Marmen Inc. et al v. United States

Slip Op. 21-148
UNITED STATES COURT OF INTERNATIONAL TRADE
MARMEN INC., MARMEN
ÉNERGIE INC., and MARMEN
ENERGY CO.,
Plaintiffs,
and
WIND TOWER TRADE
COALITION,
Consolidated Plaintiff,
v.
UNITED STATES,
Defendant,
and
WIND TOWER TRADE
COALITION, MARMEN INC.,
MARMEN ÉNERGIE INC., and
MARMEN ENERGY CO.,
Defendant-Intervenors.
Before: Jennifer Choe-Groves, Judge
Consol. Court No. 20-00169
OPINION AND ORDER
[Sustaining in part and remanding in part the U.S. Department of Commerce’s
final affirmative determination in the 2018–2019 antidumping duty investigation
on utility scale wind towers from Canada.]
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Dated: October 22, 2021
Jay C. Campbell, Allison J.G. Kepkay, Ron Kendler, and Ting-Ting Kao, White &
Case, LLP, of Washington, D.C., for Plaintiffs and Defendant-Intervenors Marmen
Inc., Marmen Energy Co., and Marmen Energie Inc.
Alan H. Price, Daniel B. Pickard, Robert E. DeFrancesco, III, Maureen E. Thorson,
and Laura El-Sabaawi, Wiley Rein, LLP, of Washington, D.C., for Consolidated
Plaintiff and Defendant-Intervenor Wind Tower Trade Coalition.
Joshua E. Kurland, Trial Attorney, Commercial Litigation Branch, U.S.
Department of Justice, of Washington, D.C., for Defendant United States. With
him on the brief were Brian M. Boynton, Acting Assistant Attorney General, and
Jeanne E. Davidson, Director. Of counsel on the brief were Kirrin A. Hough,
Attorney, and Natalie M. Zink, Attorney, Office of the Chief Counsel for Trade
Enforcement and Compliance, U.S. Department of Commerce.
Choe-Groves, Judge: Plaintiffs Marmen Inc., Marmen Energy Co., and
Marmen Energie Inc. (collectively, “Marmen”) and Consolidated Plaintiff Wind
Tower Trade Coalition (“WTTC”) filed this consolidated action challenging the
final determination published by the U.S. Department of Commerce (“Commerce”)
in the antidumping duty investigation on utility scale wind towers from Canada.
See Utility Scale Wind Towers from Canada (“Final Determination”), 85 Fed. Reg.
40,239 (Dep’t of Commerce July 6, 2020) (final determination of sales at less than
fair value and final negative determination of critical circumstances; 2018–2019);
see also Issues and Decision Mem. for the Final Affirmative Determination in the
Less-Than-Fair-Value Investigation of Utility Scale Wind Towers from Canada
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(June 29, 2020) (“Final IDM”), ECF No. 18-5. Before the Court are the Rule 56.2
Motion for Judgment on the Agency Record on Behalf of Plaintiffs Marmen Inc.,
Marmen Energie Inc., and Marmen Energy Co., ECF Nos. 23, 24, and Wind Tower
Trade Coalition’s Rule 56.2 Motion for Judgment on the Agency Record, ECF
Nos. 25, 26. See also Mem. P. & A. Supp. Pls.’ Rule 56.2 Mot. J. Agency R.
(“Marmen’s Br.”), ECF Nos. 23-2, 24-2; Wind Tower Trade Coalition’s Mem.
Supp. Rule 56.2 Mot. J. Agency R. (“WTTC’s Br.”), ECF Nos. 25-1, 26-1. For the
following reasons, the Court sustains in part and remands in part the Final
Determination.
ISSUES PRESENTED
The Court reviews the following issues:
1. 	Whether Commerce’s determination to weight-average product-
specific plate costs is supported by substantial evidence;
2. 	Whether Commerce’s determination to reject Marmen’s additional
cost reconciliation information was an abuse of discretion;
3. 	Whether Commerce’s determination to apply an average-to-
transaction comparison method is supported by substantial evidence;
4. 	Whether Commerce’s determination regarding the home market and
the U.S. date of sale is supported by substantial evidence;
5. 	Whether Commerce’s determination to treat Marmen’s home market
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sales as being sales of tower sections rather than complete towers is
supported by substantial evidence; and
6. 	Whether Commerce’s determination not to apply facts otherwise
available with an adverse inference is supported by substantial
evidence.
BACKGROUND
In August 2019, Commerce initiated an antidumping duty investigation into
wind towers from Canada for the period covering July 1, 2018 through June 30,
2019. Utility Scale Wind Towers from Canada, Indonesia, the Republic of Korea,
and the Socialist Republic of Vietnam, 84 Fed. Reg. 37,992, 37,992–93 (Dep’t of
Commerce Aug. 5, 2019) (initiation of less-than-fair-value investigations).
Commerce selected Marmen Inc. and Marmen Energie Inc. as mandatory
respondents. See Decision Mem. for the Prelim. Determination in the Less-Than-
Fair-Value Investigation of Utility Scale Wind Towers from Canada (Feb. 4, 2020)
(“Prelim. DM”) at 1–2, PR 146. 1
In the Final Determination, Commerce assigned weighted-average dumping
1 Citations to the administrative record reflect public record (“PR”) document
numbers.
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margins of 4.94% to Marmen Inc. and Marmen Energie Inc. 2 Final Determination,
85 Fed. Reg. at 40,239. Commerce determined the all-others weighted average
dumping margin of 4.94% based on Marmen’s dumping margin. Id.
Commerce determined that Marmen’s steel plate costs did not reasonably
reflect the costs associated with the production and sale of the products and
weight-averaged Marmen’s reported steel plate costs. Final IDM at 4–6.
Commerce rejected a portion of the supplemental cost reconciliation information
submitted by Marmen as untimely, unsolicited new information. Id. at 7–9.
