Toyo Kohan Co., Ltd. v. United States

Slip Op.
UNITED STATES COURT OF INTERNATIONAL TRADE
TOYO KOHAN CO., LTD.,
Plaintiff,
v.
UNITED STATES,
Defendant,
THOMAS STEEL STRIP CORPORATION,
Defendant-Intervenor.
Before: Jane A. Restani, Judge
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Public Version
OPINION AND ORDER
Dated: October , 2025
[Commerce’s final results for the antidumping duty order on diffusion-annealed, nickel-plated flat-
rolled steel products from Japan are remanded.]
Daniel Lewis Porter, Gina Marie Colarusso, James Philip Durling, and John Taishu Pitt, Pillsbury
Winthrop Shaw Pittman LLP, of Washington, DC, argued for the plaintiff, Toyo Kohan Co., Ltd.
With them on the brief was William Charles Sjoberg.
Emma E. Bond, Lead Attorney, Commercial Litigation Branch, Civil Division, U.S. Department
of Justice, of Washington, DC, argued for the defendant, the United States. Of counsel on the brief
were Charlie Chung and William Mitchell Purdy, Office of Chief Counsel for Trade Enforcement
and Compliance, U.S. Department of Commerce, of Washington, DC.
James R. Cannon, Jr., Cassidy Levy Kent (USA) LLP, of Washington, DC, for the defendant-
intervenor, Thomas Steel Strip Corporation. With him on the brief were Nicole Brunda and Ulrika
Kristin Skitarelic Swanson.
Restani, Judge: Before the court is Toyo Kohan Co., Ltd.’s (“Toyo Kohan”) motion for
judgment on the agency record pursuant to USCIT Rule 56.2 challenging the final results of the
United States Department of Commerce’s (“Commerce”) administrative review of diffusion-
annealed, nickel-plated flat-rolled steel products (“DANP”) from Japan, covering the period of
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May 1, 2022, to April 30, 2023. Pl.’s Mot. for J. on the Agency R., ECF No. 28 (May 2, 2025)
(“Pl.’s Mot.”); see Diffusion-Annealed, Nickel-Plated Flat-Rolled Steel Products From Japan:
Final Results of Antidumping Duty Administrative Review, 89 Fed. Reg. 95,735 (Dep’t
Commerce Dec. 3, 2024) (“Final Results”).
Toyo Kohan requests that the court hold Commerce’s decision to use the shipment date as
the date of sale for sales of subject merchandise to the United States market unsupported by
substantial evidence. Toyo Kohan also asks that the court hold Commerce’s use of the Cohen’s d
test unlawful.1 Defendant, the United States (“government”) and defendant-intervenor, Thomas
Steel Strip Corporation (“Thomas Steel”), ask that the court sustain the Final Results. 	For the
following reasons, the court remands to Commerce the issues of the date of sale and the appropriate
differential pricing analysis for reconsideration consistent with this opinion.
BACKGROUND
On July 12, 2023, Commerce initiated its administrative review of the antidumping (“AD”)
duty order covering nickel-plated steel products from Japan for period of review (“POR”) from
May 1, 2022, through April 30, 2023. 	See Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 88 Fed. Reg. 44,262, 44,263, 44,266–67 (Dep’t Commerce July 12,
2023). 	Commerce selected Toyo Kohan as the sole mandatory respondent in this review. 	See
Respondent Selection Memorandum at 1–2, P.R. 16 (Aug. 18, 2023); Issues and Decision
Memorandum for the Final Results of the 2022-2023 Administrative Review of the Antidumping
1 As the court will discuss in more detail, the Cohen’s d test is a statistical measure of the extent
of the difference between the mean of a test group and the mean of a comparison group. Decision
Memorandum for the Preliminary Results of the 2022-2023 Administrative Review of the
Antidumping Duty Order on Diffusion-Annealed, Nickel-Plated Flat-Rolled Steel Products from
Japan at 5, P.R. 85 (Dep’t Commerce May 16, 2024) (“PDM”). Commerce uses the Cohen’s d
test as a step in its comparison of the normal value to the export price of the subject merchandise
to determine the dumping rate. Id. at 4–5.
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Duty Order on Diffusion-Annealed, Nickel-Plated Flat-Rolled Steel Products from Japan at 1, P.R.
