Xi'an Metals & Minerals Import & Export Co., Ltd. v. United States

Slip Op. 17 - 120
UNITED STATES COURT OF INTERNATIONAL TRADE
- - - - - - - - - - - - - - - - - - - - x 	Senior Judge Aquilino
XI’AN METALS & MINERALS IMPORT & EXPORT :
CO., LTD.,
Plaintiff, 	:
-and- 	:
THE STANLEY WORKS (LANGFANG) FASTENING 	:
SYSTEMS CO., LTD. and STANLEY BLACK AND
DECKER, INC., 	:
Consolidated-Plaintiffs, 	: 	Consolidated
Court No. 15-00109
v. 	:
UNITED STATES, 	:
Defendant,
-and- 	:
MID CONTINENT STEEL & WIRE, INC., 	:
Intervenor-Defendant. 	:
- - - - - - - - - - - - - - - - - - - - x
Opinion & Order
[Plaintiff motions for judgment on the agency record,
contesting surrogate-value determinations based thereon,
granted in part; remanded to the International Trade
Administration.]
Dated: September 6, 2017
Gregory S. Menegaz, J. Kevin Horgan, Alexandra H. Salzman, and
John J. Kenkel, deKieffer & Horgan, PLLC, Washington, D.C., for the
plaintiff.
Lawrence J. Bogard and Peter J. Bogard, Neville Peterson LLP,
Washington, D.C., for the consolidated-plaintiffs.
Sosun Bae, Trial Attorney, Commercial Litigation Branch, Civil
Division, 	U.S. 	Department 	of 	Justice, 	Washington, 	D.C., 	for 	the
defendant. 	Also on the papers Benjamin C. Mizer, Principal Deputy
Assistant 	Attorney 	General, 	Jeanne 	E. 	Davidson, 	Director, 	and
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Patricia 	M. 	McCarthy, 	Assistant 	Director; 	Zachary 	Simmons,
Attorney, 	Office 	of 	the 	Chief 	Counsel 	for 	Trade 	Enforcement 	&
Compliance, U.S. Department of Commerce, of counsel.
Adam 	H. 	Gordon 	and 	Ping 	Gong, 	The 	Bristol 	Group 	PLLC,
Washington, D.C., for the intervenor-defendant.
AQUILINO, 	Senior 	Judge: 	At 	bar 	are 	consolidated
complaints invoking 19 U.S.C. §§ 1516a(a)(2)(A)(i)(I) and (B)(iii)
and 	28 	U.S.C. 	§1581¥c¦ 	jurisdiction 	over 	the 	final 	results 	of 	the
fifth administrative review (“AR5”) of its antidumping-duty order
covering 	certain 	steel 	nails 	from 	the 	People’s 	Republic 	of 	China
(“PRC”) published by the U.S. Department of Commerce, International
Trade Administration (“ITA”) sub nom. 	Certain Steel Nails from the
PRC, 80 Fed.Reg. 18816 (April 8, 2015), PDoc 294. 	See accompanying
final 	issues 	and 	decision 	memorandum 	(“IDM”), 	PDoc 	276, 	covering
the period of August 1, 2012 through July 31, 2013.
Moving 	for 	judgment 	on 	the 	resultant 	administrative
record 	of 	AR5, 	plaintiff 	Xi’an 	Metals 	& 	Minerals 	Import 	& 	Export
Co., 	Ltd. 	raises 	four 	issues: 	(1) 	the 	suitability 	of 	Thailand 	as
the 	primary 	surrogate 	country, 	(2) 	valuation 	of 	its
brokerage/handling (“B&H”) and freight costs, (3) adjustment of the
weight denominator used in calculating its inland freight and B&H
costs, 	and 	(4) 	double 	counting 	of 	SG&A 	(selling, 	general, 	and
administrative) labor expenses in the labor rate used.
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Also 	moving 	for 	judgment 	pursuant 	to 	USCIT 	Rule 	56.2,
consolidated-plaintiffs 	The 	Stanley 	Works 	(Langfang) 	Fastening
Systems Co., Ltd. and Stanley Black & Decker, Inc. press one minor
issue 	and 	a 	much 	broader 	matter 	for 	relief: 	(5) 	correction 	of 	a
“transcription 	error” 	in 	their 	factors-of-production 	(“FOP”)
database and (6) various challenges to ITA’s “differential pricing”
analysis.
Judicial review of AR5 is governed by the applicable law
and 	by 	the 	substantial 	evidence 	of 	record, 	which 	has 	long 	been
defined 	as 	“such 	relevant 	evidence 	as 	a 	reasonable 	mind 	might
accept as adequate to support a conclusion.” 	Consol. Edison Co. v.
NLRB, 305 U.S. 197, 229 (1938). 	See 19 U.S.C. §1516a(b)(l)(B)(i).
I
The 	antidumping-duty 	statute 	requires 	the 	ITA 	to 	seek
surrogate values (“SVs”) for the factors of production for subject
merchandise 	produced 	in 	or 	exported 	from 	a 	non-market 	economy
(“NME”) 	country. 	19 	U.S.C. 	§1677b(c)(1). 	The 	agency 	selected
Xi’an Metals and the Stanley firms as AR5’s mandatory respondents.
It sent antidumping questionnaires to them, to which they responded
in a timely manner. 	ITA circulated a letter to interested parties
inviting 	comments 	on 	surrogate 	country 	selection 	and 	SV 	data, 	to
which 	it 	received 	comments 	and 	rebuttal 	comments. 	It 	thereafter
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issued 	supplemental 	questionnaires 	to 	which 	Xi’an 	Metals 	and
Stanley also timely responded.
ITA 	published 	notice 	of 	the 	preliminary 	results 	of 	AR5
sub nom. 	Certain Steel Nails from the People’s Republic of China,
79 	Fed.Reg. 	58744 	(Sept. 	30, 	2014), 	PDoc 	304. 	See 	accompanying
preliminary decision memorandum (“PDM”), PDoc 224. 	Employing its
differential pricing analysis, the agency preliminarily calculated
a weighted-average dumping margin of 6.69 percent for Stanley and
72.40 	percent 	for 	Xi’an 	Metals. 	As 	part 	of 	its 	analysis, 	ITA
concluded that there was a pattern of export prices for comparable
merchandise that differed significantly among purchasers, regions,
or time periods. 	See id. at 17-18. 	For Stanley, it found that the
average-to-average 	(“A-A”) 	methodology 	did 	not 	appropriately
account for such differences and applied the average-to-transaction
(“A-T”) methodology to some Stanley U.S. sales and applied A-A to
its 	other 	United 	States 	sales 	(reflecting 	a 	“mixed” 	alternative
methodology). See id. 	For Xi’an Metals, ITA concluded that the A-A
methodology 	appropriately 	accounted 	for 	such 	differences 	and
applied 	it 	to 	calculate 	that 	firm’s 	weighted-average 	dumping
margin. 	See id. at 18. 	The agency also selected Thailand as the
primary surrogate country for FOP valuation and surrogate financial
ratios in constructing normal value. 	See PDoc 226.
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During 	the 	course 	of 	its 	verification 	of 	the 	Stanley
United 	States 	sales 	database 	and 	FOP, 	ITA 	accepted 	minor
corrections that were brought to its attention. 	In February 2015,
the 	agency 	requested 	that 	Stanley 	submit 	new 	sales 	and 	FOP
databases 	to 	reflect 	the 	corrections 	that 	were 	revealed 	during
verification. 	PDoc 	257. 	Stanley 	did 	so 	timely. 	Whereafter 	ITA
disclosed 	to 	the 	parties 	its 	calculations 	for 	AR5. 	On 	April 	7,
2015, ITA received a ministerial error allegation from Stanley that
urged the agency to correct a transcription error that Stanley had
made in its revised FOP database. 	ITA declined to do so.
The AR5 final results were published the next day. 	Based
on the differential pricing analysis and the use of Thai SV data,
ITA calculated a weighted-average dumping margin of 13.19 percent
for Stanley and 72.52 percent for Xi’an Metals. 	In those results,
the agency used the consolidated customer code (field CCUSCODU) in
the 	Stanley 	margin 	program 	after 	determining 	that 	the 	use 	of
individual 	customer 	codes 	(field 	CUSCODU) 	for 	the 	Preliminary
Results 	had 	been 	erroneous. 	See 	IDM 	at 	45-46. 	This 	correction
altered the results of the differential pricing analysis, leading
ITA to apply the A-T methodology to all of the Stanley U.S. sales.
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II
For 	its 	AR5 	final 	results, 	ITA 	continued 	to 	select
Thailand as the primary surrogate country. 	Plaintiff Xi’an argues
the 	substantial 	evidence 	of 	record 	shows 	that 	that 	country 	is
unsuitable 	as 	a 	surrogate 	in 	this 	case, 	that 	the 	Thai 	steel 	wire
rod values are aberrant, and that either the Philippines or Ukraine
is a superior primary surrogate country for valuing FOP.
A
Plaintiff Xi’an argues reports compiled by the U.S. Trade
Representative 	in 	2011, 	2012 	and 	2013, 	the 	U.S. 	Department 	of
Commerce, 	and 	FedEx 	International 	Resource 	Center 	all 	constitute
substantial evidence of record showing that Thai customs officials
routinely 	manipulate 	the 	entered 	values 	of 	imported 	merchandise,
that 	such 	manipulation 	is 	pervasive 	across 	all 	sectors, 	and 	that
therefore 	the 	Thai 	import 	data 	are 	tainted. 	Plaintiff 	Xi’an
further 	argues 	that 	the 	average 	Thai 	import 	price 	for 	steel 	wire
rod (“SWR”) during the POR of $916 per metric ton is not only the
highest SWR price of record but exceeds “by far” the benchmarks it
provided therefor. 	Xi’an’s benchmarks included SWR data from the
World 	Bank 	Global 	Economic 	Monitor 	(“GEM”), 	world 	steel 	prices
published 	by 	MEPS 	(International) 	Ltd., 	MEPS 	Asian 	Market 	SWR
prices, 	official 	Thai 	domestic 	steel 	prices, 	SWR 	prices 	for 	Thai
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domestic 	and 	export 	sales 	from 	TATA 	Steel, 	“UN 	Comtrade” 	(i.e.,
United 	Nations 	International 	Trade 	Statistics 	Database) 	import
prices 	for 	other 	countries 	at 	a 	comparable 	level 	of 	economic
development as the PRC (including the Philippines and Ukraine), and
world market prices published by Asian Metal and Metal Expert.
The AR5 final results explain that, in order to value an
input 	accurately, 	ITA 	examines 	all 	relevant 	price 	information 	on
the record, including any appropriate benchmark data; that in any
given 	case 	the 	agency’s 	current 	practice 	is 	to 	examine 	available
import data for potential surrogate countries and/or data from the
same HTS category for the surrogate country over multiple years to
determine 	if 	the 	current 	data 	appear 	aberrational 	compared 	to
historical values; and that the existence of higher prices alone is
not 	a 	sufficient 	basis 	for 	concluding 	that 	the 	price 	data 	for 	a
particular 	SV 	are 	distorted 	or 	misrepresentative. 	On 	the 	record
for AR5, ITA concluded that none of the datasets suggested by Xi’an
Metals serve as reliable benchmark data to determine whether Thai
wire rod import data are aberrational1 , and that Xi-an Metals’ HTS
1 	Specifically, ITA concluded: that the World Bank GEM data
on 	the 	record 	are 	unclear 	as 	to 	which 	countries 	(which 	could
include NME countries) were used to calculate the steel rod prices,
but more critically do not make any distinction for carbon content,
(continued...)
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data analysis, submitted to support concluding that the Thai import
data for SWR are distorted and should be disregarded because they
are 	higher 	than 	export 	prices, 	does 	not 	permit 	“an 	appropriate
comparison 	in 	order 	to 	determine 	if 	the 	data 	[are] 	aberrational”
because 	Xi’an’s 	analysis 	is 	at 	the 	six-digit 	HTS 	level 	and 	“does
not include any of the 11-digit HTS categories used to value wire
rod at the Preliminary Results”. 	IDM at 16.
Plaintiff Xi’an contends defendant’s reasoning conflates
the 	use 	of 	such 	benchmarks 	to 	evaluate 	the 	suitability 	of 	the
average 	Thai 	import 	price 	with 	using 	such 	benchmarks 	as 	SVs 	in
their 	own 	right; 	that 	the 	defensive 	responses2 	of 	it 	and 	the
intervenor-defendant 	do 	nothing 	to 	dispel 	such 	“serious
1 	(...continued)
which is one of the most important physical characteristics of that
input; that the “MEPS data suffer[ ] from similar deficiencies” in
that none of the countries covered thereby are at the same level of
economic development as the PRC nor do the data distinguish carbon
content; and that none of the countries covered by the Asia Metal
Market 	prices 	are 	potential 	surrogate 	countries 	meeting 	ITA’s
surrogate country criteria. 	See IDM at 15-16.
2 	To wit: that the reports cited by Xi’an Metals refer only
to general concerns about certain practices by Thailand’s Customs
Department 	and 	fail 	to 	address 	the 	specific 	raw 	material 	inputs
consumed 	by 	respondents 	in 	this 	case; 	that 	the 	Thai 	SWR 	import
values 	on 	which 	ITA 	relied 	cannot 	be 	concluded 	aberrant, 	as 	the
existence of higher prices alone does not necessarily indicate that
price 	data 	are 	distorted 	or 	misrepresentative; 	and 	that 	Xi’an
Metals fails to identify record evidence that materially undermines
the integrity of the SWR values upon which ITA relied.
