79 Fed. Reg.
    at 16,286–89.
    Commerce published the final results on August 28, 2014. See generally Final
    Results, 
    79 Fed. Reg. 51,309
    .         Commerce continued to find that the mandatory
    respondents’ sales exhibited a pattern of export prices of comparable merchandise that
    differ significantly among purchasers, regions, or time periods as per the results of the
    differential pricing analysis and made no changes to Devi Fisheries’ or Falcon Marine’s
    margin calculations from the preliminary results. See 
    id. at 51,309
    ; see also Final I&D
    Memo at 1, 22–26, 35–39. Additionally, Commerce reaffirmed its decision to reject
    portions of certain respondents’ 3 (collectively “Respondents”) case brief for containing
    untimely filed new factual information. See Final I&D Memo at 40–42.
    3
    On May 2, 2014, certain respondents submitted a case brief disputing the propriety of the
    differential pricing analysis. See generally Respondents’ Rejected Case Brief, PD 150–51 at bar
    (footnote continued)
    Court No. 14-00226                                                                     Page 6
    Plaintiffs now challenge Commerce’s determination in the final results on
    numerous grounds. First, Plaintiffs initially argued that Commerce did not have the legal
    authority to engage in a targeted dumping analysis or differential pricing analysis and
    thereafter apply A-T in the context of an antidumping duty administrative review. See
    Pls.’ Rule 56.2 Mot. J. Agency R. 10–15, Apr. 3, 2015, ECF No. 36 (“Pls.’ Mot.”). Plaintiffs
    concede in their reply papers that recent precedent from the Court of Appeals for the
    Federal Circuit makes clear that Commerce has the authority to apply the alternative A-T
    method in reviews, however, Plaintiffs still contend that the Court of Appeals for the
    Federal Circuit’s decision is not dispositive and controlling on all of the issues in this case.
    See Plaintiffs’ Reply Brief 3, Sept. 30, 2015, ECF No. 57 (“Pls.’ Reply”). Second, Plaintiffs
    contend Commerce violated the Administrative Procedure Act (“APA”) by not following
    the APA’s notice and comment rulemaking requirement before applying the differential
    pricing analysis. See Pls.’ Mot. 18–20. Third, Plaintiffs argue that Commerce failed to
    comply with the so-called “limiting rule” and “allegation requirement” as provided within
    its regulations.   See 
    id.
     at 15–18.       Fourth, Plaintiffs challenge certain aspects of
    Commerce’s differential pricing analysis. See 
    id.
     at 20–45. Specifically, Plaintiffs argue
    that Commerce (i) failed to establish a discernable pattern of export prices of comparable
    merchandise that differ significantly among purchasers, regions, or time periods because
    code 3199459-01 (May 2, 2014). The respondents who submitted the case brief included the
    following companies: Falcon Marine, Devi Fisheries, Apex Frozen Foods Private Limited, Asvini
    Fisheries Private Ltd., Avanti Feeds Limited, Bluepark Seafoods Private Ltd., Five Star
    MarineExports Private Limited, Jagadeesh Marine Exports, Jayalakshimi Sea Foods Private
    Limited, Liberty-Group, Nekkanti Sea Foods Limited, Sagar Grandhi Exports Pvt. Ltd., SAI Marine
    Exports Pvt. Ltd., Sandhya Marines Limited, Sprint Exports Pvt. Ltd., Star Argo Marine Exports
    Private Limited, Suryamitra Exim Pvt. Ltd., and Wellcome Fisheries Limited.
    Court No. 14-00226                                                                 Page 7
    of its use of averages and consideration of all sales in the analysis, see 
    id.
     at 20–28, 43–
    45, (ii) failed to adequately explain why A-A could not account for such differences, see
    
    id.
     at 28–36, and (iii) improperly used, what Plaintiffs refer to as, “double-zeroing” in
    calculating Falcon Marine’s antidumping duty margin. See 
    id.
     at 37–43. Finally, Plaintiffs
    maintain that Commerce wrongfully rejected portions of Respondents’ administrative
    case brief as untimely filed new factual information. See 
    id.
     at 45–46. For these reasons,
    Plaintiffs argue that Commerce’s determinations in the final results are unsupported by
    substantial evidence and otherwise not in accordance with law.
    Defendant United States (“Defendant”) argues that Commerce has the authority to
    engage in the differential pricing analysis and thereafter apply A-T in the context of
    administrative reviews, see Def.’s Resp. Opp’n Pls.’ Rule 56.2 Mot. J. Agency R. 10–13,
    Aug. 13, 2015, ECF No. 43 (“Def.’s Resp.”), the withdrawn regulations have never applied
    to administrative reviews, see 
    id.
     at 14–17, the APA did not require Commerce to employ
    notice and comment rulemaking for its change in practice to the differential pricing
    analysis, see 
    id.
     at 17–21, and Commerce properly rejected portions of Respondents’
    administrative case brief as untimely filed new factual information. See 
    id.
     at 45–46.
    Defendant also maintains that Commerce’s use and application of its newly implemented
    analysis in the final results are supported by substantial evidence and in accordance with
    law. See 
    id.
     at 21–44.
    The court holds that Commerce’s final results are supported by substantial
    evidence and in accordance with law and are therefore sustained.
    Court No. 14-00226                                                                   Page 8
    JURISDICTION AND STANDARD OF REVIEW
    The court has jurisdiction pursuant to 19 U.S.C. § 1516a(a)(2)(B)(iii) and 
    28 U.S.C. § 1581
    (c) (2012), 4 which grant the court authority to review actions contesting the final
    determination in an administrative review of an antidumping duty order. The court will
    uphold Commerce’s determination unless it is “unsupported by substantial evidence on
    the record, or otherwise not in accordance with law.” 19 U.S.C. § 1516a(b)(1)(B)(i).
    DISCUSSION
    I.    Commerce Has Authority to Use the Differential Pricing Analysis and Apply
    A-T in Administrative Reviews
    Plaintiffs’ Rule 56.2 motion argued that Commerce lacks authority to apply the
    alternative A-T methodology in administrative reviews. See Pls.’ Mot. 10–15. Defendant
    and Defendant-Intervenor respond that, contrary to Plaintiffs’ position, neither the
    antidumping duty statute nor the legislative history prohibit use of the differential pricing
    analysis or application of A-T in administrative reviews and in support cite to the Court of
    Appeals for the Federal Circuit’s recent decision in JBF RAK LLC v. United States, 
    790 F.3d 1358
     (Fed. Cir. 2015). See Def.’s Resp. 10–13; Def.-Intervenor Ad Hoc Shrimp
    Trade Action Committee’s Resp. Pls.’ Rule 56.2 Mot. J. Agency R. 8, 13–15, Aug. 13,
    2015, ECF No. 42 (“Def.-Intervenor’s Resp.”). The court holds that Commerce has the
    authority to engage in its differential pricing analysis to decide which comparison
    methodology to use for calculating dumping margins and thereafter apply A-T in the
    context of an administrative review when appropriate.
    4
    Further citations to Title 28 of the U.S. Code are to the 2012 edition.
    Court No. 14-00226                                                                         Page 9
    To determine whether merchandise is being sold in the United States at less than
    fair value and, if so, to calculate the antidumping duty rate for the individually examined
    exporters and producers, Commerce must compare normal value to the export price of
    each entry of subject merchandise. 5          See 
    19 U.S.C. § 1675
    (a)(2)(A)(ii); 19 U.S.C.
    § 1677b(a); 
    19 U.S.C. § 1677
    (35)(A). The statute provides that Commerce shall ordinarily
    use A-A to calculate dumping margins in an investigation, but may use A-T as an
    alternative to the default A-A method if certain conditions are met. See 19 U.S.C.
    § 1677f-1(d)(1)(A)–(B). Congress, however, has not dictated which comparison
    methodology Commerce must use in administrative reviews nor has it provided for when
    Commerce may use A-T in reviews. The only further guidance the statute provides with
    respect to Commerce’s use of A-T in a review is that when applying A-T, Commerce “shall
    limit its averaging of prices to a period not exceeding the calendar month that corresponds
    most closely to the calendar month of the individual export sale.”                      19 U.S.C.
    § 1677f-1(d)(2).     Commerce’s regulations provide that Commerce will apply A-A to
    calculate dumping margins in investigations and reviews unless another method is
    5
    Normal value is the first sales price of the subject merchandise in the exporting country, See 19
    U.S.C. § 1677b(a)(1)(A)–(B), or, if not sold in the exporting country, the sales price of the subject
    merchandise in a similar exporting country “other than the exporting country or the United States.”
    19 U.S.C. § 1677b(a)(1)(B)(ii); 19 U.S.C. § 1677b(a)(1)(C). Export price is the first sales price to
    an unaffiliated purchaser of the subject merchandise in the importing country, i.e., United States,
    or an unaffiliated purchaser for exportation to the importing country. See 19 U.S.C. § 1677a(a).
    Commerce calculates a respondent’s dumping margin by determining “the amount by which the
    normal value exceeds the export price of the subject merchandise.” 
    19 U.S.C. § 1677
    (35)(A).
    Court No. 14-00226                                                                       Page 10
    appropriate in a particular case, but do not provide further guidance regarding what those
    circumstances may be. See 
    19 C.F.R. § 351.414
    (c)(1). 6
    As a result, to determine whether to employ an alternative method to calculate
    dumping margins in reviews, Commerce has by practice chosen to adopt the approach it
    uses in investigations, which follows the statutory directive under 19 U.S.C.
    § 1677f-1(d)(1)(B). In the preliminary results, Commerce explained that analogous to its
    approach in antidumping duty investigations, Commerce engages in an analysis
    consistent with § 1677f-1(d)(1)(B) in administrative reviews to “examine[] whether to use
    the [A-T] method as an alternative comparison method.”                Prelim. I&D Memo at 5.
    Therefore, as a matter of practice, Commerce applies A-T instead of the default A-A
    method in an administrative review if there is a pattern of export prices for comparable
    merchandise that differ significantly among purchasers, regions, or time periods, provided
    that Commerce explains why the A-A method cannot account for those price differences.
    See Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin
    and Assessment Rate in Certain Antidumping Duty Proceedings; Final Modification, 
    77 Fed. Reg. 8,101
    , 8,102 (Dep’t Commerce Feb. 14, 2012) (announcing that Commerce
    intends to apply a comparison methodology in reviews in a manner that parallels
    investigations) (“Final Modification”). Accordingly, to evaluate whether the conditions for
    6
    While a comparison of “the normal values of individual transactions to the export prices of
    individual transactions” (“T-T”) is listed as a preferred method under 19 U.S.C. § 1677f-1(d)(1)(A),
    Commerce’s regulations provide that the T-T methodology will rarely be employed by Commerce
    “such as when there are very few sales of subject merchandise and the merchandise sold in each
    market is identical or very similar or is custom-made.” 
    19 C.F.R. § 351.414
    (c)(2).
    Court No. 14-00226                                                               Page 11
    the A-T exception are met in a review, Commerce engages in the differential pricing
    analysis, which Commerce has used in recent investigations and reviews. See 
    id.
    In the preliminary results, Commerce stated that it employed the differential pricing
    analysis “pursuant to 19 CFR [§] 351.414(c)(1) and consistent with [19 U.S.C.
    § 1677f-1(d)(1)(B)]” and determined that the A-T comparison methodology was
    appropriate to apply to Devi Fisheries’ and Falcon Marine’s U.S. sales. See Prelim. I&D
    Memo at 5–7; see also Prelim. Results, 79 Fed. Reg. at 16,286. Commerce continued to
    apply the alternative A-T method to calculate Devi Fisheries’ and Falcon Marine’s
    dumping margins in the final results. See Final I&D Memo at 1–2; see also Final Results,
    79 Fed. Reg. at 51,309.
    Plaintiffs concede in their reply that JBF RAK LLC is determinative on the issue of
    whether Commerce has the authority to apply the alternative A-T method in reviews. See
    Pls.’ Reply 3.   The appellant in JBF RAK LLC, a manufacturer and exporter of
    polyethylene terephthalate film from the United Arab Emirates, appealed a U.S. Court of
    International Trade decision, see generally JBF RAK LLC v. United States, 38 CIT __,
    
