Marmen Inc. v. United States ( 2023 )

Slip Op. 23-
UNITED STATES COURT OF INTERNATIONAL TRADE
MARMEN INC., MARMEN
ÉNERGIE INC., and MARMEN
ENERGY CO.,
Plaintiffs,
and
WIND TOWER TRADE
COALITION,
Consolidated Plaintiff,
Before: Jennifer Choe-Groves, Judge
v.
Consol. Court No. 20-00169
UNITED STATES,
Defendant,
and
WIND TOWER TRADE
COALITION, MARMEN INC.,
MARMEN ÉNERGIE INC., and
MARMEN ENERGY CO.,
Defendant-Intervenors.
OPINION AND ORDER
[Sustaining the U.S. Department of Commerce’s remand redetermination in the
2018–2019 antidumping duty investigation of utility scale wind towers from
Canada.]
Consol. Court No. 20-00169 Page 2
Dated: March 20, 2023
Jay Charles Campbell, Allison Jessie Gartner Kepkay, and Ron Kendler, White &
Case, LLP, of Washington, D.C., for Plaintiffs and Defendant-Intervenors
Marmen, Inc., Marmen Energy Co., and Marmen Energie Inc.
Alan Hayden Price, Derick G. Holt, Elizabeth Seungyon Lee, John Allen Riggins,
Laura El-Sabaawi, Maureen Elizabeth Thorson, Robert Edward DeFrancesco, III,
Tessa Victoria Capeloto, and Theodore Paul Brackemyre, Wiley Rein, LLP, of
Washington, D.C., for Consolidated Plaintiff and Defendant-Intervenor Wind
Tower Trade Coalition.
Reginald T. Blades, Jr., Assistant Director, and Joshua Ethan Kurland, Senior Trial
Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of
Justice, of Washington, D.C., for Defendant United States. With them on the brief
were Brian M. Boynton, Principal Deputy Assistant Attorney General, and Patricia
M. McCarthy, Director. Of counsel on the brief was Jesus N. Saenz, Attorney,
Office of the Chief Counsel for Trade Enforcement and Compliance, U.S.
Department of Commerce.
Choe-Groves, Judge: Before the Court is the U.S. Department of
Commerce’s (“Commerce”) remand redetermination in the antidumping duty
investigation of utility scale wind towers from Canada, filed pursuant to the
Court’s Remand Order in Marmen Inc. v. United States (“Marmen I”), 45 CIT __,
545 F. Supp. 3d 1305 (2021). See Final Results of Redetermination Pursuant to
Court Remand (“Remand Redetermination”), ECF Nos. 61, 62; see also Utility
Scale Wind Towers from Canada (“Final Determination”), 85 Fed. Reg. 40,239(Dep’t of Commerce July 6, 2020) (final determination of sales at less than fair
Consol. Court No. 20-00169 Page 3
value and final negative determination of critical circumstances; 2018–2019),
accompanying Issues and Decision Mem. for the Final Affirmative Determination
in the Less-Than-Fair-Value Investigation of Utility Scale Wind Towers from
Canada, ECF No. 18-5 (June 29, 2020) (“Final IDM”).
In Marmen I, the Court remanded for Commerce to reconsider the rejection
of the cost reconciliation information of Plaintiffs Marmen Inc., Marmen Energy
Co., and Marmen Energie Inc. (collectively, “Marmen”) and Commerce’s use of
the differential pricing average-to-transaction (“A-to-T”) method to calculate
Marmen’s dumping margin. Marmen I, 45 CIT at __, 545 F. Supp. 3d at 1315–20.
On remand, Commerce reconsidered the additional cost reconciliation information
and the use of the Cohen’s d test in light of Stupp Corp. v. United States, 5 F.4th
1341 (Fed. Cir. 2021). See generally, Remand Redetermination. Marmen filed
comments in opposition to the Remand Redetermination. Pls.’ Comments Opp’n
Final Results of Redetermination Pursuant to Court Remand (“Pls.’ Cmts.”), ECF
Nos. 66, 67. Defendant United States (“Defendant”) responded to Plaintiffs’
Comments. Def.’s Resp. Pls.’ Comments Commerce’ Remand Redetermination
(“Def.’s Resp.”), ECF Nos. 70, 71 (superseded by ECF Nos. 79, 80). Defendant-
Intervenor Wind Tower Trade Coalition (“Defendant-Intervenor”) filed comments
in support of the Remand Redetermination. [Def.-Interv.’s] Comments Supp.