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deficiencies” in ITA’s choice of Thailand as the primary surrogate
country; that because the defendant and ITA acknowledge that Thai
customs 	officials 	arbitrarily 	increase 	some 	import 	values 	the
record 	evidence 	provides 	reason 	to 	believe 	or 	suspect 	that 	the
import 	values 	of 	the 	inputs 	used 	as 	SVs 	for 	Xi-an 	Metals’ 	inputs
were 	manipulated; 	and 	that 	defendant’s 	claim 	that 	the 	agency
“believe 	or 	suspect” 	analysis 	“hinges 	on 	specific 	and 	objective
evidence on which [ITA] would rely in determining that a country’s
surrogate value data were unreliable” is not supported in practice.
Assuming 	the 	correctness 	of 	its 	foregoing 	position,
plaintiff 	Xi’an 	argues 	that 	either 	the 	Philippines 	or 	Ukraine 	is
superior 	to 	Thailand 	as 	a 	primary 	surrogate 	country 	in 	this 	case
since the data for neither are tainted by manipulation of entered
values 	for 	imported 	merchandise. 	The 	plaintiff 	contends 	the
Ukrainian 	SWR 	prices 	from 	Metal 	Expert 	in 	particular 	are 	more
specific than the Thai values as to the diameters of the SWR, and
ITA 	has 	used 	that 	source 	for 	SWR 	in 	past 	reviews. 	And 	plaintiff
Xi’an complains that the defendant does not back up its “fall back”
argument 	that 	ITA 	“is 	not 	required 	to 	consider 	or 	give 	weight 	to
any 	particular 	criteria 	in 	determining 	what 	constitutes 	the 	best
available 	information 	on 	the 	record” 	for 	SVs 	with 	reference 	to
substantial 	evidence 	when 	the 	agency 	emphasizes 	certain 	criteria
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and “completely ignores” other data quality criteria. 	XM Reply at
9, referencing Gerald Metals, Inc. v. United States, 132 F.3d 716,
720 (Fed.Cir. 1997) (substantial evidence standard “requires more
than mere assertion of ‘evidence which in and of itself justified
[the 	. 	. 	. 	determination], 	without 	taking 	into 	account
contradictory 	evidence 	or 	evidence 	from 	which 	conflicting
inferences 	would 	be 	drawn’”, 	quoting 	Universal 	Camera 	Corp. 	v.
NLRB, 340 U.S. 474, 487 (1951)).
The question, as always, is whether substantial evidence
of record supports ITA determination(s). 	This court is unpersuaded
herein that it does not, or that the agency has not considered all
available 	evidence. 	Defendant’s 	logic 	is 	weak 	at 	points 3 , 	but
ITA’s determination has substantial support on the record, and in
toto, plaintiff Xi-an essentially asks for substitution of judgment
for that of the agency, a request in conflict with the teaching of
Consolo 	v. 	Fed. 	Mar. 	Comm’n, 	383 	U.S. 	607, 	619-20 	(1966). 	See,
3 	Plaintiff 	Xi’an 	argues, 	for 	example, that defendant’s
contention that Ukraine’s Metal Expert prices are unusable because
they do not satisfy ITA’s criteria of being exclusive of taxes and
duties 	is 	disingenuous 	when 	the 	defendant 	states 	in 	a 	previous
sentence that the Metal Expert prices are actual transactions that
include 	20% 	VAT 	and 	a 	4% 	mark-up 	charged 	to 	intermediate 	traders
who 	buy 	the 	material 	from 	domestic 	producers 	and 	sell 	to
warehouses, and the calculation of the price free of such taxes and
duties is a simple mathematical computation which ITA has performed
in the past.
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e.g., Matsushita Elec. Indus. Co. v. United States, 750 F.2d 927,
933 (Fed.Cir. 1984) (“the possibility of drawing two inconsistent
conclusions 	from 	the 	same 	evidence 	does 	not 	prevent 	an
administrative agency’s finding from being supported by substantial
evidence”) (quoting same). 	Cf. Elkay Manufacturing Co. v. United
States, 40 CIT ___, ___, 180 F.Supp.3d 1245, 1255 (2016) (“record
evidence of manipulation of [Thai] customs values does not rise to
such 	a 	level 	that 	[ITA] 	was 	left 	with 	no 	choice 	but 	to 	foreclose
any use of Thai import data to determine [an SV] for a production
input”), appeal filed, No. 16-2637 (Fed.Cir. Sept. 14, 2016).
B
Plaintiff 	Xi’an 	also 	argues 	that 	a 	military 	coup 	in
Thailand 	should 	have 	triggered 	a 	“reason 	to 	believe 	or 	suspect”
standard 	of 	pricing 	distortion 	in 	that 	country’s 	economy. 	It
placed 	43 	pages 	of 	articles 	on 	the 	record 	detailing 	the 	massive
political unrest and protests that rocked Thailand between 2011 and
2014, 	culminating 	in 	military-controlled 	government. 	The 	review
period 	(“POR”) 	at 	issue 	in 	this 	appeal 	is 	August 	1, 	2012 	through
July 	31, 	2013. 	The 	plaintiff 	claims 	the 	materials 	covering
Thailand’s political and economic turbulence attest that the 2011
elections were never accepted as legitimate, that the military coup
was an undemocratic and complete takeover of the country, and that
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it was reasonable to conclude that a free-market economy could not
properly function in the absence of the free flow of information or
impartial rule of law. 	Plaintiff Xi’an argues the issue should be
remanded for ITA to explain how the military coup does not meet the
lenient 	“reason 	to 	believe 	or 	suspect” 	standard, 	because 	it 	is
counter-intuitive, 	if 	not 	hypocritical, 	that 	the 	agency 	would
reject the PRC economy based on state control but then select the
an 	alternative 	country 	under 	military 	dominance 	as 	the
“free-market” 	surrogate 	for 	the 	PRC 	where 	“better” 	alternative
countries 	were 	presented 	on 	the 	record 	for 	which 	no 	such
distortions were alleged.
The burden is on the plaintiff, however, to provide for
the record evidence to support its argument. 	The AR5 final results
explain ITA’s
disagree[ment] 	with 	Xi’[a]n 	Metals’ 	argument 	that 	the
Thai 	military 	coup 	renders 	Thai 	import 	data 	to 	be
unrepresentative 	and 	unreliable. 	. 	. 	. 	[I]t 	is 	the
Department’s 	practice 	to 	focus 	on 	several 	criteria,
including 	whether 	the 	SV 	data 	are 	contemporaneous,
publicly 	available, 	tax 	and 	duty 	exclusive,
representative of a broad market average, and specific.
Xi’[a]n Metals has neither provided any evidence on the
record as to why the military coup affects the criteria
considered by the Department nor how specific inputs are
affected.
IDM at 13.
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Plaintiff 	Xi’an’s 	arguments 	here 	do 	not 	persuade 	as 	to
the incorrectness of ITA’s position on the subject. 	See, e.g., NMB
Singapore 	Ltd. 	v. 	United 	States, 	557 	F.3d 	1316, 	1319 	(Fed.Cir.
2009) 	(ITA’s 	explanations 	need 	not 	be 	perfect, 	only 	“reasonably
discernible”).
C
Plaintiff Xi’an also complains that an NME respondent has
no 	“ability” 	to 	select 	the 	primary 	surrogate 	country. 	The
defendant 	counters 	this 	is 	contrary 	to 	the 	statute 	because 	the
surrogate country must be deemed “appropriate by the administering
authority.” 	Xi’an replies that it could select the home market by
applying 	all 	of 	the 	statutory 	criteria, 	including 	economic
comparability 	and 	significance 	of 	production, 	see 	19 	U.S.C. 	§
1677b(c)(1)(B), and that the defendant has no answer to the problem
of how an NME respondent can comply with the remedial nature of the
antidumping 	laws 	if 	it 	has 	no 	way 	to 	estimate 	its 	costs 	when 	it
sets 	the 	price 	for 	export 	to 	the 	United 	States. 	Plaintiff 	Xi’an
states 	that 	it 	is 	simply 	pointing 	out 	that 	the 	NME 	respondent 	is
severely disadvantaged vis-á-vis market economy respondents if it
is 	not 	permitted 	to 	assert 	a 	surrogate 	country 	meeting 	all 	the
criteria and host to reasonably reliable data for the valuation of
its factors.
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The court appreciates this concern and can concur that a
rational producer would not chose the highest available steel costs
when lower domestic, regional, and economically comparable sources
are 	available 4 , 	but 	the 	argument 	is 	one 	that 	conflicts 	with 	what
has 	long 	been 	the 	case: 	“It 	is 	[ITA], 	not 	the 	respondent, 	that
determines 	what 	information 	is 	to 	be 	provided” 	for 	a 	particular
proceeding. 	Ansaldo 	Componenti, 	S.p.A. 	v. 	United 	States, 	10 	CIT
28, 	37, 	628 	F.Supp. 	198, 	205 	(1986). 	Accord 	Essar 	Steel 	Ltd. 	v.
United 	States, 	34 	CIT 	1057, 	1072-73, 	721 	F.Supp.2d 	1285, 	1298-99
(2010), aff’d in relevant part, 678 F.3d 1268 (Fed.Cir. 2012); NSK,
Ltd. 	v. 	United 	States, 	20 	CIT 	361, 	367, 	919 	F.Supp. 	442, 	447
(1996); 	Nachi-Fujikoshi 	Corp. 	v. 	United 	States, 	19 	CIT 	914, 	920,
890 F.Supp. 1106, 1111 (1995); Tianjin Mach. Import and Export Co.
v. United States, 16 CIT 931, 936, 806 F.Supp. 1008, 1015 (1992);
Chinsung Indus. Co. v. United States, 13 CIT 103, 705 F.Supp. 598
(1989); Timken Co. v. United States, 11 CIT 786, 804, 673 F.Supp.
495, 513 (1987); Smith-Corona Group Consumer Prods. Div., SCM Corp.
v. United States, 713 F.2d 1568, 1577 n. 26 (Fed.Cir. 1983), cert.
denied, 	465 	U.S. 	1022 	(1984). 	As 	the 	final 	selection 	of 	an
4 	Cf. 	Sigma 	Corporation 	v. 	United 	States, 	117 F.3d 1401,
1408 	(Fed.Cir. 	1997) 	(finding 	problematic 	the 	rationale 	that 	a
casting producer in the surrogate country would choose to pay the
highest combination of prices for pig iron plus freight).
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appropriate 	surrogate 	country 	occurs 	post-closing 	of 	the 	review
period, 	it 	may 	be 	that 	such 	selection 	is 	not 	susceptible 	to 	the
kind 	of 	predictability 	plaintiff 	Xi’an 	desires, 	but 	it 	is,
nonetheless, 	susceptible 	to 	the 	burden 	of 	persuasion 	borne 	by
interested parties.
D
Plaintiff 	Xi’an 	also 	asserts 	that 	ITA’s 	surrogate
brokerage and handling (“B&H”) is unreliable and unreasonably high.
It prays for remand consistent with Since Hardware (Guangzhou) Co.
v. 	United 	States, 	38 	CIT 	___, 	977 	F.Supp.2d 	1347 	(2014), 	which
barred the agency from relying on the hypothetical weight postured
in 	Doing 	Business 	reports. 	The 	plaintiff 	argues 	that, 	for 	the
denominator 	calculating 	B&H 	and 	inland 	freight 	costs, 	ITA 	should
use either the maximum cargo load for a 20-foot container or Xi’an
Metals’ 	own 	average 	cargo 	load 	instead 	of 	the 	weight 	of 	10,000
kilograms from the relevant Doing Business report.
The 	defendant 	responds 	that 	Xi’an 	Metals 	failed 	to
exhaust this specific argument before ITA during the administrative
process. 	It 	also 	responds 	that 	it 	would 	be 	inappropriate 	to 	use
Xi’an 	Metals’ 	own 	average 	cargo 	load 	because 	the 	value 	must 	come
from 	a 	selected 	surrogate 	country, 	and 	that 	substantial 	evidence
supports 	the 	use 	of 	the 	10,000 	kilogram 	denominator 	in 	any 	event
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because the relationship between costs and quantity is maintained
in 	reliance 	upon 	the 	Doing 	Business 	report 	and 	results 	in 	an
accurate per-unit cost. 	See also Def-Int’s Resp. at 18-20.
Pursuant to 28 U.S.C. §2637(d), the court “shall, where
appropriate, require the exhaustion of administrative remedies” in
civil actions arising from ITA’s antidumping- and countervailing-
duty determinations. 	The doctrine of exhaustion is that “no one is
entitled 	to 	judicial 	relief 	for 	a 	supposed 	or 	threatened 	injury
until 	the 	prescribed 	administrative 	remedy 	has 	been 	exhausted.”
Sandvik 	Steel 	Co. 	v. 	United 	States, 	164 	F.3d 	596, 	599 	(Fed.Cir.
1998), quoting McKart v. United States, 395 U.S. 185, 193 (1969).