    991 F. Supp. 2d 1343
     (2014), challenging Commerce’s targeted dumping analysis and
    disputing Commerce’s authority to apply A-T in the context of an administrative review.
    See JBF RAK LLC, 790 F.3d at 1360–62. The Court of Appeals for the Federal Circuit
    held that Commerce viewed its analysis in investigations as instructive for administrative
    reviews and reasonably exercised its gap-filling authority by using A-T to calculate
    dumping margins in administrative reviews in appropriate circumstances. See id. at 1364.
    In affirming Commerce’s decision to apply A-T in the context of an administrative review,
    Court No. 14-00226                                                                  Page 12
    the Court of Appeals for the Federal Circuit reasoned that “[t]he fact that the statute is
    silent with regard to administrative reviews does not preclude Commerce from filling gaps
    in the statute to properly calculate and assign antidumping duties.” See id. at 1365
    (internal quotations omitted). Because the Court of Appeals for the Federal Circuit has
    decided this very issue and the court is not presented with, nor does it observe, reasons
    that warrant dissimilar treatment, the court holds that Commerce had the authority to
    engage in an analysis to determine whether application of A-T was appropriate in this
    administrative review.
    II.   Commerce Complied with its Regulations
    Plaintiffs argue that while Commerce may apply A-T in reviews, it must comply
    with its regulations codified at 
    19 C.F.R. § 351.414
    (f) (2008) here based on Plaintiffs’
    position that those regulations were in full force and effect for this review. 7 See Pls.’ Mot.
    7
    In 2008, following two notices requesting comments on how Commerce should address targeted
    dumping in antidumping duty investigations, see Targeted Dumping in Antidumping
    Investigations, 
    72 Fed. Reg. 60,651
    , 60,651 (Dep’t Commerce Oct. 25, 2007); Proposed
    Methodology for Identifying and Analyzing Targeted Dumping in Antidumping Investigations, 
    73 Fed. Reg. 26,371
    , 26,371–72 (Dep’t Commerce May 9, 2008), Commerce issued a notice that
    purportedly withdrew the regulations pertaining to the previous targeted dumping analyses used
    in antidumping duty investigations. See generally Withdrawal of the Regulatory Provisions
    Governing Targeted Dumping in Antidumping Duty Investigations, 
    73 Fed. Reg. 74,930
     (Dep’t
    Commerce Dec. 10, 2008). Specifically, Commerce announced the withdrawal of 
    19 C.F.R. § 351.414
    (f) and (g) (2008), the former of which includes the limiting rule and the allegation
    requirement. See Withdrawal of the Regulatory Provisions Governing Targeted Dumping in
    Antidumping Duty Investigations, 
    73 Fed. Reg. 74,930
     (Dep’t Commerce Dec. 10, 2008).
    Following Commerce’s 2008 withdrawal notice, an exporter challenged the withdrawal in the U.S.
    Court of International Trade claiming that the withdrawal was ineffective because Commerce did
    not comply with the APA’s notice and comment requirements. See Gold East Paper (Jiangsu)
    Co. v. United States, 37 CIT __, __, 
    918 F. Supp. 2d 1317
    , 1325 (2013). The court in Gold East
    Paper agreed and explained that “[b]ecause Commerce failed to provide notice
    (footnote continued)
    Court No. 14-00226                                                                          Page 13
    15–18. Specifically, Plaintiffs argue that Commerce must comply with the “limiting rule” 8
    and the “allegation requirement.” 9 See id.; see also 
    19 C.F.R. § 351.414
    (f)(2)–(3) (2008).
    Plaintiffs contend that these regulatory provisions apply here because “[a]lthough
    Commerce’s [targeted dumping] regulations are, by their own terms, limited to
    investigations, Commerce consistently relies on its [targeted dumping] investigation
    policies in [antidumping duty] reviews.” Pls.’ Mot. 16.
    Defendant disagrees with Plaintiffs’ contention because, regardless of whether the
    regulations were properly withdrawn, “the regulations by their explicit terms applied to
    investigations and not administrative reviews.” Def.’s Resp. 14. Defendant also argues
    that Commerce promulgated those regulations to implement the statutory provision in 19
    U.S.C. § 1677f-1(d)(1) and there is no corresponding statutory directive with respect to
    reviews. See id. at 16. Defendant-Intervenor adds that the regulations have since been
    revoked and nonetheless applied to the preceding targeted dumping analysis rather than
    and comment before withdrawing the Limiting Rule, . . . the court finds that the repeal of the
    regulation was invalid and the Limiting Rule is still in force.” Gold East Paper, 918 F. Supp. 2d at
    1327.
    In response to the court’s decision in Gold East Paper, Commerce, notwithstanding its
    position that the 2008 withdrawal notice was proper, made a subsequent attempt to withdraw 
    19 C.F.R. § 351.414
    (f) (2008) and stated that Commerce will not apply the regulation, including the
    limiting rule and the allegation requirement, in antidumping duty investigations. See Non-
    Application of Previously Withdrawn Regulatory Provisions Governing Targeted Dumping in
    Antidumping Duty Investigations, 
    79 Fed. Reg. 22,371
    , 22,371–72 (Dep’t Commerce Apr. 22,
    2014).
    8
    The limiting rule provides that if in an investigation Commerce identifies a pattern of export prices
    that differ significantly among purchasers, regions, or periods of time, Commerce “normally will
    limit the application of [A-T] to those sales that constitute targeted dumping under (f)(1)(i) of this
    section.” 
    19 C.F.R. § 351.414
    (f)(2) (2008).
    9
    The allegation requirement provides that Commerce “normally will examine only targeted
    dumping described in an allegation.” 
    19 C.F.R. § 351.414
    (f)(3) (2008).
    Court No. 14-00226                                                                Page 14
    the differential pricing analysis that was undertaken here. See Def.-Intervenor’s Resp.
    15–16.
    Plaintiffs’ argument is predicated upon the view that the regulation was in full force
    and effect for this proceeding. To support that view, Plaintiffs argue that the attempted
    withdrawal in 2008 was invalid according to Gold East Paper (Jiangsu) Co. v. United
    States, 37 CIT __, 
    918 F. Supp. 2d 1317
     (2013). See Pls.’ Mot. 15–16. Plaintiffs further
    argue that the validity of the subsequent withdrawal in 2014 is irrelevant because it was
    applicable to cases initiated on or after May 22, 2014, whereas the instant review was
    initiated before that date. See Pls.’ Mot. 16 n.3. Defendant holds fast to its view that
    despite the decision in Gold East Paper, the regulations were properly withdrawn in 2008.
    However, whether the regulation was in full force and effect is of no consequence here.
    The regulatory provisions that Plaintiffs argue Commerce failed to comply with do
    not apply to administrative reviews. The issue of whether the regulations were properly
    withdrawn is not before the court as the regulations by their terms only apply to
    investigations, which Plaintiffs concede in their argument. See Pls.’ Mot. 16 (conceding
    that “Commerce’s [targeted dumping] regulations are, by their own terms, limited to
    investigations”); see also 
    19 C.F.R. § 351.414
    (f) (2008). Thus, there is no regulation that
    expressly requires Commerce to apply the limiting rule and the allegation requirement in
    a review.
    Further, the regulations have not otherwise been implemented as part of
    Commerce’s current practice in reviews. As previously explained, Congress has not
    provided for when and how Commerce is to calculate dumping margins using A-T in
    Court No. 14-00226                                                               Page 15
    reviews. Consequently, Commerce has developed a practice in administrative reviews
    of conducting an analysis that is guided by its approach in investigations to “examine[]
    whether to use the [A-T] method as an alternative comparison method.” Prelim. I&D
    Memo at 5.
    Where Commerce has developed a practice it must follow that practice or explain
    why in a given case it was reasonable to deviate from that practice. See NMB Singapore
    Ltd. v. United States, 
    557 F.3d 1316
    , 1328 (Fed. Cir. 2009). However, Commerce has
    decided from the outset not to incorporate the regulations as part of its practice of using
    the differential pricing analysis in reviews for the same reasons why it sought to withdraw
    the regulations altogether. Commerce explained that “the regulation was impeding the
    development of an effective remedy for masked dumping,” which Congress has charged
    Commerce to counteract by authorizing it to use A-T to calculate dumping margins under
    appropriate circumstances. See Final I&D Memo at 14. Commerce further provided that
    the regulations were “promulgated without the benefit of any experience on the issue of
    targeted dumping” and “prevented the use of this comparison methodology to unmask
    dumping.” Id. at 14. Thus, Commerce ultimately decided to withdraw the regulation
    because it “may have had the unintentional effect of preventing the Department from
    employing an appropriate remedy to unmask dumping” and “[s]uch an effect would have
    been contrary to congressional intent” as it would seemingly deny domestic producers
    the relief the antidumping duty scheme envisions for them. Id. at 16. Commerce’s
    reasons for withdrawing, or attempting to withdraw, the regulations suffice to demonstrate
    Court No. 14-00226                                                                      Page 16
    that it has not adopted the regulations as a matter of practice in its differential pricing
    analysis. 10
    Plaintiffs, however, maintain that “Commerce itself has made its [targeted
    dumping] regulations relevant in [antidumping duty] reviews, and it must comply with them
    or explain why it is reasonable not to do so in this case.” Pls.’ Mot. 16. At oral argument,
    Plaintiffs argued that Commerce’s practice in reviews has incorporated the regulations
    applicable to investigations because its practice consistently relies upon the analysis used
    in investigations. See Oral Arg., 03:28–04:41, Dec. 11, 2015, ECF No. 62. However, as
    explained above, Commerce has not adopted the regulations as part of its practice of
    using the differential pricing analysis in reviews. The fact that Commerce looks to its
    approach in investigations as guidance for its practice in reviews does not mean that
    Commerce has made a wholesale adoption of every aspect, including statutory and
    regulatory constraints, of its approach in investigations. Although Commerce is permitted
    to extend particular statutory or regulatory provisions in other contexts, see JBF RAK
    LLC, 790 F.3d at 1364 (holding that Commerce’s application of A-T in reviews in a manner
    that mirrors investigations is a reasonable exercise of its gap-filling discretion), it is by no
    10
    The court recognizes that Commerce has put the allegation requirement into practice in past
    reviews. See, e.g., JBF RAK LLC, 790 F.3d at 1361–62. However, the fact that Commerce
    assessed whether the use of A-T was appropriate in response to an allegation of targeted
    dumping in past reviews could only bind the agency with respect to its previous practice of using
    a targeted dumping analysis in reviews. As explained in the court’s discussion, Commerce has
    since changed its practice of using a targeted dumping analysis to a differential pricing analysis
    for determining whether to apply A-T in a given case and has decided not to apply the limiting rule
    and the allegation requirement in its current practice.
    Court No. 14-00226                                                                      Page 17
    means obligated to do so. Therefore, Commerce was not required to comply with the
    limiting rule and the allegation requirement in the final results.
    III.   Commerce’s Change in Practice Did Not Trigger APA Rule Making
    Requirements
    Plaintiffs contend that Commerce implemented its differential pricing analysis
    without following APA rule making requirements. See Pls.’ Mot. 18–20. Defendant and
    Defendant-Intervenor explain that Commerce’s shift from the Nails test 11 to the differential
    pricing analysis was a change in Commerce’s practice rather than a rule and thus exempt
    from the APA’s notice and comment rule making requirement. See Def.’s Resp. 17–21;
    Def.-Intervenor’s Resp. 17–18.          The court rejects Plaintiffs’ argument based on
    fundamental administrative law principles.
    Absent statutory restraints, agencies are generally free to develop policy through
    either rulemaking or adjudication. SEC v. Chenery, 
    332 U.S. 194
    , 202 (1947). Courts
    will not impose more procedures than those imposed by Congress or the agency. Vt.
    Yankee Nuclear Power Corp. v. Nat. Res. Def. Council, Inc., 
    435 U.S. 519
    , 524–525
    (1978). Commerce is free to develop its approach for determining which comparison
    method to use in a given case through adjudication.
    11
    The Nails test, which derives its name from the cases in which it was first used, was established
    in 2008 in concurrent antidumping duty investigations as a methodology to address the criteria
    under 19 U.S.C. § 1677f-1(d)(1)(B) and was the predecessor to Commerce’s recently
    implemented differential pricing analysis. See Certain Steel Nails from the People’s Republic of
    China, 
    73 Fed. Reg. 33,977
     (Dep’t Commerce June 16, 2008) (final determination of sales at less
    than fair value); Certain Steel Nails From the United Arab Emirates, 
    73 Fed. Reg. 33,985
     (Dep’t
    Commerce June 16, 2008) (notice of final determination of sales at not less than fair value).
    Court No. 14-00226                                                                     Page 18
    Nonetheless, Plaintiffs reason that the APA mandates notice and comment
    rulemaking pursuant to 
    5 U.S.C. § 553
     because the differential pricing methodology is a
    “rule,” which is defined as “an agency statement of general or particular applicability and
    future effect designed to implement, interpret, or prescribe law or policy or describing the
    organization, procedure, or practice requirements of an agency.” See Pls.’ Mot. 19–20;
    