Consol. Court No. 20-00169 Page 4
Remand Redetermination (“Def.-Interv.’s Cmts.”), ECF Nos. 72, 73. For the
following reasons, the Court sustains the Remand Redetermination.
BACKGROUND
The Court presumes familiarity with the underlying facts and procedural
history of this case and recites the facts relevant to the Court’s review of the
Remand Redetermination. See Marmen I, 45 CIT at __, 545 F. Supp. 3d at 1311–
12. In August 2019, Commerce initiated an antidumping duty investigation into
wind towers from Canada for the period covering July 1, 2018 through June 30,
2019. Utility Scale Wind Towers from Canada, Indonesia, the Republic of Korea,
and the Socialist Republic of Vietnam, 84 Fed. Reg. 37,992, 37,992–93 (Dep’t of
Commerce Aug. 5, 2019) (initiation of less-than-fair-value investigations).
Commerce selected Marmen, Inc. and Marmen Energie Inc. as mandatory
respondents. See Decision Mem. for the Prelim. Determination in the Less-Than-
Fair-Value Investigation of Utility Scale Wind Towers from Canada (Feb. 4, 2020)
(“Prelim. DM”) at 1–2, PR 146.1 In the Final Determination, Commerce assigned
weighted-average dumping margins of 4.94 percent to Marmen, Inc. and Marmen
1
Citations to the administrative record reflect public record (“PR”) and public
remand record (“PRR”) document numbers filed in this case, ECF Nos. 46, 75.
Consol. Court No. 20-00169 Page 5
Energie Inc.2 Final Determination, 85 Fed. Reg. at 40,239. Commerce determined
the all-others weighted average dumping margin of 4.94 percent based on
Marmen’s dumping margin. Id.
In the Final Determination, Commerce determined that Marmen’s steel plate
costs did not reasonably reflect the costs associated with the production and sale of
the products and weight-averaged Marmen’s reported steel plate costs. Final IDM
at 4–6. Commerce rejected a portion of the supplemental cost reconciliation
information submitted by Marmen as untimely, unsolicited new information. Id. at
7–9. Commerce applied a differential pricing analysis using the Cohen’s d test and
determined that there was a pattern of export prices that differed significantly. Id.
at 10–11. As a result, Commerce calculated Marmen’s weighted-average dumping
margin by using the alternative average-to-transaction method. Id.
The Court remanded for Commerce to explain its use of the Cohen’s d test
in light of Stupp Corp. v. United States, 5 F.4th 1341 (Fed. Cir. 2021), and for
Commerce to further explain or consider Marmen’s supplemental cost
reconciliation information. Marmen I, 45 CIT at __, 545 F. Supp. 3d. at 1317–21.
2
The Court notes that, although Marmen Energy Co. was not included as a
mandatory respondent alongside Marmen, Inc. and Marmen Energie Inc.,
comments and questionnaire responses were submitted collectively by the three
Plaintiffs during Commerce’s investigation. The Court herein refers to their
assigned weighted-average dumping margins collectively as “Marmen’s dumping
margin.”
Consol. Court No. 20-00169 Page 6
On remand, Commerce accepted the previously rejected information from
Marmen. Remand Redetermination at 411. Commerce examined the additional
cost reconciliation information together with other information on the record, and
Commerce determined that the purported corrections were already reflected in
Marmen’s audited financial statements. Id. Commerce did not adjust Marmen’s
cost of manufacturing or cost of production. Id. Commerce also reconsidered the
differential pricing analysis and determined that the assumptions of normality and
roughly equal variances at issue in Stupp were not relevant to Commerce’s
application of the Cohen’s d test on remand. Id. at 1250.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(i) and 28
U.S.C. § 1581(c), which grant the Court authority to review actions contesting the
final determination in an antidumping duty investigation. The Court shall hold
unlawful any determination found to be unsupported by substantial evidence on the
record or otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).