108 (Nov. 25, 2024) (“IDM”). 	On May 23, 2024, Commerce published the preliminary results
and calculated a weighted-average dumping margin of 12.69 percent for Toyo Kohan. Diffusion-
Annealed, Nickel-Plated Flat-Rolled Steel Products From Japan: Preliminary Results and Partial
Rescission of Antidumping Duty Administrative Review; 2022-2023, 89 Fed. Reg. 45,638, 45,639
(Dep’t Commerce May 23, 2024) (“Preliminary Results”); Decision Memorandum for the
Preliminary Results of the 2022-2023 Administrative Review of the Antidumping Duty Order on
Diffusion-Annealed, Nickel-Plated Flat-Rolled Steel Products from Japan, P.R. 85 (Dep’t
Commerce May 16, 2024) (“PDM”).
Commerce based Toyo Kohan’s date of sale “on [the earlier of] the commercial invoice
date or shipment date (i.e., SALEDATU).” Preliminary Results Analysis Memorandum for Toyo
Kohan at 2, P.R. 86, C.R. 178, 182 (May 16, 2024) (“Prelim. Analysis Mem.”). 	In the PDM,
Commerce stated that it based the date of sale on the commercial invoice date for Toyo Kohan’s
U.S. sales because the invoice date was the same or earlier than the shipment date. PDM at 3–4.
Despite referring to the commercial invoice date in the PDM, Commerce used the shipment date
as the date of sale. 2 	See IDM at 3–4. 	Commerce also preliminarily selected the method for
comparing export price and normal value. 	PDM at 4–6. Commerce applied the Cohen’s d test
and applied the average-to-transaction (“A-T”) method to the U.S. sales that passed the Cohen’s d
test and the average-to-average (“A-A”) method to the U.S. sales that did not pass the Cohen’s d
test. Id. at 5–6. On May 28, 2024, Toyo Kohan submitted a request for correction of ministerial
errors, noting that Commerce used the shipment date as the date of sale when it had stated in the
2 In the IDM, Commerce clarified that it used the “SALEDATU” value, which is the earlier of the
commercial invoice date or the shipment date, as the date of sale. See IDM at 4.
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PDM that it intended to use the commercial invoice date as the date of sale. Toyo Kohan’s Request
for Correction of Ministerial Error at 2–3, P.R. 89 (May 28, 2024). Commerce did not make any
adjustments based on this request. See Def.-Int.’s Br. in Opp. to Pl.’s Mot. at 6, ECF No. 37 (July
11, 2025) (“Def.-Int.’s Resp.”). Toyo Kohan submitted a case brief objecting to Commerce’s use
of the shipment date as the date of sale but did not object to Commerce’s application of the Cohen’s
d test.3 	See generally Toyo Kohan’s Case Br., P.R. 92 (June 21, 2024). 	In the Final Results,
Commerce calculated a final weighted-average dumping margin of 4.44 percent. Final Results at
95,736. Commerce continued to use the earlier of the commercial invoice date or the shipment
date as the date of sale. IDM at 4.
JURISDICTION AND STANDARD OF REVIEW
The court has jurisdiction pursuant to 28 U.S.C. § 1581(c) and section 516A of the Tariff
Act of 1930 (the “Act”), codified as amended, 19 U.S.C. § 1516a(2). 	The court sustains
Commerce’s results in an antidumping duty investigation unless they are “unsupported by
substantial evidence on the record, or otherwise not in accordance with law[.]” 	19 U.S.C.
§ 1516a(b)(1)(B)(i); see also Fujitsu Gen. Ltd. v. United States, 88 F.3d 1034, 1038 (Fed. Cir.
1996).
3 In its case brief, Toyo Kohan also argued that Commerce utilized the incorrect home market sales
database. Toyo Kohan’s Case Br. at 2–3, P.R. 92 (June 21, 2024). Commerce corrected this error.
See IDM at 5.
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DISCUSSION
I. 	Commerce’s date of sale determination is unsupported by substantial evidence
Toyo Kohan argues that the invoice date, rather than the shipment date, is the proper date
of sale. 4 Pl.’s Mot. at 2. Toyo Kohan contends that the record demonstrates that more than half
of its U.S. sales changed price after shipment, meaning the material terms of sale are not set until
the invoice date for most of its U.S. sales. Id. at 2–3, 5, 11. Specifically, Toyo Kohan notes that
its Section A and C Responses make clear that 83 out of the 135 U.S. transactions had price
changes after the shipment date. 	Id. at 27–28. 	Toyo Kohan argues that Commerce relied on a
single sample sale rather than the whole record to support its date of sale determination, yet even
that sample sale does not support Commerce’s choice of the shipment date as the date of sale. 5 Id.
at 31. 	Toyo Kohan notes that in the prior administrative review, Commerce recognized that its
preliminary use of the shipment date as the date of sale had been in error and instead used the
invoice date in the Final Results. Id. at 2, 24. Toyo Kohan argues that here, too, Commerce’s use
of the shipment date was a ministerial error. See id. at 24.