    5 U.S.C. § 551
    (4). However, the APA’s notice and comment requirement applies to
    legislative rules and does not apply to “interpretive rules, general statements of policy, or
    rules of agency organization, procedure, or practice.” 12 See 
    5 U.S.C. § 553
    (b)(A). While
    not binding on this Court, the court notes that the Court of Appeals for the D.C. Circuit
    has aptly addressed how to determine whether an agency rule is a legislative rule that
    must undergo notice and comment rulemaking by asking the following:
    (1) whether in the absence of the rule there would not be an adequate
    legislative basis for enforcement action or other agency action to confer
    12
    Although the distinction between legislative rules, interpretive rules, and statements of policy
    may not always be obvious, the court notes that the Attorney General's Manual on the
    Administrative Procedure Act (1947), provides
    the following working definitions . . . : Substantive rules--rules, other than
    organizational or procedural under section 3(a)(1) and (2), issued by an agency
    pursuant to statutory authority and which implement the statute, as, for example,
    the proxy rules issued by the Securities and Exchange Commission pursuant to
    section 14 of the Securities Exchange Act of 1934 (15 U.S.C. 78n). Such rules
    have the force and effect of law.
    Interpretative rules--rules or statements issued by an agency to advise the public
    of the agency's construction of the statutes and rules which it administers.
    General statements of policy--statements issued by an agency to advise the public
    prospectively of the manner in which the agency proposes to exercise a
    discretionary power.
    Attorney General's Manual on the Administrative Procedure Act (1947), at 30 n.3 (internal
    citations omitted).
    Court No. 14-00226                                                                      Page 19
    benefits or ensure the performance of duties, (2) whether the agency has
    published the rule in the Code of Federal Regulations, (3) whether the
    agency has explicitly invoked its general legislative authority, or (4) whether
    the rule effectively amends a prior legislative rule.
    Am. Mining Cong. v. Mine Safety Admin., 
    995 F.2d. 1106
    , 1112 (D.C. Cir 1993). Adopting
    this framework, none of the questions raised are answered affirmatively in this context.
    Congress has afforded Commerce the basis for agency action absent any rulemaking.
    Commerce’s approach to uncovering dumping has developed, and continues to develop,
    over time as foreshadowed by the Supreme Court in Chenery. 13
    13
    The earliest variation of Commerce’s approach to address the criteria under 19 U.S.C.
    § 1677f-1(d)(1)(B) was the Pasta test from Commerce’s first encounter with targeted dumping.
    See generally Certain Pasta From Italy, 
    61 Fed. Reg. 30,326
     (Dep’t Commerce June 14, 1996)
    (notice of final determination of sales at less than fair value), as amended, 
    61 Fed. Reg. 38
    , 547
    (Dep’t Commerce June 14, 1996), as amended 
    61 Fed. Reg. 42,231
     (Dep’t Commerce Aug. 14,
    1996); see also Borden, Inc. v. United States, 
    23 CIT 372
    , 373 (1999). After Certain Pasta From
    Italy, Commerce was presented with allegations of targeted dumping in two other proceedings,
    but Commerce ultimately found that the allegations were inadequate and did not proceed with a
    targeted dumping analysis. See generally Fresh Tomatoes From Mexico, 
    61 Fed. Reg. 56,608
    (Nov. 1, 1996) (notice of preliminary determination of sales at less than fair value and
    postponement of final determination); Stainless Steel Wire Rod from Taiwan, 
    63 Fed. Reg. 10,836
    (March 5, 1998) (notice of preliminary determination of sales at less than fair value and
    postponement of final determination).
    Commerce’s use of the Pasta test was short-lived and limited to the antidumping duty
    investigation of certain pasta from Italy because Commerce adopted the “P/2 test” when it next
    engaged in a targeted dumping analysis in Coated Free Sheet Paper from the Republic of Korea,
    
    72 Fed. Reg. 60,630
     (Dep’t Commerce Oct. 25, 2007) (notice of final determination of sales at
    less than fair value). Commerce recognized the need for a standardized approach with regard to
    targeted dumping and filed a notice immediately following its determination in Coated Free Sheet
    Paper from the Republic of Korea requesting comments on developing a methodology for its
    targeted dumping determination in investigations. See Targeted Dumping in Antidumping
    Investigations; Request for Comment, 
    72 Fed. Reg. 60,651
    , 60,651 (Dep’t Commerce Oct. 25,
    2007).
    In 2008, Commerce began using what is now known as the Nails test in investigations to
    determine if a foreign exporter or producer is engaging in targeted dumping. See generally
    Certain Steel Nails From the People’s Republic of China, 
    73 Fed. Reg. 33,977
     (Dep’t Commerce
    June 16, 2008) (final determination of sales at less than fair value); Certain Steel Nails From the
    (footnote continued)
    Court No. 14-00226                                                                    Page 20
    Because Commerce’s approach has and continues to evolve, it is not appropriate
    to “rigidify[] [Commerce’s] tentative judgment into a hard and fast rule.” Chenery, 
    332 U.S. at 202
    . Commerce’s approach for determining whether to utilize the A-T exception
    is precisely the type of situation where the agency “retain[s] power to deal with the
    problems on a case-to-case basis . . . [allowing for] the case-by-case evolution of statutory
    standards.” 
    Id. at 203
    . Thus, Commerce’s shift from the Nails test to the differential
    pricing analysis is not subject to notice and comment requirements.
    Plaintiffs additionally argue that by requesting comments on the differential pricing
    analysis Commerce acknowledged that the change is subject to APA notice and comment
    requirements. See Pls.’ Mot. 19 n.5; see also Differential Pricing Analysis; Request for
    Comments, 
    79 Fed. Reg. 26,720
    , 26,720 (Dep’t Commerce May 9, 2014) (“Request for
    Comments”).      Plaintiffs’ assertion is erroneous.       By simply requesting comment,
    Commerce did not in effect obligate itself to engage in notice and comment rule making.
    Commerce has not invoked its legislative authority simply by seeking input from interested
    parties.
    United Arab Emirates, 
    73 Fed. Reg. 33,985
     (Dep’t Commerce June 16, 2008) (notice of final
    determination of sales at not less than fair value); see also Mid Continent Nail Corp. v. United
    States, 
    34 CIT 512
    , 513–15, 
    712 F. Supp. 2d 1370
    , 1372–74 (2010). For several years
    Commerce continued to utilize the Nails test to help decide whether the statutory preconditions
    are satisfied to employ A-T.
    On March 4, 2013, Commerce made its most recent development to its approach,
    departing from its previous targeted dumping analysis, and first used what Commerce has coined
    the “differential pricing analysis” in the antidumping duty investigation of xanthan gum from the
    People’s Republic of China. See Xanthan Gum From the People’s Republic of China, 
    78 Fed. Reg. 33,351
    , 33,351–52 (Dep’t Commerce June 4, 2013) (final determination of sales at less than
    fair value).
    Court No. 14-00226                                                                 Page 21
    Plaintiffs further argue that “Commerce arbitrarily changed from its so-called Nails
    Test to its new [differential pricing] analysis without adequate explanation or input.” Pls.’
    Mot. 19. Plaintiffs are correct in that Commerce must adequately explain any changes to
    its practice to be entitled to deference. See SKF USA Inc. v. United States, 
    630 F.3d 1365
    , 1373 (Fed. Cir. 2011); see also Motor Vehicle Mfrs. Ass’n of U.S. v. State Farm
    Mut. Auto. Ins. Co., 
    463 U.S. 29
    , 48–49 (1983) (explaining that “an agency must cogently
    explain why it has exercised its discretion in a given manner”); Nippon Steel Corp. v. U.S.
    Int’l Trade Comm’n, 
    494 F.3d 1371
    , 1378 n.5 (Fed. Cir. 2007) (providing that “[w]hen an
    agency decides to change course, however, it must adequately explain the reason for a
    reversal of policy” to be afforded deference). However, the court finds that Commerce
    has provided an adequate explanation for its change in practice and sought input from
    interested parties.
    Commerce’s explanation for the shift from the Nails test to the differential pricing
    analysis need not confirm that the change is a better policy or methodology than its
    predecessor. See FCC v. Fox Television Stations, Inc., 
    556 U.S. 502
    , 515 (2009). “[I]t
    suffices that the new policy is permissible under the statute, that there are good reasons
    for it, and that the agency believes it to be better, which the conscious change of course
    adequately indicates.” 
    Id.
     “Thus, Commerce need only show that its methodology is
    permissible under the statute and that it had good reasons for the new methodology.”
    Huvis Corp. v. United States, 
    570 F.3d 1347
    , 1353 (Fed. Cir. 2009).
    Commerce explained that it continues to develop its approach with respect to the
    use of A-T “as it gains greater experience with addressing potentially hidden or masked
    Court No. 14-00226                                                                 Page 22
    dumping that can occur when the Department determines weighted-average dumping
    margins using the [A-A] comparison method.” Final I&D Memo at 18 (internal quotations
    omitted). Commerce additionally explained that the new approach is “a more precise
    characterization of the purpose and application of [19 U.S.C. § 1677f-1(d)(1)(B)]” and is
    the product of Commerce’s “experience over the last several years, . . . further research,
    analysis and consideration of the numerous comments and suggestions on what
    guidelines, thresholds, and tests should be used in determining whether to apply an
    alternative comparison method based on the [A-T] method.” Request for Comments, 79
    Fed. Reg. at 26,722.      Commerce developed its approach over time, while gaining
    experience and obtaining input. Under the standard described above, Commerce’s
    explanation is sufficient. Therefore, Commerce’s adoption of the differential pricing
    analysis was not arbitrary.
    IV.    Differential Pricing Analysis
    The statute provides that Commerce must compare normal value to the export
    price of each entry of subject merchandise in order to calculate dumping margins. See
    