Commerce applied a differential pricing analysis, using the Cohen’s d test, and
determined that there was a pattern of export prices that differed significantly. Id.
at 10–11. As a result, Commerce calculated Marmen’s weighted-average dumping
margin by using the alternative average-to-transaction method. Id. Commerce
determined that Marmen complied with its instructions by reporting invoice dates
as the home market and U.S. dates of sale and by reporting home market sales as
sales of wind tower sections. Id. at 13–18. Further, Commerce determined that the
record contained the necessary information to calculate Marmen’s dumping margin
2 The Court notes that, although Marmen Energy Co. was not included as a
mandatory respondent alongside Marmen Inc. and Marmen Energie Inc.,
comments and questionnaire responses were submitted collectively by the three
Plaintiffs during Commerce’s investigation. The Court herein refers to their
assigned weighted-average dumping margins collectively as “Marmen’s dumping
margin.”
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and relied on the data provided by Marmen, declining to apply facts otherwise
available or an adverse inference. Id. at 18–20.
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(i) and 28
U.S.C. § 1581(c), which grant the Court authority to review actions contesting the
final determination in an antidumping duty investigation. The Court shall hold
unlawful any determination found to be unsupported by substantial evidence on the
record or otherwise not in accordance with the law. 19 U.S.C. § 1516a(b)(1)(B)(i).
DISCUSSION
I. 	Commerce’s Determination to Weight-Average Marmen’s Steel
Plate Costs
In order to determine whether certain products are being sold at less than fair
value in the United States, Commerce compares the export price, or constructed
export price, with normal value. 19 U.S.C. § 1677b(a)(1)(A). Export price or
constructed export price is the price at which the subject merchandise is being sold
in the U.S. market, while normal value is the price at which a “foreign like
product” is sold in the producer’s home market or in a comparable third-country
market. Id. § 1677a(a)–(b). Before calculating a dumping margin, Commerce
must identify a suitable “foreign like product” with which to compare the exported
subject merchandise. A “foreign like product,” in order of preference, is:
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(A) 	The 	subject 	merchandise 	and 	other 	merchandise 	which 	is
identical in physical characteristics with, and was produced in
the same country by the same person as, that merchandise.
(B) 	Merchandise —
(i) 	produced in the same country and by the same person as
the subject merchandise,
(ii) 	like that merchandise in component material or materials
and in the purposes for which used, and
(iii) 	approximately equal in commercial value to the subject
merchandise.
(C) 	Merchandise —
(i) 	produced in the same country and by the same person and
of 	the 	same 	general 	class 	or 	kind 	as 	the 	subject
merchandise,
(ii) 	like that merchandise in the purposes for which used, and
(iii) 	which 	the 	administering 	authority 	determines 	may
reasonably be compared with that merchandise.
Id. § 1677(16); see NSK Ltd. v. United States, 26 CIT 650, 656, 217 F. Supp. 2d
1291, 1299–1300 (2002). To identify such merchandise, Commerce employs a
“model match” methodology consisting of a hierarchy of certain characteristics
used to sort merchandise into groups. See SKF USA, Inc. v. United States, 537
F.3d 1373, 1378–80 (Fed. Cir. 2008). Each group is assigned a control number
(“CONNUM”), used to match home market sales with U.S. sales. See Thuan An
Prod. Trading & Serv. Co. v. United States, 42 CIT __, __, 348 F. Supp. 3d 1340,
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1344 n.7 (2018).
When determining costs of production, the statute states that:
[c]osts shall normally be calculated based on the records of the exporter
or producer of the merchandise, if such record are kept in accordance
with the generally accepted accounting principles [“GAAP”] of the
exporting country (or the producing country, where appropriate) and
reasonably reflect the costs associated with the production and sale of
the merchandise.
19 U.S.C. § 1677b(f)(1)(A). The statute requires that “reported costs must
normally be used only if (1) they are based on the records . . . kept in accordance
with the GAAP and (2) reasonably reflect the costs of producing and selling the
merchandise.” See Dillinger France S.A. v. United States, 981 F.3d 1318, 1321
(Fed. Cir. 2020) (emphasis in original) (internal quotation marks and citations
omitted). Commerce is not required to accept the exporter’s records. Thai Plastic
Bags Indus. Co. v. United States, 746 F.3d 1358, 1365 (Fed. Cir. 2014) (citing 19
U.S.C. § 1677b(f)(1)(A)). Commerce may reject a company’s records if it
determines that accepting them would distort the company’s true costs. See Am.
Silicon Techs. v. United States, 261 F.3d 1371, 1377 (Fed. Cir. 2001). Commerce
is directed to consider all available evidence on the proper allocation of costs. 19
U.S.C. § 1677b(f)(1)(A). Physical characteristics are a prime consideration when
Commerce conducts its analysis. Thai Plastic Bags, 746 F.3d at 1368. If factors
beyond the physical characteristics influence the costs, however, Commerce will
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normally adjust the reported costs in order to reflect the costs that are based only
on the physical characteristics. See id.
To determine whether the subject merchandise wind towers from Canada
were sold in the United States at less than fair value under section 731 of the Tariff
Act of 1930, as amended, 19 U.S.C. § 1673, Commerce first considered all
products produced and sold by Marmen in Canada during the period of
investigation for the purpose of determining the appropriate product comparisons
to U.S. sales. Prelim. DM at 13; see also Final IDM at 2–3, 5–6. Commerce
determined that there were no sales of identical merchandise in the ordinary course
of trade in Canada that could be compared to U.S. sales. Prelim. DM at 13; see
also Final IDM at 5–6. Instead, Commerce applied a hierarchy of characteristics,
matching foreign like products based on physical characteristics reported by
Marmen in the following order of importance: type (tower or section), weight of
tower/section, height of tower/section, total sections, type of paint or coating,
metalizing, electrical conduit – bus bars, electrical conduit – power cable,
elevators, number of platforms, and other internal components. Prelim. DM at 13
(citing Product Characteristics for the Antidumping Duty Investigation of Utility
Scale Wind Towers from Canada (Sept. 17, 2019) (“Model Matching
Questionnaire”), PR 77); see also Final IDM at 5–6.