The Court also reviews determinations made on remand for compliance with the
Court's remand order. Ad Hoc Shrimp Trade Action Comm. v. United States, 38
CIT __, __, 992 F. Supp. 2d 1285, 1290 (2014), aff'd, 802 F.3d 1339 (Fed. Cir.
2015).
Consol. Court No. 20-00169 Page 7
DISCUSSION
I. Commerce’s Rejection of Marmen’s Additional Cost
Reconciliation Information
In order to determine whether certain products are being sold at less than fair
value in the United States, Commerce compares the export price, or constructed
export price, with normal value. 19 U.S.C. § 1673. Export price and constructed
export price are the price at which the subject merchandise is being sold in the U.S.
market, while normal value is the price at which a “foreign like product” is sold in
the producer’s home market or in a comparable third-country market. Id.
§§ 1677a(a)–(b), 1677b(a)(1)(B). Before calculating a dumping margin,
Commerce must identify a suitable “foreign like product” with which to compare
the exported subject merchandise. See § 1677b(a)(1)(B). A “foreign like
product,” in order of preference, is:
(A) The subject merchandise and other merchandise which is
identical in physical characteristics with, and was produced in
the same country by the same person as, that merchandise.
(B) Merchandise —
(i) produced in the same country and by the same person as
the subject merchandise,
(ii) like that merchandise in component material or materials
and in the purposes for which used, and
(iii) approximately equal in commercial value to that
merchandise.
(C) Merchandise —
(i) produced in the same country and by the same person and
of the same general class or kind as the subject
merchandise,
Consol. Court No. 20-00169 Page 8
(ii) like that merchandise in the purposes for which used, and
(iii) which the administering authority determines may
reasonably be compared with that merchandise.
19 U.S.C. § 1677(16); NSK Ltd. v. United States, 26 CIT 650, 657–58, 217 F.
Supp. 2d 1291, 1299–1300 (2002).
When determining costs of production, 19 U.S.C. § 1677b states that:
costs shall normally be calculated based on the records of the exporter
or producer of the merchandise, if such records are kept in accordance
with the generally accepted accounting principles [“GAAP”] of the
exporting country (or the producing country, where appropriate) and
reasonably reflect the costs associated with the production and sale of
the merchandise.
19 U.S.C. § 1677b(f)(1)(A). The statute requires that “reported costs must
normally be used only if (1) they are based on the records . . . kept in accordance
with the GAAP and (2) reasonably reflect the costs of producing and selling the
merchandise.” See Dillinger France v. United States, 981 F.3d 1318, 1321 (Fed.
Cir. 2020) (emphasis in original) (internal quotation marks and citations omitted).
Commerce is not required to accept the exporter’s records. Thai Plastic Bags
Indus. Co. v. United States, 746 F.3d 1358, 1365 (Fed. Cir. 2014). Commerce may
reject a company’s records if it determines that accepting them would distort the
company’s true costs. See Am. Silicon Techs. v. United States, 261 F.3d 1371,
1377 (Fed. Cir. 2001). Commerce is directed to consider all available evidence on
the proper allocation of costs. 19 U.S.C. § 1677b(f)(1)(A). Physical characteristics
Consol. Court No. 20-00169 Page 9
are a prime consideration when Commerce conducts its analysis. Thai Plastic
Bags, 746 F.3d at 1368. If factors beyond the physical characteristics influence the
costs, however, Commerce will normally adjust the reported costs in order to
reflect the costs that are based only on the physical characteristics. See id.To determine whether the subject merchandise wind towers from Canada
were sold in the United States at less than fair value under section 733 of the Tariff
Act of 1930, Commerce first considered all products produced and sold by
Marmen in Canada during the period of investigation for the purpose of
determining the appropriate product comparisons to U.S. sales. Prelim. DM at 13.
Commerce determined that there were no sales of identical merchandise in the
ordinary course of trade in Canada that could be compared to U.S. sales. Id.Commerce did not dispute whether Marmen’s records were kept properly,
noting that “the record is clear that the reported costs are derived from the Marmen
Group’s normal books and records and that those books are in accordance with
Canadian GAAP.” Final IDM at 5; see also Marmen’s Utility Scale Wind Towers
from Canada: Response to Question 14.g of the Supplemental Section
Questionnaire (Dec. 13, 2019) at 2–4, PR 123–25. Commerce focused on the
second prong of 19 U.S.C. § 1677b(f)(1)(A), calling into question whether
Marmen reasonably reflected the costs of producing and selling the merchandise.