    19 U.S.C. § 1675
    (a)(2)(A)(ii); 19 U.S.C. § 1677b(a); 
    19 U.S.C. § 1677
    (35)(A). However,
    the statute does not dictate which comparison methodology Commerce must use in a
    review, nor when it may use A-T in a review. Commerce has stated in its regulations that
    it will apply A-A in reviews “unless another method is appropriate in a particular case.” 
    19 C.F.R. § 351.414
    (c)(1). Commerce has adopted a practice in reviews of using the
    differential pricing analysis based upon the statutory provision applicable to investigations
    Court No. 14-00226                                                                        Page 23
    to determine whether application of A-T is warranted. 14              According to Commerce’s
    practice, it may use A-T rather than A-A in a review when (1) there is a pattern of export
    prices that differ significantly among purchasers, regions, or periods of time and (2)
    Commerce provides an explanation for why the pattern of significant price differences
    cannot be taken into account using A-A. Plaintiffs challenge (i) Commerce’s use of
    weighted-average export prices to find prices that differ significantly, (ii) the inclusion of
    both higher and lower-priced sales in the analysis, (iii) Commerce’s finding of a pattern of
    export prices that differ significantly, (iv) Commerce’s explanation as to why A-A cannot
    account for such differences, and (v) Commerce’s application of its mixed methodology.
    14
    The statutory directive for investigations provides:
    (B) Exception
    [Commerce] may determine whether the subject merchandise is being sold in the
    United States at less than fair value by comparing the weighted average of the
    normal values to the export prices (or constructed export prices) of individual
    transactions for comparable merchandise [(A-T)], if--
    (i)     there is a pattern of export prices (or constructed export
    prices) for comparable merchandise that differ significantly
    among purchasers, regions, or periods of time, and
    (ii)    [Commerce] explains why such differences cannot be taken
    into account using a method described in paragraph (1)(A)(i)
    [(A-A)] or (ii) [(T-T)].
    19 U.S.C. § 1677f-1(d)(1)(B). Commerce explained that “[a]lthough [19 U.S.C. § 1677f-1(d)(1)(B)]
    does not strictly govern the Department’s examination of this question in the context of an
    administrative review, the Department nevertheless finds that the issue arising under 19 CFR
    [§] 351.414(c)(1) in an administrative review is analogous to the issue in . . . investigations.
    Accordingly, the Department finds the analysis that has been used in . . . investigations instructive
    for purposes of examining whether to apply an alternative comparison method in this
    administrative review.” Final I&D Memo at 9. Commerce has thus adopted a practice to use an
    approach akin to the approach used in investigations, namely the differential pricing analysis, to
    determine whether to apply A-T in an administrative review. See Final Modification, 77 Fed. Reg.
    at 8,102; see also Request for Comments, 79 Fed. Reg. at 26,722.
    Court No. 14-00226                                                                    Page 24
    See Pls.’ Mot. 20–45. 15 Each of Plaintiffs’ specific challenges to Commerce’s differential
    pricing analysis are unavailing as explained below.
    A. Commerce’s Analysis for Finding a Pattern of Export Prices that Differ
    Significantly is Reasonable.
    In the first stage of the differential pricing analysis, Commerce employs two tests
    –– (1) the Cohen’s d test and (2) the ratio test –– to identify a pattern of export prices that
    differ significantly. See Prelim. I&D Memo at 6–7. The Cohen’s d test assesses whether
    export prices differ significantly among purchasers, regions, or periods of time, whereas
    the ratio test evaluates whether the price differences measured by the Cohen’s d test are
    sufficient to exhibit a pattern. See id.; Request for Comments, 79 Fed. Reg. at 26,722.
    Plaintiffs argue Commerce’s finding that the mandatory respondents’ U.S. sales revealed
    a pattern of export prices that differ significantly among purchasers, regions, or time
    periods is unsupported by substantial evidence and not in accordance with law. See Pls.’
    Mot. 20–28. Plaintiffs argue Commerce improperly used averages to find significant price
    differences, see id. at 20–26, wrongly included higher-priced sales that passed the
    Cohen’s d test in the ratio test, see id. at 43–45, and erroneously found a pattern of
    significant price differences. See id. at 26–28.
    15
    In articulating their specific challenges to Commerce’s differential pricing analysis and
    responses thereto, Plaintiffs and Defendant sometimes allude to 19 U.S.C. § 1677f-1(d)(1)(B) as
    if the statute directly controls Commerce’s determination in the instant review. See, e.g., Pls.’
    Mot. 20, 21, 25, 28–29, 32, 35, 42; Def.’s Resp. 21, 25–26, 29, 31, 35. The court notes that
    Commerce is directly constrained by the statute only in investigations. Although Commerce’s
    approach in reviews follows the language of the statute, Commerce is bound by its practice in
    reviews rather than the statute pertaining to investigations.
    Court No. 14-00226                                                                     Page 25
    i.   Commerce’s Use of Averages in the Cohen’s d Test
    Plaintiffs argue that Commerce’s use of weighted-average export prices as
    opposed to individual export prices in its Cohen’s d analysis conflicts with the statute, is
    distortive, and lacks an adequate explanation. See Pls.’ Mot. 21–26. Defendant explains
    that the statute does not restrict Commerce’s discretion to use weighted-average export
    prices. See Def.’s Resp. 25–28.
    The language of the statute, as implicated by Commerce’s practice, requires
    Commerce to identify whether there is “a pattern of export prices . . . for comparable
    merchandise that differ significantly among purchasers, regions, or periods of time” before
    application of A-T is permitted. See 19 U.S.C. § 1677f-1(d)(1)(B)(i). The first stage of the
    differential pricing analysis answers this question by bifurcating the inquiry, i.e.,
    separately addressing whether there are significant price differences and whether those
    price differences are such that they constitute a pattern. Commerce uses the Cohen’s d
    test to evaluate whether “the net prices [of comparable merchandise] to a particular
    purchaser, region, or period of time differ significantly from the net prices of all other sales
    of comparable merchandise.” Prelim. I&D Memo at 6. To do so, Commerce preliminarily
    disaggregates the data collected from the individually examined respondents and sorts
    the sales of each CONNUM 16 into sales to particular purchasers, regions, and periods of
    time. See id. Each grouping of CONNUM sales specific to a purchaser, region, or time
    16
    CONNUM is short for “control number” and is a product code consisting of a series of numbers
    reflecting characteristics of a product in the order of their importance used by Commerce to refer
    to particular merchandise. See Prelim. I&D Memo at 6; Def.’s Resp. 22–23.
    Court No. 14-00226                                                                   Page 26
    period forms a test group and the remaining sales of that CONNUM to all other
    purchasers, regions, or time periods form a corresponding comparison group. See Final
    I&D Memo at 22.
    Commerce performs the Cohen’s d test by calculating the difference between the
    weighted-average sales prices of a test group and its corresponding comparison group,
    and subsequently comparing that difference in relation to the pooled standard deviation 17
    of the two groups. 18 See id. at 24. The resulting value is known as the Cohen’s d
    coefficient. See id. Commerce considers test group sales to pass the Cohen’s d test if
    the resulting Cohen’s d coefficient is equal to or greater than 0.8, which Commerce deems
    to be a strong indication of significant price differences. See Prelim. I&D Memo at 6.
    Conversely, Commerce views a Cohen’s d coefficient value less than 0.8 as an indication
    that the price differences are not significant. See id. Each CONNUM’s sales undergo
    several rounds of analysis to assess whether the export prices differ significantly by way
    of sales to particular purchasers, regions, or time periods. See generally Devi Fisheries’
    Prelim. Calcs.; Falcon Marine Prelim. Calcs.; see also Prelim. I&D Memo at 6. If the
    weighted-average sales price of a test group pass any of the rounds of the Cohen’s d
    test, then all the sales within that test group are considered to have passed the Cohen’s
    d test as a whole. See Devi Fisheries’ Prelim. Calcs. at 84–85; Falcon Marine Prelim.
    17
    A pooled standard deviation is a composite value representing the variance between multiple
    data sets, which in this case are the sales prices of the test group and the comparison group.
    See Final I&D Memo at 24.
    18
    Commerce only conducts the Cohen’s d test if: (1) the test group and its corresponding
    comparison group each have at least two transactions, and (2) the quantity of sales that make up
    the comparison group must account for at least five percent of the total quantity of sales of
    comparable merchandise. See Prelim. I&D Memo at 6.
    Court No. 14-00226                                                                       Page 27
    Calcs. at 52. Thus, Commerce uses the Cohen’s d test to assess whether a respondent’s
    export prices differ significantly with respect to particular purchasers, regions, or periods
    of time.
    Congress has granted Commerce considerable discretion to construct a
    methodology to apply in a review.          Further, the court affords Commerce significant
    deference in determinations “involv[ing] complex economic and accounting decisions of
    a technical nature.” Fujitsu General Ltd. v. United States, 
    88 F.3d 1034
    , 1039 (Fed. Cir.
    1996).     Despite its wide discretion, Commerce “must cogently explain why it has
    exercised its discretion in a given manner,” State Farm, 
    463 U.S. at
    48–49, and the
    methodological approach must nevertheless be a “reasonable means of effectuating the
    statutory purpose” and its conclusions must be supported by substantial evidence in order
    to be afforded deference. 19 Ceramica Regiomontana, S.A. v. United States, 
    10 CIT 399
    ,
    404–05, 
    636 F. Supp. 961
    , 966 (1986), aff’d, 
    810 F.2d 1137
    , 1139 (Fed. Cir. 1987).
    Here, Commerce has reasonably exercised its discretion and considered
    weighted-average export prices in the Cohen’s d test.                  Neither the statute nor
    19
    Here, Commerce has adopted a practice based upon the statutory directive for investigations,
    which requires the court to review Commerce’s methodological approach for its reasonableness.
    However, Commerce is afforded significant deference even in the case of an investigation to
    implement the statutory directive because Congress has likewise not provided for how Commerce
    should determine whether application of A-T is appropriate. Specifically, Congress has not
    specified how Commerce is to discern “a pattern of export prices that differ significantly” or what
    form of “export prices” Commerce must consider in its pattern analysis. See 19 U.S.C.
    § 1677f-1(d)(1)(B)(i). Thus, in an investigation, the statute leaves it to Commerce’s discretion to
    fill the gap and choose to either use weighted-average export prices or export prices of individual
    transactions so long as it is reasonable. See Chevron, U.S.A., Inc. v. Nat. Res. Def. Council, Inc.,
    
    467 U.S. 837
    , 843–44 (1984); Torrington Co. v. United States, 
    82 F.3d 1039
    , 1044 (Fed. Cir.
    1996) (“Any reasonable construction of the statute is a permissible construction.”); see also 19
    U.S.C. § 1677f-1(d)(1)(B)(i).
    Court No. 14-00226                                                               Page 28
    Commerce’s practice require it to identify significant price differences through the use of
    individual export prices rather than weighted-average export prices.           Commerce
    reasonably determines whether export prices differ significantly among purchasers,
    regions, or time periods by evaluating the relative difference between the weighted-
    averages of two subgroups of sales. As described above, the test group is comprised of
    sales to a particular purchaser, region, or time period, and the comparison group is
    comprised of sales to the other purchasers, regions, or time periods outside of the test
    group.   Commerce then calculates the weighted-average of the export prices that
    comprise each of these groups and if the difference between the weighted-averages
    reaches a certain level, Commerce finds that the price differences are significant. The
    court can discern from Commerce’s explanation that export prices differ significantly
    among purchasers (or regions or time periods) where Commerce observes significant
    price differences between the weighted-average of sales to a particular purchaser (or
    region, or time period) and the weighted-average of sales to all other purchasers (or
    regions, or time periods). The court finds the use of weighted-average export prices
    reasonable in this case. Significant price differences between the weighted-averages of
    export prices reasonably indicate that export prices differ significantly because the
    analysis “uses all of a respondent’s reported U.S. sales of subject merchandise” and the
    weighted-averages are therefore representative of and account for all the export prices.
    Final I&D Memo at 34. Commerce’s approach is thus able to effectuate the purpose of
    the analysis. While it may be possible in some situations that significant differences in
    the weighted-averages of export prices would not be indicative that the export prices of
    Court No. 14-00226                                                                  Page 29
    individual transactions differ significantly, there is no record evidence to suggest that is
    the case here. To show that Commerce’s use of weighted-averages was improper here,
    Plaintiffs must demonstrate that Commerce’s use of weighted-averages identified
    significant price differences where such price differences would not be found to be
    significant through use of individual export prices. Plaintiffs have not demonstrated that
    the case here is as such.
    Plaintiffs’ text-based arguments do not stand up to scrutiny. To support its position,
    Plaintiffs claim that the language under 19 U.S.C. § 1677f-1(d)(1)(B)(i) as implicated in
    Commerce’s practice, “a pattern of export prices . . . for comparable merchandise that
    differ significantly among purchasers, regions, or periods of time,” suggests that Congress
    intended that the requisite pattern finding must be based on individual export prices. See
    Pls.’ Mot. 21–22. Plaintiffs emphasize that the word “differ” in the statute is plural, so they
    argue that the word is meant to relate to “export prices” rather than to “pattern.” See id.
    At oral argument, Plaintiffs maintained that Commerce should instead conduct the
    Cohen’s d test using export prices of individual transactions in the test group and
    weighted-average export prices in the comparison group. See Oral Arg., 32:00–32:33.
    Even accepting Plaintiffs’ assertion that the word “differ” modifies “export prices”
    does not lead to the conclusion that Commerce must use export prices of individual
    transactions rather than weighted-average export prices. Although Congress did not
    modify “export prices” with “weighted-average” in the statute, Congress similarly decided
    not to modify “export prices” with “individual transactions” as it had done in other
    provisions of the antidumping duty statute. Compare 19 U.S.C. § 1677f-1(d)(1)(A)(i) and
    Court No. 14-00226                                                                      Page 30
    19 U.S.C. § 1677f-1(d)(1)(B) with 19 U.S.C. § 1677f-1(d)(1)(B)(i). Moreover, even if
    Congress intended for Commerce to establish that individual export prices differ
    significantly, it is not unreasonable for Commerce to fulfill that goal by looking to averages.
    Plaintiffs fail to demonstrate why Commerce’s choice is unreasonable. 20
    Plaintiffs also assert that Commerce’s use of averages in its Cohen’s d calculations
    distorts the differential pricing analysis. See Pls.’ Mot. 23–25. Plaintiffs argue that by
    using weighted-average export prices, Commerce masks individual sales prices and
    “smooth[s] out differences in individual export prices.” Id. Averaging prices by definition
    smooths out differences in individual prices. However, smoothing out differences is not
    necessarily distortive where Commerce is called upon to determine whether there is a
    pattern of prices that differ significantly. To show distortion in this context, the relevant
    question is whether the use of averages reveals significant price differences (or fails to
    reveal significant price differences) that would not be identified (or would be) without the
    use of averaging. Plaintiffs fail to make such a showing.
    20
    At oral argument, Plaintiffs further reasoned that because Congress has not directed
    Commerce which type of export prices to consider, Congress clearly intended for the default
    definition for export price to apply, which is found under 19 U.S.C. § 1677a(a). See Oral Arg.,
    24:49–25:37. Section 1677a(a) defines export price as “the price at which the subject
    merchandise is first sold (or agreed to be sold) before the date of importation by the producer or
    exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in
    the United States or to an unaffiliated purchaser for exportation to the United States.” 19 U.S.C.
    § 1677a(a). Plaintiffs argue that this definition requires Commerce to look at the actual export
    prices. However, nothing in Congress’s definition for export price advances Plaintiffs’ argument.
    This statutory provision does not stand for the proposition that Commerce is required to use export
    prices of individual transactions rather than weighted-average export prices in its practice for
    reviews.
    Court No. 14-00226                                                               Page 31
    Plaintiffs alternatively argue that Commerce must use monthly weighted-average
    export prices instead of annual or quarterly weighted-average export prices. See id. at
    26. For evaluating sales to purchasers and regions for differential pricing, Commerce
    uses annual weighted-average sales prices in the test groups and comparison groups.
    See Def.’s Resp. 22; Prelim. I&D Memo at 6. For evaluating sales in certain periods of
    time for differential pricing, Commerce uses quarterly weighted-average sales prices in
    the test groups and comparison groups. See Def.’s Resp. 23; Prelim. I&D Memo at 6.
    Plaintiffs argue that Commerce should instead use monthly weighted-average export
    prices because “[l]arger averaging period[s] tend[] to amplify distortions.” See Pls.’ Mot.
    26. Plaintiffs ground their argument in Commerce’s regulations which require it to use
    monthly weighted-averages when applying A-A in reviews.                  See 
    19 C.F.R. § 351.414
    (d)(3).
    The court is unconvinced. Plaintiffs fail to show why the use of monthly averages
    is either required by the statute or regulation, or why the use of annual or quarterly
    averages is unreasonable. Commerce’s regulation instructs Commerce to apply A-A in
    reviews as follows:
    (d) Application of the average-to-average method––
    ...
    (3) Time period over which weighted average is calculated. . . .
    When applying the average-to-average method in a review,
    [Commerce] normally will calculate weighted averages on a
    monthly basis and compare the weighted-average monthly
    export price or constructed export price to the weighted-
    average normal value for the contemporaneous month.
    Court No. 14-00226                                                                    Page 32
    