Commerce did not dispute whether Marmen’s records were kept properly,
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noting that “the record is clear that the reported costs are derived from the Marmen
Group’s normal books and records and that those books are in accordance with
Canadian GAAP.” Final IDM at 5; see also Utility Scale Wind Towers from
Canada: Resp. to Question 14.g of Suppl. Section Questionnaire (Dec. 13, 2019)
(“Marmen SDQR”) at 2–4, PR 123–25. Commerce focused on the second prong
of 19 U.S.C. § 1677b(f)(1)(A), calling into question whether Marmen reasonably
reflected the costs of producing and selling the merchandise. Commerce reviewed
evidence submitted by Marmen, concluding that the evidence demonstrated steel
plate cost differences between CONNUMs unrelated to the products’ physical
characteristics, and Commerce weight-averaged the reported steel plate costs for
all reported CONNUMs, except the CONNUM for the thickest plate. See Final
IDM at 5.
Marmen argues that differences in its reported costs were related to
differences in physical characteristics and that Commerce’s determination that
Marmen’s records did not reflect the costs associated with the production and sale
of products is not supported by substantial evidence. Marmen’s Br. at 15–16.
Marmen asserts that Commerce incorrectly determined that Marmen’s costs did
not reasonably reflect the costs associated with the production and sale of products.
See id. Marmen argues that Commerce should have used Marmen’s reported costs
and should not have weight-averaged the reported costs. Id.
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Commerce determined that the most significant physical characteristics in
differentiating costs of steel plate were type, thickness, weight, width, and height.
See Final IDM at 5. Commerce reviewed Marmen’s questionnaire response and
determined that Marmen’s suppliers did not charge different prices for plates of
different grade, thickness, width, or length. Id. (citing Utility Scale Wind Towers
from Canada: Resubmission of Second Suppl. Section D Resp. (Feb. 28, 2020)
(“Marmen RSSDQR”) at 2, Ex. D-2, PR 162–65). Commerce excluded the
CONNUM for the thickest plates because the record indicated that there was a
surcharge applied to high thickness plates that was not applied to lower thickness
plates. Id. at 5–6; see Cost of Production and Constructed Value Calculation
Adjustments for the Final Determination—Marmen Inc. and Marmen Energie Inc.
(June 29, 2020) (“Marmen Final Cost Calculation Mem.”) at 2, PR 194.
Commerce explained that there should be little difference in plate costs for
different dimensions and grade based on record evidence on a per-unit weight
basis, and that reported differences in plate costs are based on factors other than
physical differences, such as timing of production. See id. (citing Marmen
RSSDQR Ex. D-2). Commerce determined that most of the higher-priced
CONNUMs were sold earlier in the period of review, citing information in
Marmen’s Final Cost Calculation Memorandum. Id. at 6 (citing Marmen Final
Cost Calculation Mem. at 1). In the Marmen Final Cost Calculation
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Memorandum, Commerce relied on record evidence showing that Marmen’s steel
suppliers did not charge different prices for plates of different grade, thickness
width, or length. Marmen Final Cost Calculation Mem. at 2 (citing Marmen
RSSDQR at 2, Ex. D-2). Commerce determined, therefore, that differences in
plate prices were related to timing of production and factors other than differences
in physical characteristics. Final IDM at 6.
Based on its determination that differences in plate costs were related to
factors other than differences in the physical characteristics of the plates,
Commerce determined that Marmen’s records did not reflect the costs associated
with the production and sale of products. Id. As a result, Commerce determined
costs of production using the weight-average of the reported steel plate costs. Id.;
see Marmen Final Cost Calculation Mem. at 1–3.
Commerce’s stated practice is to adjust costs to address distortions when
cost differences are attributable to factors beyond differences in the physical
characteristics of such products, as required by statute. See Final IDM at 6;
Welded Carbon Steel Standard Pipe and Tube Products from Turkey, 82 Fed. Reg.
49,179 (Dep’t of Commerce Oct. 24, 2017) (final results of antidumping duty
admin. review and final determination of no shipments; 2015–2016). The Court
notes that the relevant statute and Commerce’s stated practice focus on whether
reported costs reasonably reflect the costs of producing and selling the
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merchandise—without requiring examined CONNUMs to be nearly identical. See
id.; 19 U.S.C. § 1677b(f)(1)(A). The Court concludes, therefore, that Commerce’s
weight-averaging of Marmen’s steel plate costs is consistent with the relevant
statute and Commerce’s stated practice.
The Court observes that Marmen’s questionnaire response and record
documents cited by Commerce, including one of Marmen’s supplier agreements,
indicate that plate costs did not vary for plates of different thickness, length, width,
and weight. See Marmen RSSDQR Exs. D-1, D-2. Record documents reviewed
by Commerce support the determination that Marmen’s suppliers did not charge
different prices for plates of varying physical characteristics, except to apply an
upcharge for plates over a certain thickness. See id. Ex. D-2. The Court notes that
record documents cited by Commerce support Commerce’s determination that a
majority of the higher-priced CONNUMs were sold earlier in the period of
investigation. See Marmen Final Cost Calculation Mem. Attachs. 1, 2. Because
record evidence cited by Commerce indicates that Marmen’s plate costs did not
differ between plates of varying physical characteristics and that higher priced
CONNUMs were sold earlier in the period of investigation, the Court concludes
that Commerce’s determination that differences in plate prices were related to
timing of production and factors other than differences in physical characteristics is
supported by substantial evidence.
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The Court concludes that Commerce followed statutory requirements and
Commerce’s stated practices, and supported with substantial evidence its
determination that Marmen’s records did not reasonably reflect the costs associated
with the production and sale of Marmen’s merchandise. The Court sustains
Commerce’s determination to weight-average Marmen’s steel plate costs.
II. 	Commerce’s Rejection of Marmen’s Additional Cost
Reconciliation Information
Commerce determined that a portion of Marmen’s cost reconciliation
information in Marmen’s February 7, 2020 response constituted untimely and
unsolicited new information and rejected Marmen’s submission. See Final IDM at
8–9. Marmen argues that the information was corrective, and not new, and that
Commerce abused its discretion by rejecting the correction. Marmen’s Br. at 26–
27.