It 	is 	well-settled 	that 	“[a] 	reviewing 	court 	usurps 	the 	agency’s
function when it sets aside an agency determination upon a ground
not 	theretofore 	presented 	and 	deprives 	the 	[agency] 	of 	an
opportunity to consider the matter, make its ruling, and state the
reason for its action.” 	Unemployment Compensation Comm’n of Alaska
v. 	Aragan, 	329 	U.S. 	143, 	155 	(1946) 	(“UCCA”); 	accord 	Yantai
Oriental 	Juice 	Co. 	v. 	United 	States, 	27 	CIT 	1709, 	1719 	(2003).
“Simple 	fairness 	to 	those 	who 	are 	engaged 	in 	the 	tasks 	of
administration, and to litigants, requires as a general rule that
courts should not topple over administrative decisions unless the
administrative 	body 	not 	only 	has 	erred 	but 	has 	erred 	against
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objection made at the time appropriate under its practice.” United
States 	v. 	L.A. 	Tucker 	Truck 	Lines, 	Inc., 	344 	U.S. 	33, 	37 	(1952).
See also Metz v. United States, 466 F.3d 991, 999 (Fed.Cir. 2006).
Thus, 	a 	party 	must 	present 	all 	arguments 	to 	ITA 	at 	the
time 	it 	is 	addressing 	an 	issue. 	E.g., 	Mittal 	Steel 	Point 	Lisas
Ltd. v. United States, 548 F.3d 1375, 1383-84 (Fed.Cir. 2008). 	A
party’s obligation to exhaust its administrative remedies applies
equally to overall issues as well as to individual arguments. Rhone
Poulenc, 	Inc. 	v. 	United 	States, 	899 	F.2d 	1185, 	1191 	(Fed.Cir.
1990). 	By 	failing 	to 	raise 	this 	argument 	until 	now, 	Xi’an 	Metals
deprived ITA of the “opportunity to consider the matter, make its
ruling, 	and 	state 	the 	reason 	for 	its 	action.” 	UCCA, 	329 	U.S. 	at
155.
None 	of 	the 	limited 	exceptions 	to 	the 	exhaustion
requirement apply here. See Corus Staal BV v. United States, 30 CIT
1040, 	1050 	n. 	11 	(2006) 	(identifying 	exceptions 	for 	pure 	legal
questions, futility in raising argument at agency level, denial of
access 	to 	confidential 	record, 	intervening 	judicial
interpretation), aff’d, 502 F.3d 1370 (Fed.Cir. 2007). 	First, the
pure 	question 	of 	law 	exception 	does 	not 	apply 	to 	arguments
concerning the new factual analysis that plaintiff Xi’an now posits
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for 	the 	first 	time. 	See 	Mittal 	Steel, 	548 	F.3d 	at 	1384 	(pure
question of law exception does not apply when the argument relies
on unique facts of the case). 	ITA did not have the opportunity to
analyze, 	in 	the 	first 	instance, 	Xi’an 	Metals’ 	contentions
pertaining 	to 	the 	Doing 	Business 	report 	and 	its 	preference 	for
instead using those B&H costs incurred by Thai exporters of frozen
freshwater shrimp. 	Second, it would not have been futile for Xi’an
Metals 	to 	present 	the 	analysis 	of 	the 	factual 	information 	to 	the
agency 	during 	the 	underlying 	administrative 	proceeding. 	The
futility 	exception 	to 	the 	exhaustion 	doctrine 	is 	narrow: 	parties
must 	demonstrate 	that 	they 	“would 	be 	required 	to 	go 	through
obviously useless motions in order to preserve their rights”, Corus
Staal, 	502 	F.3d 	at 	1379 	(internal 	quotations 	and 	citations
omitted), 	and 	plaintiff 	Xi’an’s 	argument 	does 	not 	satisfy 	that
standard. 	Third, there has been no intervening judicial decision
that 	might 	excuse 	the 	absence 	of 	Xi’an 	Metals’ 	argument 	at 	the
administrative level. 	Fourth, plaintiff Xi’an does not allege any
untimely 	access 	to 	the 	confidential 	record. 	Thus 	did 	it 	fail 	to
exhaust.
E
Plaintiff Xi’an’s last claim is that ITA made two labor
classification 	errors: 	(1) 	it 	included 	staff 	labor 	costs 	in 	the
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the 	selling, 	general, 	and 	administrative 	(“SG&A”) 	expenses,
reasoning 	that 	the 	respondents 	did 	not 	report 	labor 	hours
associated with the selling and administrative staff; and (2) from
the 	financial 	statements 	of 	the 	Thai 	company 	L.S. 	Industries 	Co.
(“LSI”) 	used 	for 	calculation 	of 	surrogate 	financial 	ratios 5 	ITA
accounted 	for 	various 	line 	items 	such 	as 	“welfare” 	and 	“social
security 	and 	compensation” 	as 	SG&A-type 	labor 	costs 	despite 	the
fact 	that 	the 	Thailand 	National 	Statistics 	Office 	(“NSO”)
statistics used to calculate labor SV includes such benefits in the
reported labor rate. 	See IDM at 19-20. 	ITA decided that it would
adhere 	to 	how 	the 	surrogate 	financial 	statements 	themselves
classified these items. 	See id. at 20.
And 	yet, 	in 	the 	calculation 	of 	surrogate 	financial
ratios, it is the agency’s practice to avoid double-counting labor
costs 	that 	are 	included 	among 	SG&A 	by 	“adjust[ing] 	the 	surrogate
financial 	ratios 	when 	the 	available 	record 	information 	-- 	in 	the
form 	of 	itemized 	indirect 	labor 	costs 	-- 	demonstrates 	that 	labor
costs 	are 	overstated.” 	Antidumping 	Methodologies 	in 	Proceedings
Involving Non–Market Economies: Valuing the Factor of Production:
Labor, 	76 	Fed.Reg. 	36092, 	36093-94 	(June 	21, 	2011) 	(“Labor
5 	See Final Surrogate Value Submission and Pre-Preliminary
Comments (Aug. 19, 2014) at Exhibit SV-1, PDoc 208.
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Methodologies”). 	Stated 	differently, 	ITA 	looks 	to 	the 	surrogate
financial 	statements 	on 	the 	record, 	and 	if 	they 	“include
disaggregated 	overhead 	and 	[SG&A] 	expense 	items 	that 	are 	already
included in the [record data used to value labor], [it] will remove
these identifiable costs items.” 	Id. at 36094. 	See, e.g., Certain
Frozen 	Warmwater 	Shrimp 	From 	the 	Socialist 	Rep. 	of 	Vietnam, 	67
Fed.Reg. 	56158 	(Sept. 	12, 	2011), 	and 	accompanying 	issues 	and
decision memorandum (“I&D memo”) at cmt. 5.B.
The defendant maintains that ITA followed practice during
the 	administrative 	proceeding 	by 	treating 	labor-related 	costs 	in
its 	financial 	ratio 	calculations 	in 	the 	same 	manner 	that 	the
surrogate company disaggregates labor costs, explaining that under
ITA’s FOP methodology for calculating normal value, labor expenses
capture the labor cost only for manufacturing, which is obtained by
multiplying a respondent’s reported direct and indirect labor hours
to 	manufacture 	subject 	merchandise 	by 	the 	surrogate 	labor 	rate
(e.g., the Thai NSO labor rate). 	The defendant contends that the
Thai 	NSO 	2007 	labor 	data, 	used 	to 	calculate 	the 	labor 	SV, 	were
derived 	from 	an 	average 	remuneration 	paid 	for 	persons 	engaged 	in
various “manufacturing and non-manufacturing activities”6 and that,
6 	Def’s Resp. at 82.
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contrary to plaintiff Xi’an’s argument, it does not follow that the
labor 	expenses 	calculated 	using 	the 	NSO 	labor 	rate 	capture 	all
labor expenses. 	Further, the defendant contends, the respondents
did 	not 	report 	labor 	hours 	associated 	with 	selling 	and
administrative 	staff, 	as 	staff 	labor 	costs 	would 	normally 	be
expected to be included among the SG&A expenses. 	Concluding, the
defendant 	argues 	the 	SG&A 	labor 	expenses 	in 	each 	surrogate
company’s financial statement should therefore be included in the
numerator 	of 	the 	SG&A 	ratio 	associated 	with 	that 	company, 	and
therefore 	the 	SG&A 	labor 	expenses 	listed 	in 	LSI’s 	financial
statements 	should 	be 	classified 	under 	the 	SG&A 	expenses 	and
included in the respective numerator of the SG&A ratio calculation,
an 	outcome 	ITA 	ensured 	by 	including 	the 	“Salary 	and 	Bonus” 	line
item from LSI’s “Total Cost of Management” in the SG&A buildup in
the 	financial 	ratio 	calculations. 	See 	Def’s 	Resp. 	at 	82-83,
referencing IDM at 19-20. 	See also Def-Int’s Resp. at 20-22.
Plaintiff Xi’an counters that defendant’s (and intervenor
-defendant’s 	similar) 	explanation 	merely 	restates 	ITA’s 	position
from the IDM rather than confronting the facts and logic of their
argument, 	which 	it 	contends 	amounts 	to 	a 	waiver 	of 	any 	surrogate
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labor 	cost 	defense 7 ; 	and 	that 	the 	Thai 	NSO 	2007 	labor 	data 	do
indeed 	cover 	“all” 	labor 	expenses, 	including 	overtime, 	benefits,
vacation 	pay, 	and 	the 	range 	of 	executive, 	administrative, 	and
production 	labor, 	regardless 	of 	the 	exactitude 	of 	“various
manufacturing and non-manufacturing activities”. 	XM Reply at 19,
referencing Pet’s SV Submission at Ex. 9, PDocs 158-160. 	Plaintiff
Xi’an 	further 	argues, 	it 	does 	not 	follow 	from 	the 	fact 	that
respondents are not required to report hours of administrative or
non-production labor (see NME questionnaire) that those costs have
not been counted, and also that it is indisputable that the labor
rate 	ITA 	now 	relies 	upon 	pursuant 	to 	Labor 	Methodologies 	is 	an
inflated rate intended to account for those very expenses.
It 	is 	apparent 	from 	the 	IDM 	at 	page 	19 	that 	ITA’s
reasoning was informed by Elkay Manufacturing Co. v. United States,
7 	À 	la 	Calgon 	Carbon 	Corp. 	v. 	United 	States, 	40 CIT ___,
Slip 	Op. 	16-4 	(Jan. 	20, 	2016) 	at 	11 	(“[t]he 	government 	and
petitioners, 	in 	their 	response 	briefs, 	chose 	not 	to 	address 	the
merits of CAC’s arguments, which were raised by CAC in its opening
brief 	supporting 	its 	CIT 	Rule 	56.2 	motion[;] 	[a]ny 	argument,
therefore, defending ITA’s selection of a $2.42 per kilogram rate
to 	Shanxi 	DMD, 	is 	waived, 	as 	CAC 	claimed 	in 	its 	reply 	brief”),
citing 	United 	States 	v. 	Great 	American 	Ins. 	Co. 	of 	New 	York, 	738
F.3d 	1320, 	1328 	(Fed.Cir. 	2013) 	(“[i]t 	is 	well 	established 	that
arguments 	that 	are 	not 	appropriately 	developed 	in 	a 	party’s
briefing 	may 	be 	deemed 	waived”) 	(add’l 	citations 	omitted). 	See
also Nan Ya Plastics Corp. v. United States, 810 F.3d 1333, 1346-47
(Fed.Cir. 2016), quoting id.
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38 	CIT 	___, 	___, 	34 	F.Supp.3d 	1369, 	1375-84 	(2014) 	(rejecting
argument that the NSO labor rate “failed to capture any SG&A labor
costs”, 	but 	also 	rejecting 	conclusion 	that 	“double-counting” 	of
SG&A labor expenses required the specific downward adjustments made
in 	that 	case, 	i.e., 	the 	record 	“lack[ed] 	substantial 	evidence 	to
support [ITA]’s conclusion that the rate [it] applied to the hours
of 	production 	labor 	reported 	by 	the 	investigated 	respondents
overstated the value of those labor hours to such an extent as to
justify 	the 	specific, 	compensatory 	adjustments 	. 	. 	. 	made 	to 	the
SG&A/interest expense ratios”). 	See also Elkay Manufacturing Co.,
supra, 	40 	CIT 	at 	___, 	180 	F.Supp.3d 	at 	1257-59 	(sustaining 	ITA’s
revised decision not to remove identifiable SG&A labor items from
its 	calculated 	SG&A 	expense 	ratios). 	The 	problem 	here, 	however,
appears similar to that which was recently considered in Yingqing
v. 	United 	States 8 . 	But, 	the 	source 	and 	labor 	rate 	ITA 	has
deliberately 	chosen 	pursuant 	to 	Labor 	Methodologies 	apparently
8 	40 	CIT 	___, 	___, 	195 	F.Supp.3d 	1299, 1309-11 (2016)
(discussing 	reliance 	upon 	Thai 	2007 	NSO 	data 	and 	LSI’s 	financial
statements 	and 	remanding 	for 	explanation 	of 	why 	items 	such 	as
“Employee 	welfare 	cost” 	and 	“Subsidy 	of 	Social 	Security 	Fund 	and
Workmen Compensation Fund”, which ITA had previously recognized in
Certain 	Steel 	Nails 	from 	the 	PRC, 	79 	Fed.Reg. 	19316 	(April 	8,
2014), 	and 	accompanying 	I&D 	memo 	at 	cmt. 	2, 	as 	indirect 	labor
expenses of the type covered by the 2007 NSO data which therefore
necessitated adjustment of the surrogate financial ratios to avoid
double counting, had not been treated similarly in the review under
consideration in Yingqing).