    19 C.F.R. § 351.414
    (d)(3).       Plaintiffs’ argument misunderstands the function of the
    differential pricing analysis. The regulation cited by Plaintiffs is inapplicable in this context
    because it refers to Commerce’s use of averages in using the A-A comparison
    methodology to calculate dumping margins. The differential pricing analysis provides
    Commerce with a method to identify if a respondent’s sales exhibit a pattern of significant
    price differences, not calculate dumping margins. The regulation in no way restricts the
    time period over which Commerce calculates the weighted-averages it uses for purposes
    of finding significant price differences.
    Finally, Plaintiffs argue that Commerce has not adequately explained that its use
    of weighted-averages in the Cohen’s d test is consistent with 19 U.S.C.
    § 1677f-1(d)(1)(B)(i). See Pls.’ Mot. 25–26. Commerce explained “neither the statute nor
    the regulations specify how the Department should examine whether there exists a
    pattern of prices that differ significantly” and therefore its use of weighted-averages is
    reasonable in light of that silence. See Final I&D Memo at 23. While Commerce’s
    explanation could more completely articulate its rationale, Commerce’s path is reasonably
    discernable. It is within Commerce’s discretion to determine how to identify significant
    price differences. Commerce has found that the use of weighted-averages is able to
    reasonably accomplish its intended purpose of identifying significant price differences.
    See id. at 22–23. As stated above, Commerce reasonably concludes that export prices
    differ significantly among purchasers, regions, or time periods where it observes
    significant price differences between the weighted-average of test group sales and the
    weighted-average of comparison group sales. Implicit in Commerce’s explanation is that
    Court No. 14-00226                                                                          Page 33
    significant price differences between the weighted-averages of export prices indicates
    whether the export prices differ significantly. Further, Commerce relies upon its prior use
    of weighted-averages in its application of the Nails test and found that to be reasonable
    and appropriate. See id. Plaintiffs are unable to demonstrate why the use of weighted-
    averages is unreasonable and unable to identify significant price differences. Although
    Commerce’s explanation is not ideal, it is adequate.
    Therefore, Commerce’s use of annual and quarterly weighted-averages in the
    Cohen’s d test to discern significant price differences is reasonable.
    ii.   Commerce’s Consideration of All Sales in the Ratio Test
    Plaintiffs claim that Commerce must limit the ratio test to “lower priced” sales that
    pass the Cohen’s d test in order to comply with the statute. See Pls.’ Mot. 43–45.
    Plaintiffs argue “Commerce wrongly included ‘higher’ priced sales (i.e., sales with prices
    above the ‘mean’) in determining which sales ‘pass’ Cohen’s d under the first step ‘pattern’
    stage of its [differential pricing] analysis.”       Pls.’ Reply 27.      In response, Defendant
    reiterates Commerce’s rationale for considering all sales explaining that Commerce was
    not required to limit its analysis because “’higher-priced sales are equally capable as
    lower-priced sales of creating a pattern of prices that differ significantly.’” 21 Def.’s Resp.
    30 (quoting Final I&D Memo at 26).
    21
    In Plaintiffs’ Rule 56.2 motion it is not clear whether Plaintiffs are challenging Commerce’s
    consideration of higher priced sales as part of the Cohen’s d test, or the inclusion of higher priced
    sales that pass the Cohen’s d test as part of the ratio test, i.e., the first or the second test in the
    first stage of the differential pricing analysis. See Pls.’ Mot. 43. Because Defendant understood
    (footnote continued)
    Court No. 14-00226                                                                       Page 34
    Before Commerce may apply A-T to calculate a respondent’s dumping margin,
    Commerce’s practice in reviews requires that it first determine whether that respondent’s
    sales exhibit a pattern of export prices that differ significantly among purchasers, regions,
    and periods of time. As stated previously, Commerce answers this question by separately
    addressing whether there are significant price differences and whether those price
    differences are such that they constitute a pattern. For the second prong of the inquiry,
    made relevant by Plaintiffs’ claim here, Commerce applies the ratio test, which “assesses
    the extent of the significance of the price differences for all sales as measured by the
    Cohen’s d test” by comparing the combined value of the respondent’s U.S. sales that
    passed the Cohen’s d test in relation to the value of all U.S. sales. See Prelim. I&D Memo
    at 6.
    To discern whether the sales passing the Cohen’s d test constitute a pattern,
    Commerce has devised the ratio test to categorize a respondent’s pricing behavior.
    Commerce has chosen to consider all sales, regardless of whether they are higher or
    lower-priced sales, to evaluate the extent of the differentially priced sales. Commerce
    explained that all sales are relevant to its analysis because “[h]igher-priced sales and
    lower-priced sales do not operate independently . . . . Higher- or lower-priced sales could
    Plaintiffs’ argument as asserting that Commerce was obligated to limit the application of the
    Cohen’s d test to export prices “that reflect the ‘mean of comparable merchandise’ or lower,”
    Defendant responds by explaining that Commerce properly considered all export prices in its
    Cohen’s d calculations because “‘higher-priced sales are equally capable as lower-priced sales
    of creating a pattern of prices that differ significantly.’” Def.’s Resp. 30 (quoting Final I&D Memo
    at 26). At oral argument, Plaintiffs clarified that its argument is that Commerce improperly
    considered sales priced higher than the mean in the ratio test. See Oral Arg., 1:03:10–1:03:42.
    While it remains unclear which “mean” Plaintiffs refer to, it is inconsequential because it has no
    bearing on the court’s decision on this issue.
    Court No. 14-00226                                                                   Page 35
    be dumped or could be masking other dumped sales . . . . By considering all sales, both
    higher-priced and lower-priced, the Department is able to analyze an exporter’s pricing
    behavior and to identify whether there is a pattern of prices that differ significantly.” Final
    I&D Memo at 26.        This practice is based upon a methodological approach that is
    reasonable and has been adequately explained. See State Farm, 
    463 U.S. at
    48–49
    (“[A]n agency must cogently explain why it has exercised its discretion in a given
    manner.”); Fujitsu General Ltd., 
    88 F.3d at 1039
     (granting Commerce significant
    deference in determinations “involv[ing] complex economic and accounting decisions of
    a technical nature”); Ceramica Regiomontana, S.A., 
    636 F. Supp. at 966
    , aff’d, 
    810 F.2d at 1139
     (affording deference to Commerce’s methodology so long as it reasonably
    effectuates the statutory purpose and is supported by substantial evidence). Commerce’s
    practice in reviews requires it to identify a pattern of export prices that differ significantly
    among purchasers, regions, or periods of time. The inquiry is not limited to lower-priced
    export prices. It is appropriate for Commerce to consider all sales in its analysis because,
    in determining whether A-T is appropriate, Commerce is required to uncover significant
    differences in a respondent’s export prices, which necessarily calls for looking at the
    differences in higher and lower-priced sales to assess whether those differences are in
    fact significant. Considering all sales allows Commerce to fully assess the breadth of a
    respondent’s price differences. Thus, it is reasonable to examine all of a respondent’s
    sales in its differential pricing analysis.
    Nonetheless, Plaintiffs argue that Commerce “improperly increase[d] the pool of
    sales to which Commerce applies its alternative A-T methodology” by “includ[ing] all sales
    Court No. 14-00226                                                                Page 36
    that ‘passed’ the Cohen’s d test, regardless of whether the sales were priced higher or
    lower than sales in the test group.” Pls.’ Mot. 43. Plaintiffs argue that Commerce should
    only consider lower-price sales that pass the Cohen’s d test “for purposes of determining
    the 33/66 test” in order to be consistent with the statutory scheme. Id. at 45. Plaintiffs
    base their argument on the notion that Commerce must limit its analysis to dumped sales.
    Plaintiffs’ argument is inapposite because it misconstrues the function of the test
    that Commerce has established. All sales are subject to the differential pricing analysis
    because its purpose is to determine to what extent a respondent’s U.S. sales are
    differentially priced, not to identify dumped sales.    See Final I&D Memo at 25–26.
    Commerce is not restricted in what type of sales it may consider in assessing the
    existence of such a pattern so long as its methodological choice enables Commerce to
    reasonably determine whether application of A-T is appropriate.            See 
    19 C.F.R. § 351.414
    (c)(1).
    Plaintiffs’ reliance on legislative history to support their argument is unavailing.
    See Pls.’ Mot. 43 (citing Statement of Administrative Action Accompanying the Uruguay
    Round Agreements Act, H.R. Doc. No. 103-316, vol. 1, at 843 (1994), reprinted in 1994
    U.S.C.C.A.N. 4040, 4178 (“SAA”)). Plaintiffs assert that, according to the SAA, “the whole
    point of Commerce’s [differential pricing] analysis and A-T remedy is to combat ‘targeted
    dumping.’” 
    Id.
     Plaintiffs yet again fail to recognize that the subject of Commerce’s inquiry
    is differentially priced sales, not dumped sales. See Final I&D Memo at 25–26. Contrary
    to Plaintiffs’ argument, the SAA also explains “an exporter may sell at a dumped price to
    particular customers or regions, while selling at higher prices to other customers or
    Court No. 14-00226                                                               Page 37
    regions.” SAA at 4177–78. Therefore, the SAA also supports the view that consideration
    of both lower and higher-priced sales may be appropriate in determining whether
    application of A-T is necessary to unmask dumping. For the reasons discussed above,
    Plaintiffs are unable to demonstrate that Commerce’s decision to consider all sales in the
    ratio test was unreasonable.
    iii.   Commerce’s Pattern Determination is Supported by Substantial Evidence
    Because of the challenges discussed above, Plaintiffs argue that Commerce’s
    finding that the mandatory respondents’ U.S. sales exhibited a pattern of export prices
    that differ significantly among purchasers, regions, or time periods is not supported by
    substantial evidence. See Pls.’ Mot. 26–28; Pls.’ Reply 12–13. Plaintiffs insist that there
    is no particular reason why certain sales passed the Cohen’s d test while other sales did
    not pass because “pricing differences among sales that ‘passed’ Cohen’s d and those
    that failed were often minuscule.” Pls.’ Mot. 27. Defendant in response explains “that
    certain select prices that pass and fail the Cohen’s d test are close in value does not
    mean that the differences between the sales, as well as the thousands of other sales, are
    not statistically significant.” Def.’s Resp. 33.
    The fact that the price differences between sales that pass and do not pass the
    Cohen’s d test were at times small in absolute terms does not undermine Commerce’s
    pattern determination. Indeed, “small differences may be significant for one industry or
    one type of product but not for another.” Final I&D Memo at 24 (quoting SAA at 843).
    Commerce explained that its analysis has been developed to identify significant price
    differences depending on what is considered significant for a particular industry or
    Court No. 14-00226                                                                  Page 38
    product. See 
    id.
     “Specifically, the Cohen’s d coefficient measures the significance of the
    difference in the weighted-average sales price between the test and comparison groups
    relative to the variances of the individual sales prices within each group.” 
    Id.
     Therefore,
    Commerce’s approach accounts for what degree of price differences is necessary to be
    deemed significant by comparing sales prices in relation to the average price variation
    between sales prices of a CONNUM, i.e., the test group and comparison group. The
    significance of the price difference is determined by the “variance[] of the individual sales
    prices within each group.” 
    Id.
     “Thus, if there is little variance in prices among purchasers
    in a particular industry, regions, or time periods, then small differences, in absolute terms,
    may be significant. On the other hand, if individual sale prices within each comparison
    group . . . have a greater variability . . . [,] then there must be greater differences in the
    weighted-average sale prices between the two groups for the difference to be significant.”
    