A party may submit factual information to rebut, clarify, or correct
questionnaire responses. 19 C.F.R. § 351.301(c). The regulations state that
[i]f the factual information is being submitted to rebut, clarify, or
correct factual information on the record, the submitter must provide a
written explanation identifying the information which is already on the
record that the factual information seeks to rebut, clarify, or correct,
including 	the 	name 	of 	the 	interested 	party 	that 	submitted 	the
information and the date on which the information was submitted.
19 C.F.R. § 351.301(b)(2). The regulations outline time limits for submissions of
information to Commerce. See id. § 351.301(c). Section 351.301(c)(1)(v)
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discusses time limits for factual information submitted to correct or clarify
questionnaire responses by “an interested party other than the original submitter.”
Id. § 351.301(c)(1)(v). Section 351.301(c)(5) requires that miscellaneous new
factual information must be submitted either 30 days before the scheduled date of
the preliminary determination in an investigation, or 14 days before verification,
whichever is earlier. Id. § 351.301(c)(5). Commerce has the right to reject
information that is untimely or unsolicited. See 19 C.F.R. § 351.302(d).
Nevertheless, Commerce has a duty “to determine dumping margins as
accurately as possible.” See NTN Bearing Corp. v. United States, 74 F.3d 1204,
1208 (Fed. Cir. 1995) (internal quotation marks and citation omitted).
“[A]ntidumping laws are remedial not punitive.” Id. (citation omitted). The U.S.
Court of Appeals for the Federal Circuit has stated that “Commerce is obliged to
correct any errors in its calculations during the preliminary results stage to avoid an
imposition of unjustified duties.” Fischer S.A. Comercio, Industria & Agricultura
v. United States, 471 F. App’x 892, 895 (Fed. Cir. 2012) (citation omitted).
Further, “Commerce is free to correct any type of importer error—clerical,
methodology, substantive, or one in judgment—in the context of making an
antidumping duty determination, provided that the importer seeks correction before
Commerce issues its final determination and adequately proves the need for the
requested corrections.” Timken United States Corp. v. United States (“Timken”),
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434 F.3d 1345, 1353 (Fed. Cir. 2006). The Court reviews whether Commerce
abused its discretion when rejecting submitted information. See Papierfabrik
August Koehler SE v. United States, 843 F.3d 1373, 1384 (Fed. Cir. 2016)
(“Commerce abused its discretion in refusing to accept updated data when there
was plenty of time for Commerce to verify or consider it.”) (citations omitted).
When reviewing Commerce’s determination to reject corrective information, this
Court may consider factors such as Commerce’s interest in ensuring finality, the
burden of incorporating the information, and whether the information will increase
the accuracy of the calculated dumping margins. Bosun Tools Co. v. United
States, 43 CIT __, __, 405 F. Supp. 3d 1359, 1365 (2019) (citations omitted).
Marmen argues that the information submitted was a minor correction and
not new information. See Marmen’s Br. at 26–27. Marmen contends that
Commerce abused its discretion by rejecting the information. See id. Commerce
determined that the information was not responsive to its questionnaire and was
new factual information that had not been requested. See Final IDM at 8 (citing
Utility Scale Wind Towers from Canada: Second Suppl. Section D Resp. (Feb. 7,
2020) (“Marmen SSDQR”) Ex. D-9, PR 151–54).
The Court notes that the cost reconciliation information submitted by
Marmen in its February 7, 2020 response corresponded directly to prior cost
reconciliation information submitted in Marmen’s October 11, 2019 response. See
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Marmen SSDQR Ex. D-9; Utility Scale Wind Towers from Canada: Sections B, C,
and D Resp. (Oct. 11, 2019) (“Marmen SBCDR”) Ex. D-14, PR 89–97. The Court
observes that Marmen’s submission stated that the information updated purchase
information that had not been properly converted to Canadian dollars. See
Marmen SSDQR Ex. D-9. Commerce itself called Marmen’s submission a
“correction.” See Final IDM at 8–9. Because of Commerce’s own
characterization of the submission, and because the information directly
corresponds to a prior submission, the Court concludes that Commerce’s
determination that the additional cost reconciliation information submitted by
Marmen was new factual information is not supported by substantial evidence.
The Court concludes that Marmen’s submission is a correction and reviews
whether Commerce abused its discretion when rejecting Marmen’s submission.
When rejecting Marmen’s corrective submission, Commerce stated that
because it was submitted after the preliminary determination, the information was
submitted too late for Commerce to use. Id. at 9. This Court and the U.S. Court of
Appeals for the Federal Circuit have repeatedly held that Commerce must accept
corrections when there is sufficient time for Commerce to consider the submission
prior to the final determination. See, e.g., Timken, 434 F.3d at 1353–54 (holding
that the court did not err by remanding a case to Commerce for analysis of
corrective evidence that was submitted after the preliminary results but before the
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final results); Pro-Team Coil Nail Enter. v. United States, 43 CIT __, __, 419 F.
Supp. 3d 1319, 1332 (2019) (finding that finality concerns were not implicated
when the information was submitted eight months prior to publication of the final
results).
The information was submitted on February 7, 2020, approximately five
months before publication of the Final Determination. See Marmen SSDQR at 1.
The Court notes that Commerce cites no other reason for there being insufficient
time to consider Marmen’s submission other than the fact that the submission was
made after the preliminary determination. See Final IDM at 8–9. Because the
information was submitted to Commerce five months prior to the Final
Determination, the Court concludes that finality concerns are not implicated in this
case and rejects Commerce’s determination that the information was filed too late
to be considered.