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includes 	all 	types 	and 	forms 	of 	labor 	as 	well 	as 	labor 	benefits,
and, in that announcement of new methodology, the agency recognized
that it would be over-counting the labor rate for production labor
and specifically indicated therein that the financial ratios would
have to be adjusted so labor was not double-counted; the implicit
remedy would be to move all labor costs explicitly incorporated in
the SG&A source and rate chosen to the ratio denominators.
In this case, by not removing the various line items such
as 	“welfare” 	and 	“social 	security 	and 	compensation” 	that 	are
presumptively 	included 	already 	in 	the 	Thai 	NSO 	rate, 	the 	SV 	for
labor 	is 	inflated, 	which 	requires 	correction 	initially 	via 	the
court’s grant of the pertinent part of plaintiff Xi’an’s motion for
agency 	reconsideration. 	On 	remand 	therefor, 	if 	ITA 	continues 	to
select 	a 	source 	and 	rate 	that 	includes 	all 	labor 	positions 	and
benefits, it needs to ensure that all forms of labor costs on the
financial statements are in the “materials-labor-energy” (or “MLE”)
denominator 	of 	the 	ratios 	in 	accordance 	with 	its 	Labor
Methodologies, but whatever course it chooses will need to obviate
the double counting 9 that is manifest in the AR5 final results.
9 	Prior to Labor Methodologies, ITA’s approach had been to
select 	a 	source 	for 	the 	production 	labor 	rate 	that 	included 	only
production labor, but the “mixed method” adopted by ITA here double
(continued...)
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III
A
The 	first 	claim 	of 	the 	Stanley 	plaintiffs’ 	Rule 	56.2
motion is that ITA arbitrarily refused to correct a transcription
error 	in 	their 	February 	17, 	2015 	post-verification 	FOP 	database
(specifically the omission of a zero in the tenth or one-hundredth
decimal 	place 	in 	field 	“V_DLCROD”), 	which 	they 	claim 	resulted 	in
the FOP for low-carbon SWR being overstated by almost nine percent,
and 	directly 	resulted 	in 	an 	erroneous 	increase 	in 	their 	dumping
margin of 3.09 percentage points -- about 30 percent higher than it
would have been absent the error. 	ITA had directed them to submit
the post-verification database to implement minor FOP corrections
that it had accepted at verification, including corrections to the
variance 	rate 	for 	SWR. 	PDoc 	257. 	The 	purpose 	of 	the 	revised
database 	was 	thus 	to 	ensure 	that 	the 	AR5 	final 	results 	would 	be
based 	on 	verified 	data, 	and 	the 	minor 	corrections 	should 	have
reduced the Stanley dumping margin from the Preliminary Results.
The 	Stanley 	plaintiffs 	contend 	ITA 	did 	not 	issue 	its
request 	for 	the 	revised 	FOP 	database 	until 	eight 	weeks 	after
9 	(...continued)
counts 	the 	respondent’s 	labor 	cost 	by 	saddling 	production 	labor
with 	a 	rate 	embedded 	with 	administrative 	and 	executive 	labor 	and
then charging for that administrative and executive labor a second
time by leaving those costs in the factory overhead and SG&A ratio
numerators. 	Cf. Yingqing, supra.
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verification, 	and 	the 	agency 	initially 	afforded 	only 	two 	days 	in
which 	to 	prepare 	and 	submit 	the 	revised 	database, 	a 	deadline
subsequently 	extended 	over 	a 	President’s 	Day 	weekend, 	which
relatively 	short 	deadline 	“certainly 	contributed 	to 	Stanley’s
computer programmer inadvertently omitting a zero to the right of
the 	decimal 	point 	in 	the 	field 	for 	concerning 	low-carbon 	SWR.”
Stanley 	Reply 	at 	3. 	The 	consolidated-plaintiffs 	further 	explain
that 	it 	was 	not 	possible 	to 	have 	identified 	the 	error 	in 	their
administrative 	case 	brief 	because 	the 	revised 	database 	was
submitted on the same day as that brief. 	Id. at 4.
Whatever 	the 	excuse, 	the 	error 	occurred, 	and 	it 	is
manifest. 	ITA’s 	ministerial 	error 	memorandum, 	PDoc 	297, 	and 	the
defendant 	imply 	Stanley 	had 	an 	opportunity 	to 	bring 	the 	error 	to
ITA’s attention in the time period between the case brief and the
AR5 	final 	results, 	to 	which 	the 	Stanley 	reply 	is 	that 	the 	timely
submission of a ministerial error allegation is the only available
procedure 	for 	correcting 	a 	clerical 	error 	in 	a 	submission 	made
concurrently 	with 	a 	case 	brief. 	See 	19 	U.S.C. 	§1675(h) 	and 	19
C.F.R. 	§351.224(e) 	(contemplating 	that 	final 	results 	are 	only
“final” subject to correction of ministerial errors). 	Stanley did
so. 	CDoc 327. 	But ITA rejected the ministerial error allegation
by stating that, generally, “ministerial errors include only those
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errors 	that 	are 	produced 	by 	the 	Department. 	The 	Department 	will
only correct a respondent’s error when that error is ‘so egregious
and 	so 	obvious’ 	that 	failing 	to 	correct 	the 	error 	would 	be
arbitrary and capricious.” 	PDoc 297 at 4. 	ITA then concluded the
error 	was 	“neither 	so 	egregious 	nor 	so 	obvious 	as 	to 	be
characterized as a ministerial error.” 	Id.
However, 	in 	light 	of 	the 	Stanley 	presentment, 	it 	is
difficult 	to 	fathom 	how 	their 	ministerial 	error 	could 	have 	been
concluded otherwise, especially given its impact on their overall
dumping 	margin 	(a 	43.5 	percent 	change 	from 	the 	Preliminary
Results). 	In 	short, 	ITA 	must 	be 	ordered 	on 	remand 	to 	make 	the
correction. 	See, e.g., NTN Bearing Corp. v. United States, 74 F.3d
1204, 1208 (Fed.Cir. 1995) (it is incumbent on ITA to correct such
errors, 	as 	it 	has 	a 	“duty 	to 	determine 	dumping 	margins 	‘as
accurately 	as 	possible’”), 	quoting 	Rhone 	Poulenc, 	Inc. 	v 	United
States, 	899 	F.2d 	1185, 	1191 	(Fed.Cir. 	1990). 	See 	also 	Brother
Indus., 	Ltd. 	v. 	United 	States, 	15 	CIT 	332, 	341, 	771 	F.Supp. 	374,
384 (1991) (“court-ordered amendments of ministerial errors are not
destructive of the ITA’s ability to manage its proceedings”).
B
The 	remainder 	of 	the 	Stanley 	motion 	focuses 	on 	ITA’s
targeted 	dumping 	analysis 	of 	its 	sales, 	i.e, 	by 	“purchasers,
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regions, or periods of time.” 	19 U.S.C. §1677f-1(d)(1)(B). 	See,
e.g., 	Mid Continent Nail Corp. V. United States, 38 CIT ___, ___
n. 3, 999 F.Supp.2d 1307, 1311 n. 3 (2014).
Section 	1677f-l(d) 	of 	Title 	19, 	U.S.C. 	directs 	“in
general” that ITA “shall” calculate dumping margins using the A-A
or transaction-to-transaction (“T-T”) price comparison methods, see
id., 	subsection 	(1)(A), 	but 	where 	the 	record 	establishes 	the
existence of a pattern of export prices that differ significantly
among customers, regions, or time periods and why such differences
cannot 	be 	accounted 	for 	using 	the 	A-A 	method 	is 	explained, 	ITA
“may” calculate dumping margins using a different methodology such
as the A-T method. 	See 19 U.S.C. §1677f-l(d)(l)(B). 	When ITA uses
that 	method, 	it 	reverts 	to 	“zeroing” 10 	but 	does 	not 	ignore 	non-
10 	This 	refers 	to 	the 	practice 	of 	not using transactions
with U.S. selling prices above normal value to offset transactions
with U.S. selling prices below normal value. See, e.g., Timken Co.
v. 	United 	States, 	38 	CIT 	___, 	___, 	968 	F.Supp.2d 	1279, 	1281-82
(2014). ITA abandoned “zeroing” in administrative reviews in 2012,
Antidumping 	Proceedings: 	Calculation 	of 	the 	Weighted-Average
Dumping 	Margin 	and 	Assessment 	Rate 	in 	Certain 	Antidumping 	Duty
Proceedings; Final Modification, 77 Fed.Reg. 8101 (Feb. 14, 2012),
and Stanley complains that the continued act of “zeroing” generates
higher 	calculated 	dumping 	margins 	(Stanley 	claims 	the 	use 	of 	A-T
with 	zeroing 	raised 	its 	margin 	from 	zero 	to 	13.19 	percent). 	The
court 	observed 	in 	dicta 	nearly 	twenty 	years 	ago 	that 	comparisons
based 	on 	the 	A-A 	method 	appear 	to 	“allow 	higher 	prices 	to 	cancel
out 	some 	amount 	of 	dumping” 	and 	also 	that 	“transaction-specific
price 	comparisons 	are 	statistically 	biased 	toward 	a 	dumping
(continued...)
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dumped 	sales 	when 	it 	uses 	the 	A-A 	method. 	The 	Statement 	of
Administrative 	Action 	(“SAA”) 	accompanying 	the 	Uruguay 	Round
Agreements Act explains that Congress intended “targeted dumping”
to comprise “situations [in which] an exporter may sell at a dumped
price to particular customers or regions, while selling at higher
prices 	to 	other 	customers 	or 	regions.” 	The 	SAA 	explicitly 	links
ITA’s use of the A-T method to “targeted dumping”:
New 	Section 	777A(d)(l)(B) 	provides 	for 	a 	comparison 	of
average normal values to individuals export prices ... in
situations where an average-to-average or transaction-to-
transaction methodology cannot account for a pattern of
prices 	that 	differ 	significantly 	among 	purchasers,
regions, 	or 	time 	periods, 	i.e., 	where 	targeted 	dumping
may be occurring.
SAA at 843.
Consistent 	with 	the 	SAA, 	ITA 	promulgated 	a 	targeted
dumping regulation, 19 C.F.R. §351.414(f). 	See Antidumping Duties;
Countervailing Duties, 62 Fed.Reg. 27296, 27373-76 (May 19, 1997).
Its salient elements are:
10 	(...continued)
finding”, 	Borden, 	Inc. 	v. 	United 	States, 	22 	CIT 	233, 	235-40, 	4
F.Supp.2d 	1221, 	1224-28 	(1998), 	citing 	How 	the 	GATT 	Affects 	U.S.
Antidumping 	and 	Countervailing 	Duty 	Policy, 	33-35, 	66
(Congressional Budget Office 1994), but to that point “zeroing” had
long 	been 	understood 	to 	be 	a 	not-improper 	philosophic, 	not
mathematic, interpretation of how dumping is best determined under
U.S. law -- at least until certain members of appellate panels of
the World Trade Organization began to surprise these United States
in opining what had originally been negotiated and “agreed to” when
the Antidumping “Agreement” was signed.
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1. Targeted dumping must be determined through the use of
“standard and appropriate statistical techniques.”
2. 	The 	A-T 	comparison 	is 	used 	only 	for 	those 	specific
sales that comprise targeted dumping.
3. “Normally,” targeted dumping will be pursued only in
response to an allegation by a petitioner that includes
supporting factual information and an explanation as to
why 	the 	A-T 	comparison 	could 	not 	take 	into 	account 	any
alleged price differences.
The 	current 11 	test 	of 	targeted 	dumping, 	differential
pricing, purports to examine differences in a respondent’s prices
among individual purchasers, geographic regions, and quarterly time
periods. 	It 	is 	performed 	at 	the 	level 	of 	individual 	product
control 	numbers 	(CONNUMs) 	and 	net 	of 	adjustments 	to 	gross 	U.S.
selling 	price. 	ITA 	does 	not 	require 	any 	allegation 	or 	factual
11 	ITA’s 	approach 	has 	evolved 	over 	at 	least five distinct
tests 	to 	determining 	the 	presence 	of 	targeted 	dumping: 	(1) 	the
“pasta test”, announced in 1998 in response to the Borden decision,
supra; (2) the “P/2” test (Notice of Final Determination of Sales
at Less Than Fair Value: Coated Free Sheet Paper from the Republic
of 	Korea, 	72 	Fed.Reg. 	60630 	(Oct. 	25, 	2007)); 	(3) 	the 	“Nails 	I”
test 	(Certain 	Steel 	Nails 	from 	the 	People’s 	Republic 	of 	China:
Final 	Determination 	of 	Sales 	at 	Less 	Than 	Fair 	Value 	and 	Partial
Affirmative 	Determination 	of 	Critical 	Circumstances, 	73 	Fed.Reg.