    Id.
     The fact that the price differences among the sales passing and not passing the
    Cohen’s d test are insignificant in absolute terms does not mean that the relative
    differences are not significant for purposes of identifying a pattern of significant price
    differences. Implicit in Commerce’s approach is that the relative significance of the
    differences is what matters. Accordingly, Commerce’s pattern determination is supported
    by substantial evidence.
    B. Commerce Has Explained Why A-A Cannot Account for the Pattern of
    Significant Price Differences
    Plaintiffs challenge Commerce’s determination that A-A cannot account for the
    pattern of significant price differences. See Pls.’ Mot. 28–36. Defendant responds that
    Court No. 14-00226                                                                        Page 39
    Commerce provided an adequate explanation by evaluating whether the differences in
    the A-A margin in comparison to the A-T margin are “meaningful.” See Def.’s Resp. 34.
    Commerce has adequately explained why A-A cannot account for the pattern of
    significant price differences.
    Once Commerce establishes that there is a pattern of significant price differences,
    Commerce’s practice in reviews requires it to explain whether A-A cannot account for
    such price differences before deciding to apply A-T. 22 Commerce has chosen to answer
    whether A-A cannot account for such price differences by engaging in its meaningful
    differences analysis, which is the second stage of the differential pricing analysis. See
    Prelim. I&D Memo at 7; Final I&D Memo at 3, 22. In its meaningful differences analysis,
    Commerce examines whether A-A can account for the significant price differences
    attributable to the subject sales that pass both the Cohen’s d test and ratio test. See
    Prelim. I&D Memo at 7. To answer this inquiry, Commerce determines whether the A-T
    margin, calculated in the manner suggested by the preceding Cohen’s d and ratio tests,
    yields a meaningful difference in comparison to the A-A calculated margin. See 
    id.
     In
    22
    The court acknowledges that the statute governing Commerce’s authority to apply A-T in
    investigations conditions its use upon Commerce providing an explanation for why A-A and T-T
    cannot account for the observed pattern of significant price differences. See 19 U.S.C.
    § 1677f-1(d)(1)(B)(ii). However, Commerce’s practice in reviews evidently differs from the
    statutory requirements in that regard because in reviews Commerce has only provided an
    explanation for why A-A cannot account for the significant price differences observed in the first
    stage of the differential pricing analysis. Because Commerce is not bound by the statute, but
    rather, it is bound by its practice, and Plaintiffs apparently have not challenged Commerce’s failure
    to explain why T-T cannot account for the pattern of significant price differences, the court does
    not opine on whether Commerce provided an adequate explanation for why T-T in addition to
    A-A cannot account for the significant price difference, as Commerce is required by statute in an
    investigation.
    Court No. 14-00226                                                                      Page 40
    other words, Commerce’s meaningful difference analysis calls for a comparison of
    margins calculated by applying A-A and A-T in the manner suggested by the ratio test.
    See id. Commerce finds a meaningful difference in the calculated margins if (1) the A-T
    calculated margin crosses the de minimis threshold while the A-A calculated margin
    remains de minimis, or, (2) if both calculated margins are above de minimis, the A-T
    calculated margin is 25% greater than the A-A calculated margin. 23 See id. If such a
    finding is made, Commerce proceeds to apply A-T as dictated by the first stage of the
    analysis to calculate the respondent’s antidumping duty rate.             See id.    Put simply,
    Commerce finds that A-A cannot account for the significant price differences if there is a
    meaningful difference between the A-A calculated margin as compared to the A-T
    calculated margin. See id.; Final I&D Memo at 3, 22.
    Here, Commerce calculated a margin of 0.00% for both respondents when using
    A-A, however, it calculated a margin of 1.97% for Devi Fisheries and 3.01% for Falcon
    Marine when using A-T as directed by the ratio test. See Devi Fisheries’ Prelim. Calcs.
    at 2; Falcon Marine’s Prelim. Calcs. at 2. Thus, Commerce determined that the A-A
    method could not account for the significant price differences among the mandatory
    respondents’ U.S. sales because the A-T calculated margin resulted in a meaningful
    difference in relation to the A-A calculated margin. See Devi Fisheries’ Prelim. Calcs. at
    1–2; Falcon Marine’s Prelim. Calcs. at 1–2. For Devi Fisheries, Commerce explained that
    23
    Because the latter is not implicated in this case, the court’s discussion is limited to assessing
    whether Commerce’s conclusion in the second stage of the differential pricing analysis, that
    application of A-T was appropriate here because the A-T calculated margin crossed the de
    minimis threshold while the A-A calculated margin remained de minimis, provided an adequate
    explanation for why A-A cannot account for the significant price differences.
    Court No. 14-00226                                                               Page 41
    “when comparing the weighted-average dumping margins calculated using the average-
    to-average method for all U.S. sales and the average-to-transaction method for all U.S.
    sales, there is a meaningful difference in the results (i.e., the margin moves across the
    de minimis threshold).” Devi Fisheries’ Prelim. Calcs. at 2. Similarly, for Falcon Marine,
    Commerce explained that “when comparing the weighted-average dumping margins
    calculated using the average-to-average method for all U.S. sales and the ‘mixed
    alternative’ methodology, there is a meaningful difference in the results (i.e., the margin
    moves across the de minimis threshold).” Falcon Marine’s Prelim. Calcs. at 2. As a
    result, Commerce proceeded to apply A-T in some form to calculate the mandatory
    respondents’ dumping margins. See Devi Fisheries’ Prelim. Calcs. at 2; Falcon Marine’s
    Prelim. Calcs. at 2.
    The court must address whether Commerce’s explanation for why A-A cannot
    account for the pattern of significant price differences is reasonable. See State Farm,
    
    463 U.S. at
    48–49; Fujitsu General Ltd., 
    88 F.3d at 1039
    ; Ceramica Regiomontana, S.A.,
    
    636 F. Supp. at 966
    , aff’d, 
    810 F.2d at 1139
    . Commerce’s rationale presumes that A-A
    cannot account for the pattern of significant price differences if the difference in the
    margins calculated using A-A and A-T is meaningful. As stated previously, Commerce’s
    explanation posits that there is a meaningful difference where the A-A calculated margin
    is de minimis and the A-T calculated margin is not de minimis. Implicit in Commerce’s
    meaningful differences analysis is that A-A can account for some degree of price
    differences. There may be instances where the identified prices differences do not mask
    dumping or the masked dumping itself is de minimis. However, where the amount of
    Court No. 14-00226                                                                        Page 42
    uncovered masked dumping results in an A-T calculated margin that is not de minimis,
    and the A-A calculated margin would be de minimis, it is reasonable for Commerce to
    presume that A-A cannot account for the pattern of significant price differences because,
    unlike A-T, A-A cannot uncover the dumping that was masked by the differentially priced
    sales. The fact that A-A was unable to calculate more than a negligible dumping margin
    while A-T was able to is reason enough to demonstrate that A-A could not account for the
    pattern of significant price differences here. 24
    24
    In other instances, the Court has found that Commerce has failed to satisfy its obligation to
    explain why A-A cannot account for the pattern of significant price differences. See, e.g., Beijing
    Tianhai Industry Co. v. United States, 39 CIT __, __–__, 
    106 F. Supp. 3d 1342
    , 1349–51 (2015).
    Here, however, the court finds that Commerce’s explanation for why A-A cannot account for the
    pattern of significant price differences is adequate given the circumstances.
    Admittedly, the language of the statute and legislative history suggest that A-A will more
    often than not be able to account for the price differences identified pursuant to 19 U.S.C.
    § 1677f-1(d)(1)(B)(i). See 19 U.S.C. § 1677f-1(d)(1)(B)(ii); SAA at 843. However, the statutory
    directive for investigations, which now guides Commerce’s approach in reviews, was written
    during a time when zeroing under A-A was allowed and indeed the norm in investigations. In
    such a case it might be rare that A-A could not account for differences and in those rare cases
    such an explanation would more easily present itself. Now that A-A no longer entails zeroing, see
    generally Antidumping Proceedings: Calculation of the Weighted-Average Dumping Margin
    During an Antidumping Investigation; Final Modification, 
    71 Fed. Reg. 77,722
     (Dep’t Commerce
    Dec. 27, 2006), Commerce is left in a difficult position because the statutory language remains
    the same despite the dramatic change in the A-A method. It is now unlikely that A-A could account
    for the price differences because A-A now provides offsets for negative dumping, which may mask
    those price differences rather than account for such differences.
    Nonetheless, there are cases where despite the finding of a pattern of export prices that
    differ significantly, A-A will be able to account for those differences. For example, A-A would be
    able to account for the pattern of significant price differences if the respondent’s dumping, if any,
    is not masked by the significant price differences.
    Where the dumping is masked by the significant price differences, it is unlikely that A-A
    will be able to account for those price differences. In those cases, Commerce has implemented
    a practice of using the meaningful differences analysis, which effectively presumes that A-A
    cannot account for the pattern of significant price differences if the A-T calculated margin crosses
    the de minimis threshold while the A-A calculated margin remains de minimis. To provide an
    explanation, Commerce must draw a connection between the differences and the efficacy of A-A
    (footnote continued)
    Court No. 14-00226                                                                       Page 43
    Moreover, reasonableness in a review is particularly tied to the objective of the
    review itself. Administrative reviews have unique “transactional accuracy interests,” and,
    as a result, the objective of a review is to uncover dumping with greater specificity. See
    Union Steel v. United States, 
    713 F.3d 1101
    , 1104 (Fed. Cir. 2013). In furtherance of that
    objective, it is reasonable for Commerce to presume that A-A cannot account for the price
    differences in instances where A-A is unable to uncover any dumping at all and A-T is
    able to do so. Therefore, Commerce’s explanation that A-A could not account for the
    significant price differences here is reasonable.
    Plaintiffs argue that Commerce improperly considered all sales in the meaningful
    difference analysis rather than limiting the analysis to targeted sales. See Pls.’ Mot. 31–
    33. Plaintiffs contend that Commerce’s requirement to explain why A-A cannot account
    for “such differences” is in direct reference to the export prices that exhibited significant
    price differences, i.e., passed the Cohen’s d test, which Plaintiffs refer to as targeted
    sales. See 
    id. at 32
    . Plaintiffs are unable to point to any authority that restricts Commerce
    from comparing margins encompassing all sales rather than comparing margins limited
    to the sales that passed the Cohen’s d test. It is reasonable for Commerce to judge
    as compared to A-T. Here, Commerce observed the differences in the margins calculated by the
    two methods and presumed that the significant price differences cannot be accounted for by A-A
    because “when comparing the weighted-average dumping margins . . . , there is a meaningful
    difference in the results (i.e., the margin moves across the de minimis threshold).” Devi Fisheries’
    Prelim. Calcs. at 2; Falcon Marine’s Prelim. Calcs. at 2. The court can discern from Commerce’s
    explanation that A-A cannot account for the pattern of significant price differences because A-A
    masked the dumping that was occurring as revealed by the A-T calculated margin. Thus, the
    meaningful difference between the margins demonstrated that A-A is not equipped to uncover the
    mandatory respondents’ dumping. Although the court finds Commerce’s explanation to be less
    than ideal, Commerce adequately explained why A-A cannot account here.
    Court No. 14-00226                                                                   Page 44
    whether A-A is able to account for the price differences by assessing its ability to do so
    against all sales, as it would ultimately need to be able to do so when calculating the
    dumping margin.
    Similarly, Plaintiffs’ argument that Commerce’s meaningful differences analysis
    “was mostly just measuring the effect of zeroing” lacks merit. 
    Id. at 34
    . Plaintiffs contend
    that if Commerce were to eliminate zeroing on the A-T side of the comparison or zero for
    both the A-T and A-A margin calculations, the difference between the A-T and A-A
    margins for the mandatory respondents are minimal. See 
    id.
     While Plaintiffs may be
    correct that the A-T and A-A margins would be nearly identical if one were to either
    eliminate zeroing or zero on both sides of the comparison, that fact does not present an
    arguable issue because zeroing is used in conjunction with A-T and has been affirmed
    as reasonable by the Court of Appeals for the Federal Circuit. 25 The purpose of A-T is to
    reveal those cases where offsetting masks dumping, and that purpose is achieved by
    zeroing. Indeed, without zeroing the A-A and A-T comparison methodologies “would
    always be mathematically equivalent, obviating any benefit derived from having an
    25
    The A-T method, unlike the A-A comparison method, is typically used in conjunction with
    “zeroing where negative dumping margins (i.e., margins of sales of merchandise sold at
    nondumped prices) are given a value of zero and only positive dumping margins (i.e., margins for
    sales of merchandise sold at dumped prices) are aggregated.” See Union Steel, 713 F.3d at 1104
    (internal quotations omitted); see also Final Modification, 77 Fed. Reg. at 8,101. Zeroing has
    been found as a reasonable interpretation of “dumping margin” in 
    19 U.S.C. § 1677
    (35)(A). See,
    e.g., Timken Co. v. United States, 
    26 CIT 1072
    , 1085–86, 
    240 F. Supp. 2d 1228
    , 1242–44 (2002)
    aff’d, 
    354 F.3d 1334
    , 1340–45 (Fed. Cir. 2004) (determining that zeroing in an administrative
    review was a reasonable interpretation of an ambiguous statute); Corus Staal BV v. Dep’t of
    Commerce, 
    27 CIT 388
    , 395–400, 
    259 F. Supp. 2d 1253
    , 1260–65 (2003) aff’d, 
    395 F.3d 1343
    ,
    1347 (Fed. Cir. 2005) (determining that zeroing in an antidumping duty investigation was a
    reasonable interpretation of an ambiguous statute).
    Court No. 14-00226                                                                        Page 45
    alternative comparison methodology in the statute.”             Def.’s Resp. 40.      The zeroing
    characteristic of A-T is inextricably linked to the comparison methodology and its effect in
    the meaningful difference analysis does not render the approach unreasonable. Thus,
    despite Plaintiffs’ contentions, Commerce’s determination that A-A could not account for
    the significant price differences here is reasonable.
    C. Commerce’s Application of the Mixed Comparison Methodology
    Plaintiffs argue that in applying the mixed comparison methodology 26 and
    aggregating the A-T and A-A margins to calculate Falcon Marine’s weighted-average
    dumping margin, Commerce improperly used what Plaintiffs refer to as “double-zeroing.”
    See Pls.’ Mot. 37–43. Defendant responds that Plaintiffs’ claim lacks a legal basis for
    restricting Commerce’s discretion, and Commerce’s approach is reasonable because it
    allows Commerce to avoid potential remasking of dumping. See Def.’s Resp. 41–44.
    In those cases where between 33% and 66% of the value of a respondent’s U.S.
    sales pass the Cohen’s d test, Commerce applies a hybrid methodology whereby it
    applies A-T only to a portion of a respondent’s sales. See Prelim. I&D Memo at 6. Under
    26
    According to Commerce’s practice, the ratio test supports applying A-T to all U.S. sales,
    whether passing the Cohen’s d test or not, if the value of the sales passing the Cohen’s d test
    accounts for at least 66% of the value of all sales. See Prelim. I&D Memo at 6. Within this
    threshold, Commerce views the extent of the significance of the price differences to be so
    pervasive as to warrant applying A-T to all U.S. sales. Conversely, the ratio test does not support
    application of the alternative A-T method to any sales if the sales passing the Cohen’s d test
    account for 33% or less of the value of all sales. See 
    id.
     Commerce views sales under this
    category fall short to constitute a pattern of significant price differences. However, the ratio test
    supports application of a mixed methodology, combining two margins calculated by applying A-T
    only to those sales passing the Cohen’s d test and A-A to all other sales, if the sales passing the
    Cohen’s d test account for more than 33% but less than 66% of the value of all sales. See 
    id.
    Thus, Commerce has fashioned remedies dependent upon which threshold the respondent’s
    pricing behavior falls under.
    Court No. 14-00226                                                               Page 46
    this hybrid methodology, Commerce calculates two weighted-average dumping margins,
    one using A-T with zeroing, and a second margin using A-A with offsets of negative
    dumping to the other sales. Commerce then aggregates the two calculated margins and
    in the process prevents any excess negative dumping from the A-A calculated margin
    from negating the A-T calculated margin. Plaintiffs’ challenge lies in the last step of the
    methodology.
    Here, Commerce calculated a combined margin of 3.01% for Falcon Marine by
    applying A-T to its sales that passed the Cohen’s d test and applying A-A to the sales that
    did not pass the Cohen’s d test. See Falcon Marine’s Prelim. Calcs. at 2. Commerce
    aggregated the two calculated margins but did not allow the A-A calculated margin to
    provide for additional offsets while aggregating the margins. Commerce justified its
    method with the following explanation:
    The [A-A] method and the [A-T] method are different comparison methods
    which are provided for in the act and regulations and which are distinct and
    independent from each other. . . . To calculate the weighted-average
    dumping margin for a respondent whose sales have been evaluated using
    more than one comparison method, the Department reasonably aggregates
    the results of each of these distinct comparison methods . . . . To allow for
    offsets when combining the results of the mixed comparison approach
    would defeat the purpose of the [A-T] method . . . . Such an approach would
    allow the results of the [A-A] method to reduce or completely negate the
    results of the [A-T] method prescribed by [19 U.S.C. § 1677f-1(d)(1)(B)].
    Instead, by preserving the results of the [A-T] method, the Department
    ensures that the purpose of the [A-T] method of uncovering masked
    dumping is fulfilled, just as it is when the Department applies the [A-T]
    method as a singular comparison method.
    Final I&D Memo at 35–36.
    Court No. 14-00226                                                              Page 47
    Plaintiffs do not challenge Commerce’s decision to apply a hybrid methodology,
    nor the thresholds it has established. Instead, Plaintiffs contend that although Commerce
    must necessarily calculate two separate rates, A-T for the differentially priced sales and
    A-A for the other sales, it should allow the remaining non-dumped sales from the latter
    group to offset the dumping in the former rather than zero them when the two rates are
    combined. See Pls.’ Mot. 37–43. Given that there is no legal authority that constrains
    how Commerce is to apply A-T when appropriate or arrive at the final margin in its hybrid
    methodology, the court must only address whether Commerce’s methodology is
    reasonable. See Fujitsu General Ltd., 
    88 F.3d at 1039
    ; Ceramica Regiomontana, S.A.,
    