The Court notes that Commerce stated summarily that Marmen’s submission
was “not supported by factual information on the record,” but did not point to
record evidence that contradicts the supplemental information submitted. See
Final IDM at 9. Absent record evidence indicating a reason to question the
veracity of Marmen’s cost reconciliation information, concerns over the accuracy
of the calculated dumping margin favor accepting Marmen’s submitted cost
reconciliation information. See Pro-Team Coil Nail, 43 CIT at __, 419 F. Supp. 3d
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at 1332. Record documents cited by Commerce indicate that Marmen’s cost
reconciliation worksheet stated prices in Canadian dollars. See Marmen SSDQR
Ex. D-9. The Court observes that record documents also indicate that, prior to
Marmen’s supplemental submission, Marmen had not converted one line of the
cost reconciliation sheet from U.S. dollars to Canadian dollars. See id. The Court
notes that Marmen explained that its submission corrected one line of the cost
reconciliation worksheet to properly list prices in Canadian dollars. See id. In
light of record evidence that supports Marmen’s corrective submission and its
explanation, and absent evidence questioning the veracity of the submission, the
Court concludes that Commerce has not supported with substantial evidence its
determination that Marmen’s supplemental cost reconciliation information is
inaccurate and, therefore, that Commerce abused its discretion by failing to
consider Marmen’s corrective submission.
The Court holds that Commerce’s determination to reject Marmen’s
supplemental cost reconciliation information was an abuse of discretion. The
Court remands Commerce’s determination for further explanation or consideration
in accordance with this opinion.
III. 	Commerce’s Use of an Average-to-Transaction Methodology
Commerce determined that its differential pricing analysis showed a pattern
of prices that differed significantly for Marmen’s U.S. sales of five CONNUMs
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that justified the use of an alternative average-to-transaction (“A-to-T”)
methodology to calculate Marmen’s dumping margin. See Final IDM at 11.
Marmen argues that Commerce’s application of its differential pricing analysis
methodology is unreasonable because there is not a significant difference in
Marmen’s U.S. prices and that, therefore, Commerce’s determination to use an A-
to-T method to calculate Marmen’s dumping margin is unreasonable and not
supported by substantial evidence. See Marmen’s Br. at 32–34.
Commerce ordinarily uses an average-to-average (“A-to-A”) comparison of
“the weighted average of the normal values [of subject merchandise] to the
weighted average of export prices (and constructed export prices) for comparable
merchandise” when calculating a dumping margin. See 19 U.S.C. § 1677f-
1(d)(1)(A)(i); 19 C.F.R. § 351.414(c)(1). The statute allows Commerce to depart
from using the A-to-A methodology and instead use an A-to-T comparison of the
weighted average of normal values to the export prices and constructed export
prices of individual transactions for comparable merchandise when: (1) Commerce
observes “a pattern of export prices (or constructed export prices) for comparable
merchandise that differ significantly among purchasers, regions, or periods of
time;” and (2) “[Commerce] explains why such differences cannot be taken into
account using [the A-to-A methodology].” 19 U.S.C. § 1677f-1(d)(1)(B)(i)–(ii).
In contrast to the A-to-A method, which may mask dumped sales at low prices by
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averaging them with sales at higher prices, the A-to-T method allows Commerce
“to identify a merchant who dumps the product intermittently—sometimes selling
below the foreign market value and sometimes selling above it.” Apex Frozen
Foods Priv. Ltd. v. United States, 862 F.3d 1337, 1341 (Fed. Cir. 2017) (citation
and internal quotation marks omitted).
The statute does not set forth the analysis for how Commerce is to identify a
pattern of price differences. See 19 U.S.C. §§ 1677, 1677f-1; see also Apex
Frozen Foods, 862 F.3d at 1346; Dillinger France S.A., 981 F.3d at 1325. The
Court affords Commerce deference in determinations “involv[ing] complex
economic and accounting decisions of a technical nature.” See Fujitsu Gen. Ltd. v.
United States, 88 F.3d 1034, 1039 (Fed. Cir. 1996) (citation omitted). However,
Commerce still “must [] explain [cogently] why it has exercised its discretion in a
given manner.” Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 48 (1983) (citation omitted).
Commerce uses a differential pricing analysis to determine if a pattern of
significant price differences exist and whether the difference can be taken into
account using the A-to-A method. See Final IDM at 11. The standard of review
for considering Commerce’s differential pricing analysis is reasonableness. Stupp
Corp. v. United States, 5 F.4th 1341, 1353 (Fed. Cir. 2021). The U.S. Court of
Appeals for the Federal Circuit and this Court have held the steps underlying the
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differential pricing analysis as applied by Commerce to be reasonable. See e.g.,
Mid Continent Steel & Wire, Inc. v. United States, 940 F.3d 662, 670–74 (Fed.
Cir. 2019) (discussing zeroing and the 0.8 threshold for the Cohen’s d test); Apex
Frozen Foods Priv. Ltd. v. United States, 40 CIT __, __, 144 F. Supp. 3d 1308,
1314–35 (2016) (discussing application of the A-to-T method, the Cohen’s d test,
the meaningful difference analysis, zeroing, and the “mixed comparison
methodology” of applying the A-to-A method and the A-to-T method when 33–
66% of a respondent’s sales pass the Cohen’s d test), aff’d, 862 F.3d 1337; Apex
Frozen Foods Priv. Ltd. v. United States, 862 F.3d 1322 (Fed. Cir. 2017)
(affirming zeroing and the 0.5% de minimis threshold in the meaningful difference
test). However, the U.S. Court of Appeals for the Federal Circuit has stated that
“there are significant concerns relating to Commerce’s application of the Cohen’s
d test . . . in adjudications in which the data groups being compared are small, are
not normally distributed, and have disparate variances.” Stupp, 5 F.4th at 1357.
The Cohen’s d test is “a generally recognized statistical measure of the
extent of the difference between the mean of a test group and the mean of a
comparison group.” Apex Frozen Foods, 862 F.3d at 1342 n.2. The Cohen’s d test
relies on assumptions that the data groups being compared are normal, have equal
variability, and are equally numerous. See Stupp, 5 F.4th at 1357. Applying the
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Cohen’s d test to data that do not meet these assumptions can result in “serious
flaws in interpreting the resulting parameter.” See id. at 1358.