33977 	(June 	16, 	2008)); 	(4) 	the 	“Nails 	II” 	test 	(Polyethylene
Retail 	Carrier 	Bags 	from 	Taiwan: 	Final 	Determination 	of 	Sales 	At
Less Than Fair Value, 75 Fed.Reg. 14569 (March 26, 2010)); and (5)
differential 	pricing 	(Xanthan 	Gum 	from 	the 	People’s 	Republic 	of
China: 	Final 	Determination 	of 	Sales 	At 	Less 	Than 	Fair 	Value, 	78
Fed.Reg. 33351 (June 4, 2013), and accompanying I&D memo).
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support 	in 	differential 	pricing; 	rather, 	ITA 	now 	performs
differential pricing by rote in every proceeding.
ITA analyzes prices for each CONNUM by dividing them into
a 	series 	of 	“test 	groups” 	(each 	comprising 	prices 	to 	a 	specific
purchaser, 	region, 	or 	calendar 	quarter) 	and 	“base 	groups”
(comprising 	the 	remaining 	purchasers, 	regions, 	or 	calendar
quarters). 	Prices to every purchaser, region, and calendar quarter
are 	serially 	analyzed 	as 	a 	test 	group 	and 	then 	recycled 	into 	the
base 	group 	of 	prices 	for 	that 	CONNUM. 	Differential 	pricing 	then
entails three elements.
In the first element, ITA employs “Cohen’s d statistic”
to 	measure 	the 	“effect 	size” 	between 	each 	test 	group 	and 	its
relevant 	base 	group. 	The 	agency 	describes 	effect 	size 	as 	a
descriptive 	measure 	of 	the 	“magnitude” 	of 	the 	difference 	between
two 	groups, 	which 	the 	Stanley 	plaintiffs 	contend 	infra 	is 	gross
oversimplification.
ITA 	calculates 	the 	Cohen 	d 	statistic 	as 	the 	difference
between the weighted average net prices of the test and base groups
divided by the “pooled” standard deviation of the net prices of the
two 	groups. 	The 	pooled 	standard 	deviation 	is 	calculated 	as 	the
square root of the sum of the square of the base group’s standard
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deviation plus the square of the test group’s standard deviation,
divided by two. 	The resulting coefficients are labeled as “small”,
“medium”, or “large”.
Notably, 	ITA 	ignores 	whether 	a 	test 	group’s
weighted-average 	price 	is 	higher 	or 	lower 	than 	the 	base 	group’s
weighted-average price. 	A “large” Cohen’s d coefficient is 0.8 or
greater, which means that the weighted-averages of the base group
and the test group differ by 0.8 standard deviations. 	The agency
deems all sales that meet or exceed the 0.8 Cohen d coefficient to
have 	“passed” 	that 	threshold, 	thereby 	satisfying 	the 	statute’s
requirement 	that 	“significant” 	price 	differences 	exist 	as 	a
precondition to using the A-T method.
In 	the 	second 	element, 	called 	the 	“ratio” 	test, 	ITA
stratifies the percentage of a respondent’s sales that “pass” the
Cohen d test. 	If the value of a respondent’s passing sales account
for 	66 	percent 	or 	more 	of 	the 	value 	of 	its 	total 	sales, 	then 	the
agency 	uses 	the 	A-T 	method 	with 	zeroing 	for 	all 	sales. 	If 	the
Cohen d test “pass” rate is 33 percent or less, then ITA uses the
A-A 	method 	for 	all 	sales. 	If 	the 	Cohen 	d test 	“pass” 	rate 	falls
between 	33 	percent 	and 	66 	percent, 	then 	the 	agency 	uses 	the 	A-T
method with zeroing for sales that “pass” the Cohen d test and the
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Consol. Court No. 15-00109 	Page 33
A-A method for the remaining sales. 	ITA deems this stratification
of CDT “pass” rates to establish whether a “pattern” of significant
price differences exists.
In the third element, called the “meaningful difference”
test, ITA calculates the respondent’s dumping margin in three ways.
First, 	it 	uses 	the 	A-A 	method 	for 	all 	sales. 	Second, 	it 	uses 	a
“mixed” method in which the A-T method with zeroing is applied only
to sales that have “passed” the Cohen d test while the A-A method
is 	applied 	to 	the 	remaining 	sales. 	Third, 	ITA 	applies 	the 	A-T
method with zeroing to all sales. 	Depending on the results of the
“ratio” test, the margin resulting from either the second or third
method is compared to the margin resulting from the A-A method for
all 	sales. 	The 	agency 	deems 	a 	“meaningful 	difference” 	to 	exist
between 	the 	two 	calculations 	if 	the 	margin 	using 	the 	A-T 	(or
“mixed”) method (1) generates a 25 percent relative change in the
dumping 	margin 	compared 	to 	the 	A-A 	method, 	or 	(2) 	generates 	a
dumping margin that crosses the de minimis threshold when compared
to 	the 	A-A 	method. 	ITA 	deems 	the 	existence 	of 	a 	“meaningful
difference” 	sufficient 	to 	explain 	why 	it 	cannot 	account 	for 	a
pattern of significant price differences using the A-A method.
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C
As an initial matter, the Stanley plaintiffs raise again
the issue of ITA’s “abrupt” withdrawal of its 1997 targeted dumping
regulation 	pursuant 	to 	Withdrawal 	of 	the 	Regulatory 	Provisions
Governing Targeted Dumping in Antidumping Duty Investigations, 73
Fed.Reg. 74930 (Dec. 10, 2008). 	See 19 C.F.R. §351.414(f) (2007).
Mid Continent Nail Corp. v. United States, 846 F.3d 1364
(Fed.Cir. 2017), indeed held that withdrawal to have been unlawful
and not harmless in accordance with the Administrative Procedures
Act. 	Defendant’s explanation is that, whereas the statute places
certain restrictions on ITA selection of a comparison methodology
for purposes of investigations, it does not do so for purposes of
administrative reviews such as the one at bar. 	Def’s Resp. at 23-
24, 	referencing 	19 	U.S.C. 	§1677f-1(d)(1)(B), 	SAA 	at 	842-43. 	JBF
RAK LLC v. United States, 790 F.3d 1358, 1364 (Fed.Cir. 2015), held
that to be true, and cases since have consistently deferred to that
interpretation. 	E.g., 	Fine 	Furniture 	(Shanghai) 	Ltd. 	v. 	United
States, 	40 	CIT 	___, 	___, 	182 	F.Supp.3d 	1350, 	1364 	(2016); 	Nan 	Ya
Plastics 	Corp., 	Ltd. 	v. 	United 	States, 	39 	CIT 	___, 	___ 	n. 	3, 	128
F.Supp.3d 1345, 1349 n. 3 (2015); Apex Frozen Foods Private Ltd. v.
United 	States, 	38 	CIT 	___, 	___, 	37 	F.Supp.3d 	1286, 	1293 	(2014),
aff’d, 862 F.3d 1322 (Fed.Cir. 2017); CP Kelco Oy v. United States,
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38 	CIT 	___, 	___, 	978 	F.Supp.2d 	1315, 	1320 	(2014); 	Timken 	Co. 	v.
United States, 	38 CIT ___, ___ & n. 7, 968 F.Supp.2d 1279, 1286 &
n. 7 (2014). 	Further, although ITA typically cites to 19 U.S.C. §
1677f-1(d)(1)(B) 	for 	“guidance”, 	it 	does 	not 	consider 	that
provision “binding” legal authority since its statutory authority
to 	select 	a 	comparison 	methodology 	in 	reviews 	is 	derived 	from 	a
different provision, 19 U.S.C. §1677f-1(d)(2), which does not place
restrictions on ITA’s choice of comparison methodology. 	As such,
the 	agency 	has 	discretion 12 	to 	apply 	A-T 	methodology 	in 	reviews
notwithstanding the circumstances surrounding the withdrawal of the
pre-2008 targeted dumping regulation.
The 	defendant 	contends 	ITA 	properly 	applied 	A-T
methodology during AR5. 	It found that the value of Stanley sales
passing the Cohen d test accounted for more than 66 percent of the
value 	of 	total 	Stanley 	United 	States 	sales 	and 	also 	found 	a
meaningful difference between the weighted-average dumping margins
12 	But as a further threshold matter, the Stanley plaintiffs
complain ITA initiated differential pricing without an allegation
that 	they 	had 	engaged 	in 	targeted 	dumping. 	And 	cf. 	Diamond
Sawblades 	Manufacturers’ 	Coalition 	v. 	United 	States, 	39 	CIT 	___,
Slip 	Op 	15–116 	(Oct. 	21, 	2015), 	at 	5-6 	& 	n.4 	(ITA 	rejecting 	a
targeted 	dumping 	allegation 	as 	untimely 	and 	declining 	to
self-initiate 	on 	the 	ground 	that 	the 	targeted 	dumping 	provision
applies 	by 	its 	express 	terms 	to 	agency 	investigations 	not
administrative reviews). 	The consolidated-plaintiffs do not press
the point to one of unlawfulness herein, however.
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calculated using the A-A methodology and an alternative comparison
methodology 	based 	on 	the 	A-T 	method. 	See 	Stanley 	Final 	Results
Analysis 	Memo 	at 	3. 	See 	also 	IDM 	at 	36. 	Specifically, 	when
comparing 	the 	Stanley 	weighted-average 	dumping 	margin 	calculated
pursuant 	to 	the 	A-A 	method 	and 	an 	alternative 	comparison 	method
based 	on 	the 	A-T 	method, 	that 	margin 	rose 	above 	the 	de 	minimis
threshold. 	Such 	a 	difference 	in 	the 	weighted-average 	dumping
margins has been held to satisfy the statutory requirement that ITA
explain why the A-A method cannot account for such differences. See
Apex Frozen Foods, supra, 38 CIT at ___, 37 F.Supp.3d at 1295-96.
Cf. Golden Dragon Precise Copper Tube Grp., Inc. v. United States,
39 	CIT 	___, 	Slip 	Op. 	15-89 	(2015) 	at 	15-16 	(“the 	significance 	of
the 	‘effect 	size’ 	. 	. 	. 	in 	and 	of 	itself 	‘explains 	why 	such
differences cannot be taken into account’ using A-A methodology”).
Be that as it may, it misses the Stanley point that the
regulation 	expressly 	limits 	the 	A-T 	methodology 	“to 	those 	sales
that constitute targeted dumping”, and it is this “limiting rule”
that 	Gold 	East 	Paper 	(Jiangsu) 	Co. 	v. 	United 	States, 	37 	CIT 	___,
___, 918 F.Supp.2d 1317, 1327 (2013), and Mid Continent both held
still in effect at the times in question. 	The AR5 final results
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violate 	this 	rule 	by 	applying 	the 	A-T 	methodology 	to 	all 	Stanley
sales. 	Remand, 	for 	the 	purpose 	of 	properly 	applying 	it, 	is
therefore necessary.
D
The Stanley plaintiffs argue that ITA’s use of the Cohen
d 	test 	is 	unlawful 	because 	it 	(i) 	was 	allegedly 	designed 	for 	a
context 	dissimilar 	to 	that 	being 	analyzed 	by 	the 	agency 	in 	a
differential 	pricing 	analysis; 	(ii) 	is 	arbitrary 	in 	terms 	of 	its
classification 	of 	effect 	sizes; 	(iii) 	is 	unreasonable 	when 	the
entire 	data 	population 	is 	available; 	and 	(iv) 	fails 	to 	measure
statistical significance.
(i)
Their 	claim 	is 	that 	Dr. 	Cohen’s 	d 	test 	was 	created 	for
psychological 	research 	and 	used 	as 	a 	tool 	in 	the 	behavioral
sciences and should not apply in a matter like this. 	The defendant
responds that ITA uses the test to analyze a respondent’s pricing
behavior, see IDM at 31, and that the economics of pricing behavior
is, in fact, a subset within the ambit of behavioral science. 	It
is 	an 	accepted 	statistical 	test, 	employed 	by 	ITA 	to 	discern 	a
pricing 	pattern, 	and 	the 	Stanley 	position 	neither 	persuades 	that
the 	agency’s 	use 	of 	it 	was 	unreasonable 	nor 	demonstrates
unlawfulness thereof.
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(ii)
The 	Stanley 	plaintiffs 	contend 	ITA’s 	classification
method 	for 	the 	Cohen 	d 	test 	effect 	size 	is 	arbitrary. 	By 	way 	of
background, 	after 	ITA 	determines 	Cohen’s 	d 	coefficient, 	it
establishes a threshold to determine whether that is significant.
See PDM at 16-17. 	The defendant explains that the agency adheres
to the three different fixed thresholds Dr. Cohen deduced (small,
medium, 	and 	large) 	because 	they 	allow 	ITA 	to 	determine 	the
“significance” 	(or 	meaningfulness) 	of 	the 	differences 	between
prices to a particular purchaser, region, or time period as well as
the 	prices 	of 	comparable 	merchandise 	to 	all 	other 	purchasers,
regions, or time periods in an efficient and predictable way, and
are generally accepted thresholds for the d test. 	See id. at 34-35
(citing 	and 	quoting 	David 	Lane 	et 	al., 	“Effect 	Size,” 	Section 	2,
“Difference 	Between 	Two 	Means” 	(stating 	that 	the 	guidelines
suggested 	by 	Dr. 	Cohen 	as 	to 	what 	constitutes 	small, 	medium, 	and
large effect size “have been widely adopted”)). 	ITA generally uses
the “large” threshold (i.e. Cohen’s d coefficient above 0.8) as the
threshold 	for 	passing 	the 	d 	test, 	because 	the 	“large” 	threshold
provides 	the 	strongest 	support 	for 	the 	differences 	being
meaningful. 	Id. at 36-37.