    636 F. Supp. at 966
    , aff’d, 
    810 F.2d at 1139
    .
    Commerce has crafted an analysis that applies A-T in proportion to the degree of
    a respondent’s impermissible pricing behavior. Such a scheme is consistent with the fact
    that the antidumping duty regime is intended to be remedial as opposed to punitive. See
    Agro Dutch Indus. Ltd. v. United States, 
    508 F.3d 1024
    , 1027 (Fed. Cir. 2007) (“The
    purpose of the antidumping statute is to prevent foreign goods from being sold at unfairly
    low prices in the United States to the injury of existing or potential United States
    producers.”). To calculate Falcon Marine’s weighted-average dumping margin in the
    mixed comparison methodology, Commerce had the option to aggregate the two
    calculated margins by either providing for or not providing for offsets where there was
    negative dumping in the sales subject to A-A. Commerce has made the discretionary
    decision not to provide for offsets to calculate the weighted-average dumping margin for
    a respondent whose dumping has been assessed using more than one comparison
    Court No. 14-00226                                                                         Page 48
    method. Commerce’s method of aggregating two separate weighted averages, one with
    offsets and one without, is reasonable because it proportionately applies the remedy
    across the sales. It is not unreasonable for Commerce to decline to use offsets during
    the aggregation stage because, as explained by Commerce, without such offsets, the
    masked dumping uncovered by the analysis is preserved and the A-T remedy
    nonetheless remains confined to the differentially priced sales by “summing the amount
    of dumping and the U.S. sales value for each of these methods.” Final I&D Memo at 35–
    36.
    Plaintiffs’ argument that “double-zeroing” results in an arbitrary and unfair rate is
    belied by its own example. See Pls.’ Mot. Attach. 1 at 1. In a comparison of positive
    dumping and negative dumping on both A-A and A-T sales, Plaintiffs contend Falcon
    Marine receives a 3.01% rate with double-zeroing and a 1.52% rate without double-
    zeroing. But Plaintiffs fail to consider the fact that the 3.01% rate is a rate that is derived
    from dividing its A-T sales by the value of all its sales, both sales that were found to be
    differentially priced and those that were not. 27 See 
    id.
     at 1 n.2. The A-T rate has already
    been offset by virtue of the aggregation of the two rates because the 3.01% rate is a
    27
    Plaintiffs argue that Commerce should further offset the total amount of dumping with Falcon
    Marine’s negative dumped sales before aggregating the A-T and A-A calculated margins, i.e.,
    ([[              ]] – [[     ]]) / [[             ]], for an antidumping duty rate of 1.52%. See Pls.’
    Mot. Attach. 1 at 1. Commerce has instead chosen to aggregate the A-T and A-A calculated
    margins by dividing the total amount of the uncovered dumping by the value of all sales, i.e.,
    [[              ]] / [[          ]], to arrive at an antidumping duty rate of 3.01%. See Falcon
    Marine Prelim. Calcs. at 70 (providing the value of the dumped sales and all sales). Commerce
    has fashioned a remedy calling for an intermediary application of A-T that is proportionate to the
    degree of masked dumping in relation to the value of all sales. See Falcon Marine Prelim. Calcs.
    at 70 (providing the value of the dumped sales and all sales subject to A-T).
    Court No. 14-00226                                                              Page 49
    function of the value of the dumped sales relative to the total value of all sales. Thus,
    Commerce’s aggregation method is reasonable because the remedy for Falcon Marine’s
    pricing behavior has been limited to address the masked dumping by proportionally
    applying the remedy across all sales.
    Plaintiffs’ proposition to provide for further offsets could render the A-T method
    ineffective in situations where a respondent’s U.S. sales fall between the 33% and 66%
    threshold and result in a negative dumping margin in the A-A side of the equation. As
    Defendant points out, Plaintiffs are supporting “double-offsetting” in the process of
    arguing that Commerce has “double-zeroed.” See Def.’s Resp. 44. It is reasonable for
    Commerce to prevent the A-A margin from diminishing the A-T margin for the same
    reasons why the A-T method does not provide for offsets for negative dumping. Margins
    calculated using A-T only trend upwards due to the inherent nature of the methodology.
    To declare Commerce’s refusal to offset the A-T margin with the A-A margin
    unreasonable would in turn undermine the A-T method as a whole.
    V.   Commerce’s Rejection of Respondents’ Administrative Case Brief Was
    Reasonable and in Accordance with Law
    Plaintiffs contend that Commerce’s rejection of Respondents’ case brief was
    unsupported by substantial evidence and not in accordance with law. See Pls.’ Mot. 45.
    Defendants argue that Respondents “filed untimely new factual information in their initial
    case brief.” Def’s Resp. 45. Commerce properly rejected Respondents’ case brief for
    containing untimely filed new factual information.
    Court No. 14-00226                                                                      Page 50
    Commerce’s regulations specify deadlines for when parties must make
    submissions. See e.g., 
    19 C.F.R. § 351.301
    (a) (providing that “[t]his section sets forth
    the time limits for submitting factual information”). For reviews commenced prior to May
    10, 2013, any submission of factual information is due no later than “140 days after the
    last day of the anniversary month” of the antidumping duty order.                      
    19 C.F.R. § 351.301
    (b)(2).       The regulations define factual information as “(i) [i]nitial and
    supplemental questionnaire responses; (ii) [d]ata or statements of fact in support of
    allegations; (iii) [o]ther data or statements of facts; and (iv) [d]ocumentary evidence.”28
    28
    Commerce modified its regulation providing for the definition of factual information. The
    regulation now provides the following definition:
    (21) Factual information. “Factual information” means:
    (i) Evidence, including statements of fact, documents, and data
    submitted either in response to initial and supplemental
    questionnaires, or, to rebut, clarify, or correct such evidence
    submitted by any other interested party;
    (ii) Evidence, including statements of fact, documents, and data
    submitted either in support of allegations, or, to rebut, clarify, or
    correct such evidence submitted by any other interested party;
    (iii) Publicly available information submitted to value factors under
    § 351.408(c) or to measure the adequacy of remuneration under
    § 351.511(a)(2), or, to rebut, clarify, or correct such publicly
    available information submitted by any other interested party;
    (iv) Evidence, including statements of fact, documents and data
    placed on the record by the Department, or, evidence submitted by
    any interested party to rebut, clarify or correct such evidence placed
    on the record by the Department; and
    (v) Evidence, including statements of fact, documents, and data,
    other than factual information described in paragraphs (b)(21)(i)–of
    this section, in addition to evidence submitted by any other
    interested party to rebut, clarify, or correct such evidence.
    