Final IDM at 5.
Consol. Court No. 20-00169 Page 10
In Marmen I, this Court remanded for Commerce to reconsider the rejection
of Plaintiffs’ cost reconciliation information. Marmen I, 45 CIT at __, 545 F.
Supp. 3d at 1315–17. On remand, Commerce accepted and reconsidered
Marmen’s cost reconciliation information that Commerce had previously rejected.
See Remand Redetermination at 4–11. Commerce explained that on remand it
evaluated the information provided by Plaintiffs and determined that one portion of
the information should be rejected because the information adjusted for amounts
already accounted for in the costs that were reported to Commerce. Id. Commerce
determined that Plaintiffs’ overall cost reconciliation difference remained
outstanding and attributed the amount to Marmen’s cost of production. Id.
Defendant-Intervenor supports Commerce’s determination. See Def.-Interv.’s
Cmts. at 10–16.
Marmen argues that Commerce’s rejection of the information was
unreasonable because the information was a “minor correction to Marmen Inc.’s
cost reconciliation worksheet based on incorrect and confused claims that are
unsupportable.” Pls.’ Cmts. at 2. Marmen challenges Commerce’s
characterization that the information would double count an exchange rate
adjustment already reflected in the audited cost of goods sold and reported cost of
production. Id.
Consol. Court No. 20-00169 Page 11
A party may submit factual information to rebut, clarify, or correct
questionnaire responses. 19 C.F.R. § 351.301(c). The regulations state that
[i]f the factual information is being submitted to rebut, clarify, or
correct factual information on the record, the submitter must provide a
written explanation identifying the information which is already on the
record that the factual information seeks to rebut, clarify, or correct,
including the name of the interested party that submitted the
information and the date on which the information was submitted.
Id. § 351.301(b)(2).
Commerce has a duty “to determine dumping margins as accurately as
possible.” See NTN Bearing Corp. v. United States, 74 F.3d 1204, 1208 (Fed. Cir.
1995) (internal quotation marks and citation omitted). “[A]ntidumping laws are
remedial not punitive.” Id. (citation omitted). The U.S. Court of Appeals for the
Federal Circuit (“CAFC”) has stated that “Commerce is obliged to correct any
errors in its calculations during the preliminary results stage to avoid an imposition
of unjustified duties.” Fischer S.A. Comercio, Industria & Agricultura v. United
States, 471 Fed. App’x 892, 895 (Fed. Cir. 2012) (citation omitted). Further,
“Commerce is free to correct any type of importer error—clerical, methodology,
substantive, or one in judgment—in the context of making an antidumping duty
determination, provided that the importer seeks correction before Commerce issues
its final results and adequately proves the need for the requested corrections.”
Timken United States Corp. v. United States (“Timken”), 434 F.3d 1345, 1353
Consol. Court No. 20-00169 Page 12
(Fed. Cir. 2006). The Court reviews whether Commerce abused its discretion
when rejecting submitted information. See Papierfabrik August Koehler SE v.
United States, 843 F.3d 1373, 1384 (Fed. Cir 2016) (“Commerce abused its
discretion in refusing to accept updated data when there was plenty of time for
Commerce to verify or consider it.”) (citations omitted). When reviewing
Commerce’s determination to reject corrective information, this Court may
consider factors such as Commerce’s interest in ensuring finality, the burden of
incorporating the information, and whether the information will increase the
accuracy of the calculated dumping margins. Bosun Tools Co. v. United States, 43
CIT __, __, 405 F. Supp. 3d 1359, 1365 (2019) (citations omitted).
On remand, Commerce accepted and considered the numerous revisions
presented by Marmen. Remand Redetermination at 4–11, 38–46. Marmen argues
that the information submitted consisted of minor corrections and not new
information. See Pls.’ Cmts. at 2. Commerce agreed that several of the revised
reconciliations were “minor errors,” such as cell formatting errors and other small
clerical errors, which Commerce accepted because they did not alter the data
presented in the audited financial statements. Remand Redetermination at 6–7.