In Stupp Corp. v. United States, 5 F.4th 1341 (Fed. Cir. 2021), the U.S.
Court of Appeals for the Federal Circuit remanded Commerce’s use of the Cohen’s
d test for further explanation because the data Commerce used may have violated
the assumptions of normality, sufficient observation size, and roughly equal
variances. Id. at 1357–60. The Court addressed Commerce’s argument that it does
not need to worry about normality because it is using a population instead of a
sample, stating that Commerce’s argument “does not address the fact that
Professor Cohen derived his interpretive cutoffs under the assumption of
normality.” Id.
Marmen contends that the price differences of its U.S. sales of five of the
seven CONNUMs used in the differential pricing analysis were less than one
percent and were not significant. See Marmen’s Br. at 32. Marmen argues that
Commerce’s application of its differential pricing analysis in this case was
unreasonable. Id.
Commerce applied its two-step differential pricing methodology to
determine if a pattern of significant price differences existed and whether the
difference could be taken into account using the A-to-A method. See Final IDM at
11. Commerce chose the Cohen’s d test “to evaluate the extent to which the prices
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to a particular purchaser, region, or time period differ significantly from the prices
of all other sales of comparable merchandise.” Prelim. DM at 10. Commerce
applied the Cohen’s d test and determined that 68.29% of Marmen’s U.S. sales
passed. Final IDM at 11; Analysis for the Final Determination of Utility Scale
Wind Towers: Final Margin for Calculation for the Marmen Group (June 29, 2020)
(“Marmen Final Margin Calculations Mem.”) at 3, PR 195. Based on the results of
its Cohen’s d test and its meaningful difference test, Commerce determined that a
pattern of prices that differed significantly among purchasers, regions, or time
periods existed, that the A-to-A method could not account for the pattern of price
differences, and that the A-to-T method was appropriate to calculate Marmen’s
dumping margin. Final IDM at 11; Marmen Final Margin Calculations Mem. at 3.
Commerce determined that Marmen’s U.S. prices differed significantly and
decided to use the A-to-T method based on its differential pricing analysis, which
utilized the Cohen’s d test. See Marmen Final Margin Calculations Mem. at 3–4.
Commerce applied the Cohen’s d test to data that showed differences that were not
large in absolute terms, because the overall differences for five of the CONNUMs
were less than one percent. See id. Attach. 2. The Court notes that Commerce did
not explain whether the data applied to the Cohen’s d test were normally
distributed or contained roughly equal variances. See Final IDM at 10–11.
Because the record appears to indicate that the price differences were not large in
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absolute terms, the evidence before the Court calls into question whether the data
Commerce used in its differential pricing analysis violated the assumptions of
normality and roughly equal variances associated with the Cohen’s d test.
The Court remands the issue of Commerce’s use of the Cohen’s d test for
Commerce to explain further whether the limits on the use of the Cohen’s d test
were satisfied in this case in the context of the Stupp case. The Court remands
Commerce’s use of the A-to-T method for further explanation of Commerce’s
differential pricing analysis in accordance with this opinion.
IV. 	Commerce’s Determination to Use Marmen’s Invoice Dates as the
Date of Sale for Marmen’s Home Market and U.S. Sales
Commerce determined the date of sale for Marmen’s home market and U.S.
sales based on reported invoice dates. Final IDM at 15–16. WTTC argues that
Commerce should use a date other than the invoice date when determining
Marmen’s home market and U.S. dates of sale. See WTTC’s Br. at 18–19.
Commerce must conduct a “fair comparison” of normal value and export
price in determining whether merchandise is being, or is likely to be, sold at less
than fair value. See 19 U.S.C. § 1677b(a); see also Smith-Corona Grp. v. United
States, 713 F.2d 1568, 1578 (Fed. Cir. 1983). In doing so, normal value must be
from “a time reasonably corresponding to the time of sale used to determine the
export price or constructed export price.” 19 U.S.C. § 1677b(a)(1)(A). Commerce
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has promulgated the following regulation regarding the date that should be used as
the date of sale for purposes of comparing normal value and export price:
In identifying the date of sale of the subject merchandise or foreign like
product, [Commerce] normally will use the date of invoice, as recorded
in the exporter or producer's records kept in the ordinary course of
business. However, [Commerce] may use a date other than the date of
invoice if [Commerce] is satisfied that a different date better reflects
the date on which the exporter or producer establishes the material
terms of sale.
19 C.F.R. § 351.401(i). This Court has previously held that the material terms of a
sale generally include the price, quantity, payment, and delivery terms. See, e.g.,
ArcelorMittal USA LLC v. United States, 42 CIT __, __, 302 F. Supp. 3d 1366,
1378 (2018); Nakornthai Strip Mill Pub. Co. v. United States, 33 CIT 326, 337,
614 F. Supp. 2d 1323, 1333 (2009); USEC Inc. v. United States, 31 CIT 1049,
1055, 498 F. Supp. 2d 1337, 1343 (2007); see also Viraj Grp., Ltd. v. United
States, 343 F.3d 1371, 1377 n.1 (Fed. Cir. 2003). The important factor to
determine is when the parties have reached a “meeting of the minds.” Nucor Corp.
v. United States, 33 CIT 207, 249, 612 F. Supp. 2d 1264, 1300 (2009).
In promulgating the implementing regulation, Commerce explained that it
will normally rely on the date provided on the invoice “as recorded in a firm’s
records kept in the ordinary course of business.” See Antidumping Duties;
Countervailing Duties (“Preamble”), 62 Fed. Reg. 27,296, 27,348 (Dep’t of
Commerce May 19, 1997). Commerce prefers to use a single and uniform source
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Consol. Court No. 20-00169 	Page 27
for the date of sale for each respondent, rather than determining the date of sale for
each sale individually. Id. Commerce stated that “as a matter of commercial
reality, the date on which the terms of a sale are first agreed is not necessarily the
date on which those terms are finally established” because “price and quantity are
often subject to continued negotiation between the buyer and the seller until a sale
is invoiced.” Id. Commerce explained that:
absent 	satisfactory 	evidence 	that 	the 	terms 	of 	sale 	were 	finally
established on a different date, [Commerce] will presume that the date
of sale is the date of invoice . . . . 	If [Commerce] is presented with
satisfactory 	evidence 	that 	the 	material 	terms 	of 	sale 	are 	finally
established on a date other than the date of invoice, [Commerce] will
use that alternative date as the date of sale.