    19 C.F.R. § 351.102
    (b)(21) (2015). However, this definition for factual information only applies to
    (footnote continued)
    Court No. 14-00226                                                                  Page 51
    
    19 C.F.R. § 351.102
    (b)(21).      Notwithstanding 
    19 C.F.R. § 351.301
    (b)(2), interested
    parties may submit factual information to rebut factual information submitted by another
    interested party “prior to the deadline,” or, “[i]f factual information is submitted less than
    10 days before, on, or after . . . the application deadline for submission of such factual
    information, . . . no later than 10 days after the date such factual information is served on
    the interested party.” See 
    19 C.F.R. § 351.301
    (c)(1). When Commerce rejects factual
    information as untimely, it disregards it in making any determination, and the record
    reflects it for the sole purpose of “documenting the basis for rejecting the document.” 
    19 C.F.R. § 351.104
    (a)(2).
    On May 2, 2014, Respondents submitted a case brief disputing the propriety of the
    differential pricing analysis. See generally Respondents’ Rejected Case Brief, PD 150–
    51 at bar code 3199459-01 (May 2, 2014). Commerce rejected Respondents’ case brief
    for containing expert economic analysis and excerpts from a U.S. International Trade
    Commission (“ITC”) Staff Report, which Commerce considered to be untimely filed new
    factual information pursuant to 
    19 C.F.R. § 351.301
    (b)(2). See First Rejection Letter at
    1, PD 153 at bar code 3199778-01 (May 5, 2014); First Rejection Memorandum, PD 154
    at bar code 3199858-01 (May 6, 2014). Respondents re-filed the case brief with the
    rejected information redacted. Respondents twice sought reconsideration but were
    rejected. See generally Respondents’ Case Brief, PD 156–57 at bar code 3200354-01
    proceedings initiated on or after May 10, 2013. See Definition of Factual Information and Time
    Limits for Submission of Factual Information, 
    78 Fed. Reg. 21,246
    , 21,246 (Dep’t Commerce Apr.
    10, 2013). Because the instant review was commenced on April 2, 2013, the former version of
    the definition for factual information governs this case.
    Court No. 14-00226                                                               Page 52
    (May 8, 2014); Second Rejection Letter, PD 164 at bar code 3201803-01 (May 14, 2014);
    Second Request for Reconsideration, PD 167 at bar code 3202381-01 (May 16, 2014);
    Second Rejection Memorandum, PD 168 at bar code 3202864-01 (May 20, 2014); Letter
    from Commerce Pertaining to New Factual Information, PD 170 at bar code 3206406-01
    (June 2, 2014).
    Commerce reasonably rejected Respondents’ case brief for containing untimely
    filed new factual information.   Because Respondents submitted their case brief on
    May 2, 2014, any new factual information was untimely as the deadline for such
    information was July 18, 2013. See 
    19 C.F.R. § 351.301
    (b)(2). Commerce noted that
    the information consisted of “1) an analysis submitted by the respondents’ affiant,
    including this individual’s credentials; 2) citations to, and information from, statistical
    reference materials; and, 3) data from other U.S. government agencies,” and concluded
    that “[s]uch categories of information are more than mere argument.” Final I&D Memo at
    40. As Commerce correctly concluded, Respondents’ expert economic opinion included
    statistical references, analysis, and mathematical formulae not previously submitted on
    the administrative record.    Thus, the expert opinion provided evidentiary support for
    Respondents’ argument using information that was not on the record.               Even if
    Respondents’ expert opinion only analyzed information already on the record, the expert
    analysis “clearly assumes the weight of evidence and, as such, amounts to [d]ata or
    statements of fact in support of allegations, i.e., factual information." See PSC VSMPO-
    Avisma Corp. v. United States, 
    688 F.3d 751
    , 760–61 (Fed. Cir. 2012) (internal quotations
    omitted). Similarly, Respondents’ excerpt of the ITC Staff Report included data not
    Court No. 14-00226                                                               Page 53
    previously on the administrative record “submitted for the purpose of the facts contained
    therein.” Final I&D Memo at 42. Thus, Commerce’s determination that Respondents’
    case brief contained untimely new factual information is supported by substantial
    evidence and in accordance with law.
    Plaintiffs contend that Commerce improperly rejected the information in their case
    brief because such information was argument, not new factual information. See Pls.’ Mot.
    46. However, Plaintiffs do not provide any authority to support their conclusory claim that
    Respondents’ submission contained argument rather than factual information.
    Plaintiffs alternatively assert that Respondents’ case brief rebutted new
    information placed on the record by Commerce in the preliminary results. See Pls.’ Mot.
    46; Pls.’ Reply 28–29. As a preliminary matter, Commerce’s preliminary determination
    does not contain new factual information. In its preliminary determination, Commerce
    makes its findings based on information that has been timely submitted and placed on
    the record.   Further, Commerce’s regulation permits the submission of new factual
    information to rebut information submitted by an interested party, not Commerce. See 
    19 C.F.R. § 351.301
    (c)(1) (providing that “[a]ny interested party may submit factual
    information to rebut, clarify, or correct factual information submitted by any other
    interested party”) “Interested party” includes, among others, foreign manufacturers,
    foreign exporters, foreign producers, or U.S. importers, but does not include Commerce.
    Court No. 14-00226                                                                       Page 54
    See 
    19 U.S.C. § 1677
    (9). 29 In fact, Commerce is separately listed as “Department” under
    
    19 C.F.R. § 351.102
    (b)(15) and “Administering authority” under 
    19 U.S.C. § 1677
    (1).”
    The regulation confers a limited right to submit new information as rebuttal only after
    another interested party has submitted factual information and fails to offer the support
    Respondents need. 30
    Plaintiffs contend that Commerce’s rejection of Respondents’ case brief denied
    Respondents a meaningful opportunity to comment because the Cohen’s d test was first
    announced in the preliminary results, promulgated on March 25, 2014, long after the July
    18, 2013 deadline for submitting new factual information. See Pls.’ Mot. 46; Pls.’ Reply
    28–29. At oral argument, Plaintiffs further argued that Respondents were first given
    notice of the specifics of the analysis and determined there was a need to obtain an expert
    to make a challenge when the preliminary results were issued. See Oral Arg., 1:58:40–
    2:00:38.
    29
    The regulations do not expressly provide for a definition of “interested party,” but incorporate
    terms defined in the Tariff Act of 1930, as amended, that are not defined in the relevant
    regulations. See 
    19 C.F.R. § 351.102
    (a), (b)(17), (b)(42) (directing attention to 
    19 U.S.C. § 1677
    (9)(A)–(G) for definitions of domestic and respondent interested party).
    30
    Even if Commerce were considered an interested party, Plaintiffs still cannot avail themselves
    of the rebuttal exception, as the exception confers the right to rebut information submitted by an
    interested party no later than 10 days after such submission. See 
    19 C.F.R. § 351.301
    (c)(1).
    Respondents did not submit the new factual information until 45 days after the preliminary results
    were issued. While the case brief was timely, the factual information contained therein was
    untimely even for rebuttal purposes. The court recognizes that Commerce has since amended
    its regulations to provide interested parties a single opportunity “to submit factual information to
    rebut, clarify, or correct factual information placed on the record of the proceeding by the
    Department by a date specified by the Secretary.” 19 C.F.R. 351.301(c)(4) (2015). However,
    this provision only applies to proceedings initiated on or after May 10, 2013. See Definition of
    Factual Information and Time Limits for Submission of Factual Information, 
    78 Fed. Reg. 21,246
    ,
    21,246 (Dep’t Commerce Apr. 10, 2013).
    Court No. 14-00226                                                                 Page 55
    Respondents had notice and a meaningful opportunity to comment upon the
    Cohen’s d test before the preliminary results were issued. Respondents were entitled to
    “‘notice and a meaningful opportunity to be heard.’” PSC VSMPO-Avisma Corp., 688
    F.3d at 761–62 (quoting LaChance v. Erickson, 
    522 U.S. 262
    , 266 (1998)). Respondents’
    case brief contained both specific and general challenges with respect to Commerce’s
    differential pricing analysis. As Commerce noted, the Cohen’s d test was announced in
    a post-preliminary analysis memo promulgated on March 4, 2013 in connection with the
    investigation of xanthan gum from the People’s Republic of China, before the instant
    review had even been initiated. See Xanthan Gum From the People’s Republic of China,
    78 Fed. Reg. at 33,351 n.2 (citing to the March 4, 2013 post-preliminary differential pricing
    analysis); see also Final I&D Memo at 41.         Further, Commerce cited to two other
    administrative reviews where it employed the Cohen’s d test prior to the July 18, 2013
    deadline. See Final I&D Memo at 41 n.156 (citing Circular Welded Carbon Steel Pipes
    and Tubes From Thailand, 
    78 Fed. Reg. 21,105
     (Dep’t Commerce Apr. 9, 2013)
    (preliminary results of antidumping duty administrative review; 2011-2012); Certain
    Activated Carbon From the People’s Republic of China, 
    78 Fed. Reg. 26,748
     (Dep’t
    Commerce May 8, 2013) (preliminary results of antidumping duty administrative review;
    2011-2012)). Thus, Respondents were given adequate notice to timely submit the factual
    information necessary to at least make its facial challenges to the analysis.
    Moreover, despite Plaintiffs’ position that Respondents needed information
    regarding the specific calculations in the differential pricing analysis in order to
    meaningfully comment, Respondents failed to request that Commerce extend the
    Court No. 14-00226                                                                 Page 56
    deadline for interested parties to submit factual information. See 
    id. at 41
    . Respondents
    had the opportunity to submit factual information challenging the Cohen’s d test in a timely
    fashion, at least for its general challenges to Commerce’s analysis, but failed to do so.
    Respondents’ sole opportunity to comment was not in its case brief as Plaintiffs claim.
    Lastly, Plaintiffs citation to Wuhu Fenglian Co. v. United States, 37 CIT __, 
    836 F. Supp. 2d 1398
     (2012), as support for its argument is inapposite. Plaintiffs argue that
    Wuhu stands for the proposition that “Commerce abuses its discretion if it does not allow
    a party to rebut information placed on the record by Commerce, even if there is no
    regulation requiring such a practice.” Pls.’ Mot. 45–46. In that case, Commerce had
    placed CBP data on the record and the court found it abused its discretion by not allowing
    parties to rebut that information simply because the regulations do not authorize
    interested parties to do so. However, CBP data used for the purposes of supplementing
    the record cannot be analogized with the issuance of preliminary results. Commerce
    does not place new factual information on the record through issuance of the preliminary
    results. Preliminary results embody Commerce’s preliminary findings after it considers
    the information that has been timely submitted and placed on the record. Thus, there
    was no new factual information for the Respondents to rebut. Commerce did not abuse
    its discretion when it rejected Respondents’ case brief for containing untimely filed factual
    information.
    Court No. 14-00226                                                           Page 57
    CONCLUSION
    For the reasons discussed above, the court determines that the final results are
    supported by substantial evidence and in accordance with law. Therefore, Plaintiffs’
    motion for judgment on the agency record is denied and the final results are sustained.
    Judgment will be entered accordingly.
    /s/ Claire R. Kelly
    Claire R. Kelly. Judge
    Dated:February 2, 2016
    New York, New York
    

Document Info

Docket Number: Slip Op. 16-9; Court 14-00226

Citation Numbers: 2016 CIT 9, 144 F. Supp. 3d 1308, 37 I.T.R.D. (BNA) 2747, 2016 Ct. Intl. Trade LEXIS 9

Judges: Kelly

Filed Date: 2/2/2016

Precedential Status: Precedential

Modified Date: 11/7/2024

Authorities (21)

Corus Staal BV v. United States Department of Commerce , 27 Ct. Int'l Trade 388 ( 2003 )

Timken Co. v. United States , 26 Ct. Int'l Trade 1072 ( 2002 )

Mid Continent Nail Corporation v. United States , 34 Ct. Int'l Trade 498 ( 2010 )

the-timken-company-plaintiff-cross-v-united-states-v-koyo-seiko-co , 354 F.3d 1334 ( 2004 )

Motor Vehicle Mfrs. Assn. of United States, Inc. v. State ... , 103 S. Ct. 2856 ( 1983 )

Chevron U. S. A. Inc. v. Natural Resources Defense Council, ... , 104 S. Ct. 2778 ( 1984 )

Corus Staal BV v. Department of Commerce , 17 A.L.R. Fed. 2d 703 ( 2005 )

Fujitsu General Limited v. United States , 88 F.3d 1034 ( 1996 )

Ceramica Regiomontana, S.A. And Industrias Intercontinental,... , 810 F.2d 1137 ( 1987 )

american-mining-congress-and-national-industrial-sand-association-v-mine , 995 F.2d 1106 ( 1993 )

Securities & Exchange Commission v. Chenery Corp. , 332 U.S. 194 ( 1947 )

Vermont Yankee Nuclear Power Corp. v. Natural Resources ... , 98 S. Ct. 1197 ( 1978 )

LaChance v. Erickson , 118 S. Ct. 753 ( 1998 )

Federal Communications Commission v. Fox Television ... , 129 S. Ct. 1800 ( 2009 )

Ceramica Regiomontanam, S.A. v. United States , 10 Ct. Int'l Trade 399 ( 1986 )

Nippon Steel Corp. v. United States International Trade ... , 494 F.3d 1371 ( 2007 )

Skf USA Inc. v. United States , 630 F.3d 1365 ( 2011 )

the-torrington-company-v-united-states-v-koyo-seiko-co-ltd-and-koyo , 82 F.3d 1039 ( 1996 )

Agro Dutch Industries Ltd. v. United States , 508 F.3d 1024 ( 2007 )

Huvis Corp. v. United States , 570 F.3d 1347 ( 2009 )

View All Authorities »