Commerce stated in the Remand Redetermination, however, that “there was one
non-clerical revision that Marmen explained it found while reviewing its records
for purposes of preparing the revised cost reconciliations. This revision resulted
Consol. Court No. 20-00169 Page 13
from an alleged discovery of certain expenses that Marmen claims were not
converted from [U.S. dollars] to [Canadian dollars].” Id. at 7 (citing Marmen’s
Utility Scale Wind Towers from Canada: Second Supp. Section D Resp. (Feb. 7,
2020) (“Marmen’s Second Supplemental Section D Response”) at 14, PR 151–54).
Commerce determined that:
In short, the increase to the [cost of manufacturing] (i.e., the increase in
the unreconciled difference) driven by the restatement of the audited
financial statements was offset by this new change to Marmen’s cost
reconciliation. According to Marmen, this new reconciling item
represents non-booked exchange losses that Marmen Inc. incurred on
purchases of wind tower sections from affiliate Marmen Energie. This
explanation is parallel to the adjusting entry to restate Marmen Inc.’s
other purchases to the [Canadian dollar] equivalent values, as discussed
above, as an auditor amendment to the financial statements.
Id. (citing Marmen’s Utility Scale Wind Towers from Canada: Request for
Additional Information Concerning Second Supp. Section D Resp. (Dec. 8, 2021)
(“Marmen’s Second Supplemental Remand Section D Response”) at Attachment
1), PRR 2. Commerce rejected Marmen’s cost reconciliation information because
“Marmen did not further explain how, if at all, this error and correction related to
the restated financial statements, or whether it was one of the adjustments brought
up by the external auditor, Deloitte. The record does not provide any actual
support that this new change is required, nor that it is not already accounted for
within Marmen’s normal books.” Id.
Consol. Court No. 20-00169 Page 14
Defendant asserts that the new cost reconciliation information had the effect
of duplicating the adjustments for exchange gains and losses already reflected in
Marmen’s financial statements. Def.’s Resp. at 24. Defendant contends that
Commerce correctly determined that the information in the cost reconciliation
spreadsheet, viewed in conjunction with Marmen’s representations regarding its
auditor’s adjustments, indicated that Marmen’s auditor had already made any
necessary adjustment in restating Marmen’s financial statements that produced the
cost of goods sold figure used in the reconciliation. Id.
In support of its determination that the new cost reconciliation information
was already accounted for in Marmen’s costs, Commerce cited record evidence
comparing an Excel spreadsheet in the Supplemental Remand Section D Response
at Attachment 1 with Marmen’s Initial Section D Response at pages D-15 and D-
33 and Exhibit D-3.3 Remand Redetermination at 8–9; see Marmen’s Second
Supplemental Remand Section D Response at Attachment 1; Marmen’s Utility
Scale Wind Towers from Canada: Sections B, C, and D Response (Oct. 11, 2019)
3
Exhibit D-3 to Marmen’s Initial Section D Response is not included in the record
before the Court. Exhibit Supp. D-3 to Marmen’s December 6, 2019 Supplemental
Section D Response appears to correspond to the information referenced by
Commerce in the Remand Redetermination. See Marmen’s Utility Scale Wind
Towers from Canada: Supplemental Section D Response (Dec. 6, 2019)
(“Marmen’s December 6, 2019 Supplemental Section D Response”) at Ex. Supp.
D-3, PR 114–19.
Consol. Court No. 20-00169 Page 15
(“Marmen’s Initial Section D Response”) at D-15, D-33, PR 89–97; Marmen’s
Utility Scale Wind Towers from Canada: Supplemental Section D Response (Dec.
6, 2019) (“Marmen’s December 6, 2019 Supplemental Section D Response”) at
Ex. Supp. D-3, PR 114–19. Marmen’s Initial Section D Response reviewed by
Commerce shows that Marmen recorded amounts in its normal books and records
in its home currency of Canadian dollars using an alternative exchange rate.