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Substantial evidence of record herein supports the use of
Dr. 	Cohen’s 	d 	test 	and 	the 	threshold 	demarcations 	he 	intuited,
along with the caveats he enunciated, since the record evinces that
his 	test 	gained 	awareness, 	acceptance, 	and 	use 	among 	scientists
within 	various 	disciplines 	of 	the 	self-professed 	community 	of
“experts”, see, e.g., id., and the Stanley arguments do little to
contradict 	or 	counteract 	this 	fact. 	Therefore, 	because 	ITA 	used
widely accepted thresholds, provided a rational explanation as to
which threshold to employ, and selected a threshold for the Cohen
d 	coefficient 	which 	has 	real 	world, 	practical 	meaning 	consistent
with the statute, its use of the threshold is not arbitrary. 	Cf.
Cosco Home & Office Prods. v. United States, 28 CIT 2043, 2049-50,
350 F.Supp.2d 1294, 1299-1300 (2004) (holding ITA’s interpretation
of 	19 	U.S.C. 	§1675(a)(1) 	and 	amendment 	of 	its 	regulations
reasonable); Mitsubishi Heavy Indus., Ltd. v. United States, 21 CIT
1227, 1233-35, 986 F.Supp. 1428, 1434-35 (1997) (50 percent test).
(iii)
The Stanley plaintiffs challenge ITA’s application of the
ratio 	test, 	claiming 	that 	it 	does 	not 	explain 	how 	the 	three
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thresholds 	thereof13 	satisfy 	the 	statutory 	requirements. 	ITA
explained that it uses the ratio test to complete its determination
as 	to 	whether 	there 	exists 	a 	pattern 	of 	prices 	that 	differ
significantly by purchaser, region, or period of time. 	See PDM at
17. 	This 	is 	necessary 	because, 	even 	though 	the 	sales 	for 	one 	or
more 	groups 	of 	comparable 	merchandise 	for 	specific 	purchasers,
regions, 	or 	time 	periods 	may 	pass 	the 	Cohen 	d 	test, 	it 	does 	not
necessarily 	follow 	that, 	in 	relation 	to 	the 	total 	volume 	of 	a
respondent’s export sales, there is sufficient evidence that there
exists a pattern of prices that differ significantly. 	See IDM at
37-38. 	Pursuant 	to 	19 	U.S.C. 	§1677f-1(d)(1)(B), 	ITA 	“may
determine” 	whether 	sales 	were 	made 	at 	less 	than 	fair 	value 	using
the 	alternative 	method 	when 	subsections 	(i) 	and 	(ii) 	of 	the
provision 	are 	satisfied, 	but 	the 	statute 	is 	silent 	as 	to 	how 	ITA
may determine whether those subsections are thus and such. 	See id.
The 	agency 	in 	this 	matter 	lawfully 	exercised 	its 	discretion 	in
filling 	the 	gaps 	of 	determining 	how 	the 	A-T 	method 	could 	be
considered 	as 	an 	alternative 	methodology. 	See 	id. 	See 	also 	JBF
RAK, supra, 790 F.3d at 1364.
13 	Thirty-three 	percent 	or 	less; 	33-66 	percent; 	and 	66
percent or more.
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(iv)
The Stanley plaintiffs assert that the statute requires
ITA to measure “statistical significance,” which the Cohen d test
does 	not 	measure. 	This 	assertion 	underlies 	many 	of 	the 	Stanley
arguments, but “statistical significance” is irrelevant where, as
here, the agency has a complete set of data to consider.
The 	statute 	provides 	that 	ITA 	may 	apply 	an 	alternative
comparison methodology if it finds “a pattern of export prices (or
constructed export prices) for comparable merchandise that differ
significantly among purchasers, regions, or periods of time[.]” 19
U.S.C. 	§1677f-1(d)(1)(B)(i) 	(emphasis 	added). 	Additionally, 	the
SAA states:
New 	Section 	777A(d)(1)(B) 	provides 	for 	a 	comparison 	of
average normal values to individual export prices . . .
in situations where an [A-A] or [T-T] methodology cannot
account for a pattern of prices that differ significantly
among purchasers, regions, or time periods, i.e., where
targeted dumping may be occurring.
SAA 	at 	843 	(emphasis 	added). 	Neither 	the 	statute 	nor 	the 	SAA
defines the term “significantly”, but the consolidated-plaintiffs
contend 	its 	plain 	meaning 	is 	“statistically 	significant.” 	ITA
interprets otherwise.
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Statistical 	significance 	only 	takes 	on 	relevance 	when
“determin[ing] from a sample (i.e., the data at hand) of a larger
population an estimate of what the actual values (e.g., the mean or
variance) of the larger population may be”. 	IDM 	at 34. 	Here, ITA
has 	the 	entire 	population 	of 	the 	respondents’ 	sales 	in 	the 	U.S.
market; 	therefore, 	“‘statistical 	significance’ 	is 	not 	a 	relevant
consideration.” 	Id. 	The 	agency 	calculates 	the 	Cohen 	d
coefficients 	to 	determine 	whether 	differences 	in 	prices 	for
comparable merchandise among purchasers, regions, or time periods
are significant, and those calculations are based upon all of the
United States sales that Stanley reported for the POR, not merely
a 	sample, 	and 	thus 	form 	the 	entire 	population 	of 	U.S. 	sales 	of
subject merchandise. 	See id. 	Sampling error does not exist when
there are complete data for analysis.
The 	Stanley 	plaintiffs 	state 	that 	the 	purpose 	of 	the
Cohen 	d 	test 	is 	to 	“make 	reasonable 	queries 	as 	to 	how 	big 	an
intervention 	effect 	may 	be 	when 	only 	a 	sample 	is 	available.” 	It
would 	be 	more 	accurate 	to 	state, 	however, 	that 	the 	Cohen 	d
coefficient 	measure 	of 	effect 	size 	“quantifies 	the 	size 	of 	the
difference 	between 	two 	groups, 	and 	may 	therefore 	be 	said 	to 	be 	a
true 	measure 	of 	the 	significance 	of 	the 	difference” 	based 	on
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complete 	information, 	not 	samples. 	See 	id. 	at 	33 	(citations
omitted). 	Accordingly, once again, the “statistical significance”
of 	ITA’s 	calculations 	is 	not 	relevant 	to 	its 	analysis, 	and
requiring 	the 	agency 	to 	measure 	statistical 	significance 	here,
where 	it 	has 	incorporated 	all 	of 	the 	respondents’ 	data 	in 	the
analysis, would be inappropriate 14 .
As 	noted 	above, 	Congress 	did 	not 	use 	the 	word
“statistical” or any variation thereof when it drafted the statute.
And as ITA stated in the IDM, and as Stanley has argued elsewhere,
Congress 	acts 	intentionally 	when 	it 	drafts 	statutory 	language.
Simply 	put, 	if 	Congress 	had 	wanted 	ITA 	to 	measure 	“statistical
14 	A 	number 	of 	Stanley 	arguments 	continue 	to press an
interpretation of the term “significant” that is at variance with
what 	the 	statute 	requires. 	For 	example, 	the 	consolidated-
plaintiffs 	raise 	concerns 	with 	regard 	to 	accounting 	for 	random
events 	and 	Type 	I 	error 	(i.e., 	a 	“false 	positive” 	leading 	to
incorrect 	rejection 	of 	a 	true 	null 	hypothesis), 	and 	they 	also
express concerns about whether Cohen’s d test tests a statistical
hypothesis, 	which 	is 	necessary 	when 	measuring 	for 	statistical
significance. But as indicated above, there are no random estimates
of 	actual 	statistical 	measures 	because 	ITA’s 	analysis 	relies 	on
complete information to perform such calculations. See IDM at 34.
Because 	the 	agency 	has 	the 	complete 	population 	of 	Stanley 	United
States 	sales, 	none 	of 	the 	resulting 	calculations 	evince 	random
errors 	because 	of 	sampling, 	and 	because 	there 	is 	no 	sampling 	or
randomness, all issues related to Type I errors, which are errors
that occur because of sampling, are moot.
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significance,” it would have included the word “statistical”15 . 	In
applying the Cohen d test, ITA fulfills the statutory requirement
to 	measure 	whether 	there 	exists 	a 	pattern 	of 	prices 	that 	differ
“significantly”, and the d test enables the agency to quantify, in
a 	simple 	and 	transparent 	approach, 	whether 	prices 	differ
significantly among purchasers, regions, or time periods.
(v)
The Stanley plaintiffs claim that several other aspects
of 	ITA’s 	differential 	pricing 	analysis 	contravene 	congressional
intent. 	However, 	mere 	disagreement 	with 	its 	approach, 	where 	the
statute 	is 	silent, 	is 	not 	a 	sufficient 	basis 	for 	the 	court 	to
overturn the agency’s reasoning. 	See Mid Continent Nail Corp. v.
United States, 34 CIT 512, 519, 712 F.Supp.2d 1370, 1376-77 (2010)
(“[g]enerally, 	courts 	lack 	an 	‘independent 	authority 	to 	tell 	the
[agency] 	how 	to 	do 	its 	job’ 	when 	a 	statute 	does 	not 	specify 	‘any
15 	The Stanley definition of “significant” is “1. a) having
or 	expressing 	a 	meaning, 	b) 	full 	of 	meaning; 	2. 	important;
momentous; 	3. 	having 	or 	conveying 	a 	special 	or 	hidden 	meaning;
suggestive; 	4. 	of 	or 	pertaining 	to 	an 	observed 	departure 	from 	a
hypothesis 	too 	large 	to 	be 	reasonably 	attributed 	to 	chance”,
Stanley 	Br., 	p. 	32, 	citing 	Webster’s 	New 	World 	Dictionary 	of 	the
American 	Language 	at 	1325 	(1980) 	(emphasis 	omitted), 	and 	that
proffered definition supports ITA’s understanding of being tasked
by 	statute 	to 	find 	a 	meaningful 	difference 	between 	the 	average
price of a test group and the average price of a comparison group,
which the Cohen d test accomplishes. See IDM at 32, 36-37.
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Congressionally mandated procedure or methodology for assessment of
the statutory tests’”), quoting U.S. Steel Group v. United States,
96 F.3d 1352, 1362 (Fed.Cir. 1996). 	The statute does not specify
the particular analysis or approach that ITA must use, and in the
absence 	of 	showing 	challenged 	aspects 	of 	agency 	analysis
unreasonable, the court will defer to its discretion.
(vi)
The 	final 	step 	of 	ITA’s 	differential 	pricing 	analysis
examines whether the A-A methodology can account for a pattern of
prices 	that 	differ 	significantly 	by 	determining 	whether 	there
exists 	a 	meaningful 	difference 	in 	the 	weighted-average 	dumping
margins 	calculated 	using 	that 	methodology 	and 	an 	appropriate
alternative 	comparison 	methodology. 	See 	IDM 	at 	36. 	The 	Stanley
plaintiffs argue that the AR5 final results do not explain why the
difference 	in 	the 	pattern 	of 	prices 	cannot 	be 	accounted 	for 	with
the 	A-A 	method. 	But 	their 	argument 	fails 	to 	persuade 	that 	ITA’s
explanation 	therein 	as 	to 	why 	that 	approach 	cannot 	account 	for
pricing differences was unreasonable. 	See id.
As explained in the AR5 final results (and again above),
if 	the 	difference 	in 	the 	weighted-average 	dumping 	margins
calculated 	using 	the 	A-A 	method 	and 	an 	appropriate 	alternative
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comparison 	method 	is 	meaningful, 	then 	that 	fact 	is 	indicative 	of
whether 	that 	method 	cannot 	account 	for 	such 	differences 	and
therefore 	an 	alternative 	method 	would 	be 	appropriate. 	See 	id.
More precisely, a meaningful difference between the results of the
A-A 	methodology 	and 	an 	appropriate 	alternative 	(A-T 	in 	this
instance) exists if: (1) there is a 25 percent relative change in
the 	weighted-average 	dumping 	margins 	between 	the 	A-A 	methodology
and the appropriate alternative where both are above the de minimis
threshold, 	or 	(2) 	the 	resulting 	weighted-average 	dumping 	margins
move across that threshold. 	See id.
ITA found that a meaningful difference exists because the
Stanley 	weighted-average 	dumping 	margin 	did 	move 	across 	that
threshold 	upon 	a 	comparison 	of 	the 	two 	methods. 	See 	id. 	This
threshold 	is 	reasonable 	because 	comparing 	the 	weighted-average
dumping 	margins 	calculated 	using 	the 	two 	methods 	allows 	ITA 	to
quantify 	the 	extent 	to 	which 	the 	A-A 	method 	cannot 	take 	into
account 	different 	Stanley 	pricing. 	And 	ITA’s 	determination 	that
the 	A-A 	methodology 	cannot 	account 	for 	the 	difference 	in 	the
pattern 	of 	prices 	in 	similar 	circumstances 	has 	been 	upheld 	in
court. 	E.g., Samsung Elecs. Co. v. United States, 39 CIT ___, ___,
72 	F.Supp.3d 	1359, 	1368 	(2015) 	(holding 	that 	ITA 	reasonably
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explained that “the A-to-A method does not take into account such
price differences because there is a meaningful difference in the
weighted average dumping margins when calculated using the A-to-A
method and the A-to-T method” and that Samsung’s margin had moved
across 	the 	de 	minimis 	threshold 	(citations 	omitted; 	emphasis 	in
original)); Apex, supra, 38 CIT at ___, 37 F.Supp.3d at 1299-1300
(holding 	that 	ITA 	reasonably 	concluded 	that 	the 	A-A 	methodology
could 	not 	account 	for 	targeting 	where 	plaintiff’s 	margin 	crossed
the de minimis threshold), aff’d, 862 F.3d at 1323-24. 	The Stanley
argument does not persuade that this is an unreasonable approach to
fulfilling the statute’s aim of combating masked dumping.