Id. at 27,349. The party seeking a date other than the invoice date bears the burden
of presenting Commerce with sufficient evidence demonstrating that “another date
. . . ‘better reflects the date on which the exporter or producer establishes the
material terms of sale.’” Viraj Grp., Ltd., 343 F.3d at 1377 n.1 (quoting 19 C.F.R.
§ 351.401(i)).
WTTC argues that Commerce has stated that “in situations involving large
custom-made merchandise in which the parties engage in formal negotiation and
contracting procedures, [Commerce] usually will use a date other than the date of
invoice.” WTTC’s Br. at 19 (citing Preamble, 62 Fed. Reg. at 27,349). However,
the Court notes that “[Commerce] emphasizes that in these situations, the terms of
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sale must be firmly established and not merely proposed.” Preamble, 62 Fed. Reg.
at 27,349. The regulatory presumption exists that Commerce will use the date of
invoice, and WTTC had the burden of proving to Commerce that another date
better reflects the date on which the material terms of sale were established. See
19 C.F.R. § 351.401(i).
WTTC argues that Commerce should have used a date other than the invoice
date as Marmen’s date of sale for home market and U.S. sales. See WTTC’s Br. at
18–19. WTTC asserts that the material terms of sale for Marmen’s sales did not
change between when purchase orders were issued and when invoices were issued.
See id. at 21. Commerce determined that Marmen had reported the invoice dates
as the date of sale for home market and U.S. sales, as instructed, and that Marmen
had responded to Commerce’s request for examples in which the terms of sale
changed between the purchase order date and the invoice date. Final IDM at 15–
16. Commerce reviewed Marmen’s questionnaire responses and determined that
the record supported that “changes to the material terms of sale occurred between
the purchase order and the invoice date in both the home and U.S. markets.” Id.
(citing Utility Scale Wind Towers from Canada: Section A Resp. (Sept. 13, 2019)
(“Marmen AQR”), PR 76; Utility Scale Wind Towers from Canada: Sections B, C,
and D Resp. (Oct. 11, 2019) (“Marmen BCDQR”), PR 89–97; Utility Scale Wind
Towers from Canada: Suppl. Sections A, B, and C Resp. (Feb. 6, 2020) (“Marmen
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First SABCQR”), PR 120–21; Utility Scale Wind Towers from Canada: Second
Suppl. Sections A, B, and C Resp. (Feb. 6, 2020) (“Marmen Second SABCQR”),
PR 181–83; Marmen SDQR). In support of using the invoice date as the date of
sale for both home market and U.S. sales, Commerce cited the examples that
Marmen provided of a change to the delivery terms in a home market sale and
changes to the price, quantity, and payment terms in a U.S. sale. Id. at 16 (citing
Marmen First SABCQR Exs. FSQ-6, FSQ-7, FSQ-12, FSQ-14).
The Court notes that Commerce’s questionnaires requested that Marmen
state the “date of sale (e.g., invoice date, etc.)” and provide an example of a change
in the terms of sale between the purchase order and invoice date for both home
market and U.S. sales. See Antidumping Duty Investigation Req. for Information
for Marmen Inc., Utility Scale Wind Towers from Canada (Aug. 19, 2019) (“Initial
Questionnaire”) at A-8, PR 54; Antidumping Duty Investigation on Utility Scale
Wind Towers from Canada: Suppl. Questionnaire for Marmen (“Nov. 20, 2019”)
(“Supplemental Questionnaire”) at 5, PR 103. The Court observes that Marmen’s
responses complied with Commerce’s requests, because Marmen reported the
invoice date as the date of sale for its home market and U.S. sales, in line with
Commerce’s questionnaire. See Initial Questionnaire at A-8; Marmen AQR at A-
20. The Court notes that Marmen also provided examples of changes to the
material terms of sale between the purchase order and invoice date, consistent with
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Commerce’s request. See Supplemental Questionnaire at 5; Marmen First
SABCQR at 12–14.
The record evidence cited by Commerce supports a determination that the
material terms of sale were not established prior to the invoice date, because the
evidence shows changes to the terms between the purchase order and invoice date.
The Court observes that record documents cited by Commerce show an example of
a change in the delivery terms for one of Marmen’s home market sales between the
purchase order and invoice. See Marmen First SABCQR at 12 (stating that the
change in delivery terms resulted in additional costs for the delivery of the sale)).
Record documents cited by Commerce also show a change in the terms of one of
Marmen’s U.S. sales, showing that price, quantity, and payment terms changed
between the letter of intent and the invoice date. See id. at 13–14, Ex. FSQ-7.
Because record evidence cited by Commerce show changes to delivery terms,
price, quantity, and payment terms, and these terms are considered material, the
Court concludes that Commerce’s determination that there were changes to the
material terms between the purchase order and invoice date is supported by
substantial evidence.
Commerce has supported its determination that there were changes to the
material terms of sale between the purchase order and invoice date, and the Court
concludes that Commerce has supported with substantial evidence its
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determination that the invoice date best reflects when the material terms of sale
were established. Therefore, the Court concludes that Commerce correctly applied
the regulatory presumption to use the invoice date as the date of sale and that
Commerce’s determination to use Marmen’s reported invoice dates as the date of
sale for home market and U.S. sales is supported by substantial evidence.
V. 	Commerce’s Use of Marmen’s Reporting of Home Market Sales
of Tower Sections
Commerce determined that Marmen correctly reported its home market sales
as sales of wind tower sections and relied on Marmen’s reported information.