Remand Redetermination at 8–9 (citing Marmen’s Initial Section D Response at
Exhibit D-3). Citing Marmen’s Initial Section D Response at page D-15, for
example, Commerce determined that for purchases in U.S. dollars, Marmen
reported that its normal books reflected a cost system conversion from U.S. dollar
purchases to Canadian dollars at specific conversion rates. Id. at 8–9. Commerce
cited Marmen’s December 6, 2019 Supplemental D Response at D-17 and D-18 to
support its determination that Marmen’s auditors periodically adjusted the already
converted purchases, and that in preparing Marmen’s original 2018 audited
financial statements, the auditors had already made adjustments to reflect actual
exchange rates during 2018. Id. at 9; see Marmen’s December 6, 2019
Supplemental Section D Response at D-17–D-18. Based on its review of these
record documents, Commerce determined that Marmen’s prior statements and
reported calculations established that the exchange gains and losses were already
accounted for in Marmen’s costs. Remand Redetermination at 9, 38–46. Thus,
Consol. Court No. 20-00169 Page 16
Commerce determined that “the record evidence thereby demonstrates that the
reported costs, including those of the sections purchased from Marmen Energie,
were, in fact, already correctly inclusive of exchange rate differences, and it would
be inappropriate to adjust them again for those exchange gains and losses.” Id. at
11.
Because record evidence, including Marmen’s Initial Section D Response
with exhibits, Marmen’s December 6, 2019 Supplemental Section D Response
with exhibits, and Marmen’s Second Supplemental Remand Section D Response at
Attachment 1, shows that Marmen’s auditors already adjusted the reported costs to
account for exchange rate differences, the Court concludes that Commerce’s
determination that another adjustment would be inappropriate is supported by
substantial evidence. The Court holds that Commerce did not abuse its discretion
by rejecting Marmen’s proposed corrective information, recognizing that
Commerce has an interest in ensuring finality and increasing the accuracy of the
calculated dumping margins. Bosun Tools, 43 CIT at __, 405 F. Supp. 3d at 1365.
II. Commerce’s Use of the Cohen’s d Test
In Stupp, the CAFC directed the Court to remand Commerce’s use of the
Cohen’s d test for further explanation because the data Commerce used may have
violated the assumptions of normality, sufficient observation size, and roughly
equal variances. 5 F.4th at 1357–60. Before the CAFC, Commerce argued that
Consol. Court No. 20-00169 Page 17
concerns of normality and population were misplaced because, unlike sampling
data used in determining probability or statistical significance, Commerce’s review
considered a complete universe of data. Id. at 1359–60. The CAFC expressed
concern with Commerce’s explanation because it failed to “address the fact that
Professor Cohen derived his interpretive cutoffs under the assumption of
normality.” Id. at 1360.
On remand, Commerce reconsidered the use of the Cohen’s d test in light of
Stupp as this Court directed in Marmen I. See Remand Redetermination at 12–37,
46–50; Marmen I, 45 CIT at __, 545 F. Supp. 3d at 1320. The standard of review
for considering Commerce’s differential pricing analysis is reasonableness. Stupp,
5 F.4th at 1353. The CAFC and the U.S. Court of International Trade have held
the steps underlying the differential pricing analysis as applied by Commerce to be
reasonable. See e.g., Mid Continent Steel & Wire, Inc. v. United States, 940 F.3d
662, 670–74 (Fed. Cir. 2019) (discussing zeroing and the 0.8 threshold for the
Cohen’s d test); Apex Frozen Foods Priv. Ltd. v. United States, 40 CIT __, __, 144
F. Supp. 3d 1308, 1314–37 (2016) (discussing application of the A-to-T method,
the Cohen’s d test, the meaningful difference analysis, zeroing, and the “mixed
comparison methodology” of applying the A-to-A method and the A-to-T method
when 33–66% of a respondent’s sales pass the Cohen’s d test), aff’d, 862 F.3d
1337 (Fed. Cir. 2017); Apex Frozen Foods Priv. Ltd. v. United States, 862 F.3d
Consol. Court No. 20-00169 Page 18
1322, 1330–34 (Fed. Cir. 2017) (affirming zeroing and the 0.5% de minimis
threshold in the meaningful difference test); Stupp Corp. v. United States, 47 CIT
__, __, 2023 WL 2206548, at *6–10 (2023) (discussing the reasonableness of the
Cohen’s d test as one component of Commerce’s differential pricing analysis).
However, the CAFC has stated that “there are significant concerns relating to
Commerce’s application of the Cohen’s d test . . . in adjudications in which the
data groups being compared are small, are not normally distributed, and have
disparate variances.” Stupp, 5 F.4th at 1357.