In AR5, ITA concluded that the A-A methodology could not
account 	for 	the 	difference 	in 	the 	pattern 	of 	prices 	once 	a
meaningful difference existed between that methodology and the A-T
approach 	when 	the 	Stanley 	weighted-average 	dumping 	margin 	moved
above 	the 	de 	minimis 	threshold. 	And, 	as 	in 	Apex 	and 	Samsung,
Stanley 	does 	not 	show 	that 	the 	meaningful 	difference 	was
immaterial.
(vii)
The Stanley plaintiffs allege that ITA use of the Cohen
d test is biased toward finding prices that differ significantly,
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leading 	it 	to 	overuse 	the 	A-T 	method. 	The 	argument 	appears 	to
conflate passing the d test with application of the A-T comparison
methodology, which requires that ITA find not only that a pattern
of 	prices 	that 	differ 	significantly 	exists 	but 	also 	that 	the 	A-A
methodology 	cannot 	account 	for 	such 	differences. 	Each 	of 	these
provisions requires a separate analysis, with distinct results, and
both 	must 	be 	satisfied 	to 	apply 	an 	alternative 	comparison
methodology. 	Moreover, 	Stanley 	citations 	to 	instances 	when
respondents’ sales passed Cohen’s d test without discussing whether
ITA applied an alternative comparison methodology, Stanley Brief at
39-40, 	illustrate 	only 	that 	the 	respondents’ 	pricing 	behavior
exhibited certain significant differences in prices. 	See IDM at 37
(stating that both requirements under the statute must be satisfied
before applying an alternative comparison methodology and that the
Stanley analysis is concerned with and limited to only the first of
the 	two 	requirements). 	These 	instances 	do 	not 	show 	whether 	ITA
applied an alternative comparison methodology or whether it found
that the respondents sold subject merchandise at less than normal
value.
The 	Stanley 	plaintiffs 	also 	fail 	to 	appreciate 	the
difference 	between 	sales 	found 	to 	be 	at 	significantly 	different
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prices 	as 	opposed 	to 	whether 	ITA 	has 	applied 	an 	alternative
comparison 	methodology 	to 	address 	masked 	dumping. 	They 	connect
high 	rates 	of 	sales 	passing 	Cohen’s 	d 	test 	to 	dumping. 	A 	high
passing 	rate, 	however, 	does 	not 	mean 	that 	the 	A-A 	methodology
cannot account for such differences (i.e., whether or not dumping
even 	exists 	or 	is 	being 	masked). 	As 	ITA 	explained, 	“[b]oth
requirements 	of 	section 	1677f-1(d)(1)(B) 	of 	the 	Act 	must 	be
satisfied 	before 	[it] 	has 	the 	option 	of 	applying 	an 	alternative
comparison method in less-than-fair-value investigations.” 	IDM at
37-38. 	As such, even if a large proportion of U.S. sales pass the
d test, ITA does not automatically apply the A-T method. 	Id. 	It
must 	also 	consider 	whether 	the 	A-A 	method 	can 	account 	for 	such
differences and, if the standard comparison methodology can account
for 	such 	differences, 	ITA 	will 	not 	apply 	an 	alternative
methodology. 	See id.
In other words, a finding that there exists a pattern of
prices that differ significantly means only that ITA will consider
whether 	the 	standard 	comparison 	methodology 	can 	account 	for 	the
differences. 	Subject merchandise can be sold in the United States
market at significantly different prices yet none of the sales are
priced 	at 	less 	than 	normal 	value 	(i.e., 	there 	is 	no 	dumping); 	in
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such 	a 	situation, 	the 	A-A 	method 	will 	be 	able 	to 	account 	for 	the
differences, 	and 	that 	method 	will 	be 	used 	to 	calculate 	any
weighted-average 	margin. 	A 	firm 	can 	also 	make 	those 	same 	U.S.
sales at significantly different prices among purchasers, regions,
or 	time 	periods 	at 	prices 	which 	are 	all 	less 	than 	normal 	value
(i.e., all sales are dumped); in such a situation, the A-A method
also will be able to account for such differences, and thus, that
method can, again, be used. 	Thus, even if there is a high Cohen’s
d pass rate, it is meaningless without consideration of whether the
A-A 	method 	can 	account 	for 	the 	differences. 	See 	id. 	at 	38; 	19
U.S.C. §1677f-1(d)(1)(B)(ii).
(viii)
ITA 	reiterated 	the 	importance 	of 	both 	lower 	and 	higher
priced 	sales 	in 	masked 	dumping, 	noting 	that 	“higher 	priced 	sales
are 	equally 	capable 	as 	lower 	priced 	sales 	to 	create 	a 	pattern 	of
prices 	that 	differ 	significantly.” 	IDM 	at 	38. 	The 	Stanley
plaintiffs 	disagree 	that 	“high” 	and 	“low” 	priced 	sales 	are
appropriate considerations when conducting Cohen’s d test.
They argue that ITA may not find that higher priced sales
pass 	that 	test 	and 	are 	part 	of 	a 	pattern 	of 	prices 	that 	differ
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significantly, 	but 	“high” 	and 	“low” 	are 	relative 	terms, 	and 	they
concede that the statute is silent as to this issue, providing only
that 	the 	agency 	must 	determine 	whether 	a 	pattern 	of 	prices 	that
differ significantly exists. 	The statute does not specify whether
ITA 	may 	or 	may 	not 	consider 	prices 	that 	differ 	because 	they 	are
higher 	or 	lower. 	See 	19 	U.S.C. 	§1677f-1(d)(1)(B) 	(alternative
methodology 	may 	be 	applied 	if 	(i) 	“there 	is 	a 	pattern 	of 	export
prices . . . for comparable merchandise that differ significantly
among 	purchases, 	regions, 	or 	periods 	of 	time, 	and 	(ii) 	[ITA]
explains why such differences cannot be taken into account” using
the A-A methodology).
Finding 	no 	explicit 	statutory 	support, 	the 	Stanley
plaintiffs 	look 	to 	the 	SAA, 	which 	they 	interpret 	to 	mean 	that
targeting and dumping are linked in the statute and, thus, ITA is
only 	authorized 	to 	consider 	dumped 	prices. 	But 	the 	SAA 	does
discuss both “dumped prices” and “higher prices”, as Stanley itself
notes: 	“[t]he 	SAA 	explains 	that 	‘targeted 	dumping’ 	comprises
‘situations 	[in 	which] 	an 	exporter 	may 	sell 	at 	a 	dumped 	price 	to
particular customers or regions, while selling at higher prices to
other customers or regions.’” Stanley Brief at 42, quoting SAA at
842 (emphasis deleted). 	Thus, the SAA acknowledges that “targeted
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dumping” includes sales which have been made at both “dumped” (or
lower) prices as well as higher prices, and high priced sales will
offset 	lower 	priced 	sales, 	“either 	implicitly 	through 	the
calculation of a weighted-average sale price for a [United States]
averaging group, or explicitly through the granting of offsets when
aggregating the A-to-A comparison results, that can mask dumping”.
IDM 	at 	38. 	In 	other 	words, 	higher 	and 	lower 	priced 	sales 	do 	not
operate independently: in theory at least all sales are relevant to
the analysis, and nothing in the statute or the SAA precludes ITA
from 	reviewing 	both 	higher 	and 	lower 	priced 	sales. 	See 	id. 	at
38-39.
(ix)
Additionally, 	the 	Stanley 	plaintiffs 	challenge 	the
calculation of the measure which ITA uses to gauge the effect size,
i.e., 	the 	Cohen 	d 	coefficient. 	To 	calculate 	the 	effect 	size, 	it
uses 	the 	“pooled 	standard 	deviation,” 	which 	is 	based 	on 	the
distribution of the prices between the test and comparison groups,
because it “reflects the dispersion, or variance, of prices within
each of the two groups.” 	IDM at 36. 	The consolidated-plaintiffs
contend that the use of a pooled standard deviation leads to a bias
for finding high Cohen d pass rates. 	See Stanley Brief at 39 (“ITA
incorrectly calculated the pooled standard deviation in the Cohen
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d statistic -- generating an upward bias in the ‘pass’ rate -- by
giving 	equal 	weight 	to 	the 	squared 	standard 	deviations 	of 	the
‘target’ and ‘comparison’ price groups despite clear evidence that
the 	target 	groups 	were 	much 	smaller 	in 	volume 	and 	the 	standard
deviations of the target and comparison groups were not equal”).
But 	once 	again, 	there 	is 	no 	statutory 	directive 	with
respect 	to 	how 	ITA 	determines 	whether 	a 	pattern 	of 	prices 	that
differ significantly exists, let alone how to calculate the pooled
standard deviation of the Cohen d coefficient. 	See Certain Frozen
Warmwater 	Shrimp 	From 	the 	Socialist 	Republic 	of 	Vietnam, 	80
Fed.Reg. 55328 (Sept. 15, 2015), and accompanying I&D memo at 27.
ITA has generally relied on a reasonable and predictable approach
by 	using 	a 	simple 	average 	when 	determining 	the 	pooled 	standard
deviation. 	E.g., 	id. 	By 	giving 	equal 	weight 	to 	the 	test 	and
comparison 	groups, 	ITA 	balances 	the 	importance 	of 	the 	exporter’s
pricing behavior to a given purchaser, region, and time period, and
the exporter’s pricing behavior to other purchasers, regions, and
time periods. 	This implies that the magnitude of the sales to one
group does not skew the outcome. 	See id.
Furthermore, as discussed above, even when a majority of
a respondent’s sales pass the Cohen d test, this does not end ITA’s
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analysis in determining whether to apply an alternative methodology
when 	calculating 	its 	weighted-average 	dumping 	margin. 	See 	IDM 	at
38. 	The 	agency 	must 	also 	consider 	and 	explain 	why 	the 	A-A
comparison method cannot account for such differences, in order to
satisfy 	both 	requirements 	under 	section 	1677f-1(d)(1)(B) 	of 	the
Act, 	and 	only 	then 	does 	ITA 	consider 	the 	application 	of 	the 	A-T
method. 	Id.
The Stanley plaintiffs attempt to validate their claim on
the supposed bias of the Cohen d test by pointing to the outcomes
of 150 preliminary determinations in which a differential pricing
analysis 	was 	employed. 	See 	Stanley 	Administrative 	Case 	Brief 	at
33-34 and Addendum A.16 	However, the Stanley data and analysis fail
to 	establish 	(1) 	that 	a 	bias 	exists 	among 	those 	preliminary
determinations and (2) how any potential bias would be attributable
to 	ITA’s 	calculation 	of 	the 	pooled 	standard 	deviation 	based 	on 	a
simple average of the variances of the test and comparison groups.
See IDM at 37.
16 	The 	Stanley 	brief 	at 	bar 	cites 	an 	expanded data set
covering 	209 	respondents 	through 	September 	2015. 	See 	p. 	40,
Addendum B. The defendant requests that this expanded data set be
ignored, as it was not submitted to ITA during the administrative
process 	and 	is 	therefore 	not 	part 	of 	the 	record 	for 	this
administrative review per 19 U.S.C. § 1516a(b)(1)(B)(i). 	It is so
ordered.
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Consol. Court No. 15-00109 	Page 55
The 	Stanley 	data 	fail 	to 	demonstrate 	a 	bias 	in 	ITA’s
application 	of 	the 	Cohen 	d 	test. 	They 	show 	that 	113 	of 	the 	150
cases cited involved a sufficient percentage of sales value passing
the d test to consider the application of an alternative comparison
methodology. 	See Stanley Administrative Case Brief at Addendum A.
Of 	these, 	ITA 	applied 	the 	A-T 	method 	in 	only 	50 	of 	the
determinations. 	From Stanley’s own data, accordingly, there does
not 	appear 	to 	exist 	a 	bias 	in 	the 	agency’s 	application 	of 	the
differential pricing analysis including Cohen’s d test based on the
use 	of 	a 	simple 	average 	in 	determining 	the 	pooled 	standard
deviation. 	Only 	one-third 	of 	the 	cases 	to 	which 	Stanley 	cites
resulted 	in 	the 	application 	of 	an 	alternative 	comparison
methodology, representing less than one-half of the cases in which
there 	existed 	a 	pattern 	of 	prices 	that 	differ 	significantly
pursuant to the Cohen d and ratio tests.