Final IDM at 17–18. WTTC argues that Marmen incorrectly reported its home
market sales as sales of sections and that Commerce should not use Marmen’s
reported home market sales information. WTTC’s Br. at 34–37.
Commerce cited Marmen’s questionnaire responses, which showed that
Marmen issued invoices for each section of its home market sales. See Final IDM
at 17–18 (citing Marmen AQR; Marmen BCDQR; Marmen First SABCQR Exs.
FSQ-11, FSQ-12). Despite Marmen issuing purchase orders for whole towers,
Commerce noted that Marmen issued invoices by section. See id.; see also
Marmen First SABCQR Exs. FSQ-11, FSQ-12. Commerce determined, therefore,
that Marmen’s reporting was consistent with Commerce’s instructions and with the
manner in which Marmen actually invoiced its customer. See Final IDM at 17–18.
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The Court notes that Commerce’s questionnaires requested that Marmen
report its sales by wind tower section as invoiced. See Initial Questionnaire at B-2;
Model Matching Questionnaire Attach. 1. The Court observes that record
documents cited by Commerce show that Marmen invoiced customers by section.
See Marmen First SABCQR Exs. FSQ-11, FSQ-12. Because Marmen invoiced
customers by wind tower section and Commerce instructed Marmen to report its
sales as they were invoiced, the Court agrees with Commerce’s determination that
Marmen accurately reported its sales as sales of wind tower sections, consistent
with Commerce’s requests.
The Court concludes that Commerce’s reliance on Marmen’s reported
information as accurate and treatment of Marmen’s home market sales as sales of
tower sections is reasonable and supported by substantial evidence on the record.
VI. 	Commerce’s Determination Not to Apply Facts Otherwise
Available or an Adverse Inference to Marmen
Commerce determined that the record provided sufficient information to
calculate Marmen’s dumping margin and declined to apply adverse facts available
to Marmen. See Final IDM at 19–20. WTTC contends that Marmen was not
responsive to Commerce’s questionnaires and that Marmen reported inaccurate and
incomplete data. See WTTC’s Br. at 37–44. WTTC argues that Commerce should
have applied facts otherwise available or an adverse inference. Id. at 38.
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Section 776 of the Tariff Act of 1930, as amended, provides that if
“necessary information is not available on the record” or if a respondent “fails to
provide such information by the deadlines for submission of the information or in
the form and manner requested,” then the agency shall “use the facts otherwise
available in reaching” its determination. 19 U.S.C. § 1677e(a)(1), (a)(2)(B). If
Commerce finds further that “an interested party has failed to cooperate by not
acting to the best of its ability to comply with a request for information” from the
agency, then Commerce “may use an inference that is adverse to the interests of
that party in selecting from among the facts otherwise available.” Id.
§ 1677e(b)(1)(A). When Commerce can fill in gaps in the record independently,
an adverse inference is not appropriate. See Zhejiang DunAn Hetian Metal Co. v.
United States, 652 F.3d 1333, 1348 (Fed. Cir. 2011).
WTTC asserts that Marmen’s reporting was incomplete and that the record
lacked necessary information. WTTC’s Br. at 39–41. WTTC argues that
Commerce should have applied facts otherwise available to calculate Marmen’s
dumping margin. See id. at 41. WTTC asserts that Marmen mischaracterized its
home market date of sale and misreported its sales as sales of wind tower sections.
See id. at 38–41. As a result, WTTC argues that Marmen’s reporting did not
comply with Commerce’s requests and Commerce should have applied an adverse
inference. See id. at 40–44. Commerce cited Marmen’s questionnaire responses
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and determined that Marmen was “responsive to the information requested,” that
its responses were submitted in a timely manner, and that there was “no missing
information from the record that is a condition necessary for applying facts
available.” Final IDM at 19–20. Commerce also determined that Marmen’s
reporting of its home market date of sale based on invoice date and its sales of
wind tower sections was consistent with Commerce’s requests and Marmen’s
invoicing practices. Id. at 20. Because Marmen complied with Commerce’s
requests and the record contained sufficient information for Commerce’s
determination, Commerce declined to apply facts otherwise available or an adverse
inference. Id. at 20.
The Court observes that Marmen’s questionnaire responses, cited by
Commerce, were consistent with Commerce’s instructions. See Marmen AQR;
Marmen BCDQR; Marmen First SABCQR. As discussed above, the Court
concludes that Commerce’s determinations that Marmen reported invoice dates as
the date of sale for home market and U.S. sales and reported home market sales as
sales of wind tower sections, in accordance with Commerce’s questionnaire
instructions, are supported by substantial evidence. See supra Parts IV & V. The
Court concludes that Commerce’s determination that Marmen’s reporting was
responsive to Commerce’s requests and no information was missing from the
record is supported by substantial evidence. The Court holds that Commerce’s
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determination not to apply facts otherwise available or an adverse inference to
Marmen is supported by substantial evidence.
CONCLUSION
For the foregoing reasons, the Court sustains Commerce’s determination to
weight-average Marmen’s plate costs; Commerce’s use of invoice dates as the date
of sale; Commerce’s use of Marmen’s reported sales of tower sections; and
Commerce’s decision not to apply facts otherwise available or an adverse
inference. The Court remands Commerce’s determination rejecting Marmen’s
additional cost reconciliation information and Commerce’s use of the A-to-T
methodology to calculate Marmen’s dumping margin for further consideration in
accordance with this opinion.
Accordingly it is hereby
ORDERED that the Final Determination is remanded to Commerce for
further proceedings consistent with this opinion; and it is further
ORDERED that this action shall proceed according to the following
schedule:
1. 	Commerce shall file the remand determination on or before December
17, 2021;
2. 	Commerce shall file the remand administrative record on or before
January 14, 2022;
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3. 	Comments in opposition to the remand determination shall be filed on
or before February 11, 2022;
4. 	Comments in support of the remand determination shall be filed on or
before March 4, 2022; and
5. 	The joint appendix shall be filed on or before March 25, 2022.
/s/ 	Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: 	October 22, 2021
New York, New York
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