The Cohen’s d test is “a generally recognized statistical measure of the
extent of the difference between the mean of a test group and the mean of a
comparison group.” Apex Frozen Foods, 862 F.3d at 1342 n.2. The Cohen’s d test
relies on assumptions that the data groups being compared are normal, have equal
variability, and are equally numerous. See Stupp, 5 F.4th at 1357. Applying the
Cohen’s d test to data that do not meet these assumptions can result in “serious
flaws in interpreting the resulting parameter.” See id. at 1358.
Commerce determined on remand that “the assumptions of normality and
roughly equal variances” are not relevant to Commerce’s application of the
Cohen’s d test. Remand Redetermination at 18. Commerce explained that its
dumping analysis in this case assessed the pricing behavior of Marmen in the entire
United States market, stating:
Consol. Court No. 20-00169 Page 19
The U.S. sale price data on which this analysis is based constitute the
entire population of sales data and are not a sample of a respondent’s
sales data (i.e., the data are for all sales in the United States of subject
merchandise by a company during the period of investigation or
review). The basis for this analysis is the respondent’s U.S. sales of the
subject merchandise for a given period of time. By definition, these
U.S. sales comprise the universe of sales on which the respondent’s
weighted-average dumping margin depends. The Differential Pricing
Analysis examines all sales to determine whether the A-to-A method is
the appropriate approach on which to base this calculation. Therefore,
in the context of the calculation of the weighted-average dumping
margin, the data used are not a sample, but rather constitute the entire
population of a respondent’s sales of subject merchandise during the
period under examination for the calculation of the weighted-average
dumping margin.
Id. at 22.
Commerce determined on remand that the statistical criteria, such as the
number of observations, a normal distribution, and approximately equal variances,
are related to the statistical significance of sampled data and establish the
reliability of an estimated parameter based on the sample data. Id. at 23.
Commerce explained further that:
However, for the Cohen’s d test applied in the context of the
Differential Pricing Analysis, there is no estimation of the parameters
(i.e., mean, standard deviation, and effect size) of the test group or of
the comparison group as the calculation of these parameters is based on
the complete universe of sale prices to the test and comparison groups.
Unlike with a sample of data where the estimated parameters will
change with each sample selected from a population, each time these
parameters would be calculated as part of Commerce’s Cohen’s d test,
the exact same results would be found because the calculated
parameters are the parameters of the entire population and not an
estimate of the parameters based on a sample. Accordingly, the means,
Consol. Court No. 20-00169 Page 20
standard deviations, and Cohen’s d coefficients calculated are not
estimates with confidence levels or sampling errors as would be
associated with sampled data, but, rather, are the actual values which
describe a company’s pricing behavior. Consequently, the statistical
significance of the results of the Cohen’s d test is not relevant in
Commerce’s application of the differential pricing analysis, which
measures practical significance.
Id. at 23–24. Commerce determined, therefore, that:
[i]n Commerce’s application of the Cohen’s d test, such additional
analysis is not relevant because the data in both the test group and the
comparison group use the full population of sales in each group and are
not determined based on controlled random and independent samples
of the population. Rather, the results of the Cohen’s d test are based on
the entire population of sale price data for comparable merchandise for
the test and comparison groups.
Id. at 26.
The Court concludes that Commerce’s use of a population, rather than a
sample, in the application of the Cohen’s d test sufficiently negates the
questionable assumptions about thresholds that were raised in Stupp. Based on
Commerce’s explanation, this Court concludes that Commerce’s application of the
Cohen’s d test to determine whether there was a significant pattern of differences
was reasonable because Commerce applied the Cohen’s d test to a population
rather than a sample. Because Commerce adequately explained how its
methodology is reasonable, the Court holds that Commerce’s use of the Cohen’s d
test applied as a component of its differential pricing analysis is in accordance with
law.
Consol. Court No. 20-00169 Page 21
CONCLUSION
For the foregoing reasons, Commerce’s remand results are supported by
substantial evidence, are in accordance with law, and comply with the Court’s
Order, Oct. 22, 2021, ECF No. 51, and are therefore sustained. Judgment will
enter accordingly.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: March 20, 2023
New York, New York