The 	Stanley 	argument, 	to 	wit, 	“the 	conclusion 	that 	two
companies 	targeted 	all 	of 	their 	sales 	underscores” 	the
unreasonableness 	of 	differential 	pricing 	because 	“it 	makes 	no
economic sense for any one company to ‘target’ the majority of its
sales,” 	Stanley 	Brief 	at 	40, 	and 	because 	“if 	all 	sales 	are
‘targeted,’ then none can be,” Stanley Administrative Case Brief at
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Consol. Court No. 15-00109 	Page 56
33, expresses a misappreciation of how ITA determines the existence
of 	a 	pattern 	of 	export 	prices 	that 	differs 	significantly 	among
purchasers, 	regions, 	or 	time 	periods. 	The 	focus 	is 	not 	on
“targeting” 	and 	economic 	decision-making, 	but 	on 	the 	difference
between 	export 	prices. 17 	While 	Stanley 	pointed 	to 	a 	single 	case
where all of the respondent’s sales prices differed significantly,
there are also 16 cases in the data where none of the sales prices
did so, indicating that ITA’s approach is not unreasonable and does
not 	exhibit 	a 	bias. 	In 	other 	words, 	the 	phenomenon 	to 	which
Stanley 	points 	as 	proof 	of 	bias 	is 	controverted 	by 	its 	opposite,
i.e., that no sales pass the Cohen d test. 	Accordingly, Stanley’s
own 	data 	indicate 	that, 	if 	anything, 	there 	is 	a 	tendency 	against
finding 	a 	pattern 	of 	prices 	that 	differ 	significantly 	across
purchasers, regions, or time periods.
17 	For 	example, 	consider 	two 	purchasers, 	A 	and 	B. If the
prices 	to 	purchaser 	A 	are 	found 	to 	differ 	significantly 	from 	the
prices to purchaser B, then it follows that the prices to purchaser
B differ significantly from the prices to purchaser A. 	Here, it is
reasonable 	to 	conclude 	that 	all 	prices 	differ 	significantly.
Similarly, if the prices to purchaser A do not differ significantly
from the prices to purchaser B, then it follows that the prices to
purchaser 	B 	do 	not 	differ 	significantly 	from 	the 	prices 	to
purchaser A. 	Here, it is reasonable to conclude that none of the
prices differ significantly.
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Consol. Court No. 15-00109 	Page 57
(x)
The 	Stanley 	plaintiffs 	press 	a 	number 	of 	additional
arguments, none of which is persuasive.
First, 	their 	argument 	that 	the 	“meaningful 	difference”
element of the Cohen d test has the perverse effect of allowing a
respondent 	to 	avoid 	the 	A-T 	method 	with 	zeroing 	if 	all 	its 	sales
are dumped, gaining a lower margin than if only some of its sales
are 	dumped, 	lacks 	merit. 	If 	all 	of 	a 	respondent’s 	sales 	are
dumped, 	then 	there 	is 	no 	zeroing 	because 	there 	are 	no 	sales 	that
are not dumped, and the weighted-average dumping margin calculated
using 	the 	A-A 	and 	A-T 	method 	is 	identical. 	If 	only 	some 	of 	a
respondent’s 	sales 	are 	dumped, 	the 	calculated 	weighted-average
dumping margin will be reduced, reflecting the fact that there is
less 	dumping 	overall, 	regardless 	of 	whether 	or 	not 	zeroing 	is
applied 	to 	the 	non-dumped 	sales. 	Accordingly, 	it 	is 	unclear 	how
the 	respondent 	would 	gain 	a 	lower 	dumping 	margin 	if 	all 	of 	its
sales were dumped. 	Stanley erroneously associates the possible use
of 	zeroing 	with 	always 	reducing 	the 	weighted-average 	dumping
margin, and draws an unsupportable conclusion.
Second, the Stanley plaintiffs argue that ITA’s approach
is 	mechanical 	and 	rote, 	contrary 	to 	Congress’s 	intent 	that 	an
analysis 	to 	detect 	masked 	dumping 	be 	conducted 	on 	a 	case-by-case
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Consol. Court No. 15-00109 	Page 58
basis. 	But 	the 	agency 	does 	examine 	whether 	the 	statutory
requirements 	have 	been 	satisfied 	on 	a 	case-by-case 	basis. 	It
reviews the individual pricing behavior of each respondent when it
conducts a differential pricing analysis. 	Its analysis begins by
examining the extent to which a respondent’s sales pass the Cohen
d test, and whether a group of sales passes that test is measured
relative to the “pooled standard deviation” discussed above, which
specifically 	reflects 	the 	pricing 	behavior 	of 	each 	individual
respondent. 	Then, 	ITA 	determines 	whether 	the 	differences 	in
respondent’s prices, based on purchaser, time period, and region,
can be accounted for using the A-A methodology, which is directly
related to the respondent’s dumping in the U.S. market and whether
such dumping is masked. 	See IDM at 41 (“[o]n a case-by-case basis,
[ITA] also considers the factual information and arguments on the
record for each segment of a proceeding”).
Furthermore, ITA considers arguments from parties in each
segment of a proceeding concerning whether its approach should be
modified. 	See 	PDM 	at 	17 	(“[i]nterested 	parties 	may 	present
arguments 	and 	justification 	in 	relation 	to 	the 	above-described
differential 	pricing 	approach 	used 	in 	these 	preliminary 	results,
including 	arguments 	for 	modifying 	the 	group 	definitions 	used 	in
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Consol. Court No. 15-00109 	Page 59
this 	proceeding”). 	For 	example, 	in 	the 	2011-2012 	administrative
review of copper tubing from the PRC, the agency modified the time
periods used in the Cohen d test. 	See Seamless Refined Copper Pipe
and 	Tube 	From 	the 	PRC, 	79 	Fed.Reg. 	23324 	(April 	28, 	2014), 	and
accompanying I&D memo at 13-14.
The defendant contends that not only does ITA review the
specific circumstances of a respondent, it continues to expand its
experience and alter its method as it applies the methodology, see
IDM at 41, and that the agency reviewed Stanley sales to determine
which 	passed 	the 	Cohen 	d 	test, 	compared 	Stanley 	weighted-average
dumping margins calculated using the A-A methodology and the mixed
alternative methodology to determine whether the significant price
differences 	based 	on 	purchaser, 	period, 	and 	region, 	could 	be
accounted 	for 	by 	the 	A-A 	methodology, 	and 	found 	that 	the 	A-A
methodology 	did 	not 	account 	for 	such 	differences. 	See 	IDM 	at
30-31. 	To the extent ITA’s application of the differential pricing
analysis was tailored to Stanley, it was not mechanical; and even
if the Cohen d test itself may be inferred mechanistic, that does
not, ipse dixit, make it unlawful, or else all calculations would
be.
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Consol. Court No. 15-00109 	Page 60
Third, the Stanley plaintiffs challenge ITA’s continued
use of sales that have been found to pass the Cohen d test in the
base group of other comparisons. 	But as stated in the Preliminary
Results, 	the 	purpose 	of 	that 	test 	is 	“to 	evaluate 	the 	extent 	to
which 	the 	net 	prices 	to 	a 	particular 	purchaser, 	region, 	or 	time
period differ significantly from the net prices of all other sales
of 	comparable 	merchandise.” 	PDM 	at 	16. 	Simply 	because 	certain
sale prices are part of a test group in one instance and part of a
comparison 	group 	in 	other 	instances 	does 	not 	constitute 	double
counting; agency dumping analysis includes all information and data
on the record, and selectively including or excluding certain sales
is not supported by the statute.
Furthermore, the inclusion of sales that “pass” the Cohen
d test in base groups for other test groups does not cause sales to
“pass” 	that 	otherwise 	would 	not. 	The 	Stanley 	assertion 	to 	the
contrary is refutable through the use of a hypothetical scenario:
[T]here are two purchasers, A and B, which purchase the
subject 	merchandise 	at 	average 	prices 	of 	10 	and 	20,
respectively. Based on the Cohen’s d Test, when testing
purchaser 	A, 	the 	weighted-average 	price 	to 	purchaser 	B
will be the comparison group, and the difference in the
two prices between purchaser A and purchaser B, i.e., 10,
is found to pass the Cohen’s d Test. Then, when purchaser
B is the test group, purchaser A will be the comparison
group, and the sales to purchaser B will also be found to
pass the Cohen’s d Test.
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Consol. Court No. 15-00109 	Page 61
IDM at 41-42. If the weighted-average price to purchaser A differs
significantly from the weighted-average price to purchaser B, the
weighted-average 	price 	to 	purchaser 	B 	also 	differs 	significantly
from 	the 	weighted-average 	price 	to 	purchaser 	A. 	The 	Stanley
suggestion (that once ITA finds that the weighted-average price to
purchaser A differs significantly from the weighted-average price
to purchaser B, the sales prices to purchaser A should be excluded
henceforth from the analysis) appears illogical, as it would result
in 	no 	comparison 	being 	made 	for 	the 	weighted-average 	price 	to
purchaser B because sales to purchaser A would not be allowed to be
a basis for comparison. Further, if purchaser B’s sales were tested
first, purchaser A’s sales would not be tested for the same reason,
and 	such 	an 	approach 	would 	lead 	to 	arbitrary 	and 	unpredictable
results 	that 	would 	depend 	upon 	the 	order 	in 	which 	purchasers,
regions, or time periods were examined.
Fourth, the Stanley plaintiffs contend that the Cohen d
test 	prevents 	respondents 	from 	refraining 	from 	engaging 	in
“targeted dumping.” 	They claim that high pass rates for that test
make 	it 	difficult 	to 	“avoid 	being 	found 	‘guilty’ 	of 	targeted
dumping.” 	But that test alone does not determine whether ITA will
apply an alternative comparison methodology. 	See IDM at 37-38.
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Consol. Court No. 15-00109 	Page 62
Lastly, the consolidated-plaintiffs challenge agency use
of net prices rather than gross prices when examining if a pattern
of prices differs significantly. 	Their specific contention is that
ITA 	fails 	to 	account 	for 	circumstances 	of 	sale 	that 	cause 	net
prices to vary, and that such circumstances are exogenous factors
that do not affect a respondent’s pricing behavior but are beyond
its control because of differences in selling circumstances. 	The
defendant contends ITA uses net prices to address all circumstances
of sale, deducting the associated expenses from the reported gross
unit 	prices 	which 	are 	used 	in 	the 	Cohen 	d 	test 	and 	that 	the
suggestion 	that 	circumstances 	of 	sale 	do 	not 	affect 	the 	pricing
behavior 	of 	a 	respondent 	is 	misleading. 	The 	defendant 	explains
that respondents will generally account for costs such as freight,
packing, 	and 	direct 	selling 	expenses 	in 	their 	pricing 	decisions,
and that, when a dumping margin is calculated, it is based on net
prices. 	For 	that 	reason, 	the 	defendant 	continues, 	ITA 	deems 	it
appropriate 	to 	examine 	whether 	there 	is 	a 	“differ 	significantly”
pattern based on net prices, because such examination later informs
agency margin calculation. 	See IDM at 37 (“[ITA] finds that it is
appropriate 	and 	reasonable 	that 	its 	examination 	of 	a 	pattern 	of
prices that differ significantly to be based on net prices rather
than 	gross 	prices, 	as 	net 	prices 	are 	the 	basis 	used 	to 	calculate
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Consol. Court No. 15-00109 	Page 63
dumping margins and determine a respondent’s amount of dumping”).
As 	this 	appears 	to 	implement 	the 	intent 	of 	the 	statute 	and 	the
regulations, where the purpose of a differential pricing analysis
is 	to 	determine 	whether 	the 	A-A 	comparison 	methodology 	is 	the
appropriate 	tool 	with 	which 	to 	measure 	a 	respondent’s 	dumping 	in
the 	U.S. 	market, 	see 	19 	C.F.R. 	§351.414(c)(1), 	this 	court 	cannot
fault defendant’s rationale.
In sum, with the exception of section III.C, supra, the
Stanley plaintiffs have not established that ITA’s utilization of
its 	differential 	pricing 	analysis 	was 	out 	of 	order. 	See 	Apex
Frozen Foods Private Ltd. v. United States, 862 F.3d 1322 and 862
F.3d 1337 (Fed.Cir. 2017), passim.
IV
In 	view 	of 	the 	foregoing, 	the 	motions 	of 	the 	plaintiff
and the consolidated-plaintiffs for judgment on the agency record18
can 	be 	granted 	only 	to 	the 	extent 	of 	remand 	to 	ITA 	for
reconsideration of the issues of (1) the two labor classification
18 	The quality of the papers submitted in support, as well
as 	of 	those 	presented 	in 	opposition, 	obviated 	any 	need 	to 	burden
the parties with oral argument, and their motion therefor, for the
record, is thus hereby denied.
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matters, 	as 	discussed 	in 	section 	II.E, 	supra, 	(2) 	the 	apparent
omission, in the Stanley February 17, 2015 post-verification factor
of 	production 	database, 	of 	a 	zero 	in 	the 	tenth 	or 	one-hundredth
decimal 	place 	in 	field 	“V_DLCROD”, 	as 	discussed 	in 	section 	III.A
above, and (3) the application of the limiting rule, as discussed
in section III.C, supra.
The 	results 	of 	this 	remand 	shall 	be 	filed 	on 	or 	before
November 30, 2017, with any comments thereon due within 30 days of
the filing thereof.
So ordered.
Dated: 	New York, New York
September 6, 2017
__/s/ 	Thomas J. Aquilino, Jr.__________
Senior Judge
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