The government responds that the record evidence supports Commerce’s use of the
shipment date as the date of sale. See Def.’s Resp. to Mot. for J. on the Agency R. at 11, ECF No.
40 (July 11, 2025) (“Def.’s Resp.”). The government points to the sample sale provided by Toyo
4 On August 11, 2025, the court issued questions to the parties inquiring, assuming arguendo that
the court remands to Commerce on the Cohen’s d issue, whether it should address the date of sale
issue now. Letter Issued by The Hon. Jane A. Restani, ECF No. 47 (Aug. 11, 2025). The parties
agreed that the court should address the date of sale issue now. 	See Def.’s Resp. to Ct.’s
Req./Order for Resp. to Suppl. Questions at 2, ECF No. 48 (Aug. 18, 2025); Pl.’s Resp. to Ct.’s
Req./Order for Resp. to Suppl. Questions at 2, ECF No. 50 (Aug. 18, 2025); Def.-Int.’s Resp. to
Ct.’s Req./Order for Resp. to Suppl. Questions at 3, ECF No. 51 (Aug. 18, 2025).
5 Toyo Kohan adds that this transaction actually shows a price change between shipment and
invoice, demonstrating that the material terms were not established at the shipment date. 	Pl.’s
Mot. at 31. The government, however, disagrees. Def.’s Resp. at 15, 22.
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Kohan in Exhibit A-10A, which it argues shows the same price at shipment and the invoice date.
Id. at 15, 22–23; see also Def.-Int.’s Resp. at 5. The government adds that the other sample sale
provided by Toyo Kohan also lists the same price at shipment and final invoice. Def.’s Resp. at
23. The government contends that Toyo Kohan’s argument that most of the U.S. transactions had
price changes after the shipment date conflicts with the documentation of the sample sale. 	Id.
Thomas Steel argues that these alleged changes in price are merely internal accounting entries used
by Toyo Kohan and not reflective of real changes to the price between the shipment date and the
invoice date. 6 Def.-Int.’s Resp. at 9–10. The government acknowledges that Commerce used the
invoice date in prior administrative reviews but notes that each administrative review is a separate
exercise of Commerce’s authority.7 Def.’s Resp. at 17–18.
6 Thomas Steel also notes that this court has previously upheld Commerce’s practice of using the
earlier of the shipment date or invoice date as the date of sale because when a party ships its product
to a customer, it reasonably follows that the material terms of the sale have been established. Def.-
Int.’s Resp. at 8 (citing Tension Steel Indus. Co. v. United States, 179 F. Supp. 3d 1185, 1194 (CIT
2016)). 	In Tension Steel, the court sustained Commerce’s use of the shipment date of the sale.
See 179 F. Supp. 3d at 1194. There was no indication in that case, however, that the terms of the
sale could have changed after the shipment. 	Accordingly, the case addressed a different set of
facts than those currently before the court.
7 The government also argues that Toyo Kohan failed to exhaust its challenges to Commerce’s
date of sale determination. 	Def.’s Resp. at 19. 	In particular, the government notes that Toyo
Kohan failed to argue before Commerce that the “VAL_ADJU” field showed post-shipment
alterations in price. Id. at 19, 21. Toyo Kohan responds that, while it did not present this exact
argument before Commerce, it provided Commerce with sufficient notice of its challenge to the
shipment date as the date of sale. Toyo Kohan Reply at 16–21, ECF No. 44 (Aug. 8, 2025) (“Pl.’s
Reply”). Toyo Kohan adds that it would have been impossible for Toyo Kohan to challenge the
date of sale rationale that Commerce ultimately adopted because that rationale was first articulated
in the Petitioner’s Rebuttal Brief. 	Id. at 21. 	The court “shall, where appropriate, require the
exhaustion of administrative remedies.” 28 U.S.C. § 2637(d). The Federal Circuit has held that a
party is on notice that Commerce may consider certain arguments regarding record evidence if
those arguments are presented in another party’s case brief, even if Commerce did not rely on
those arguments in its preliminary determination. 	See Boomerang Tube LLC v. United States,
856 F.3d 908, 913 (Fed. Cir. 2019). 	The Federal Circuit concluded that, to exhaust its
administrative remedies, a party must respond to arguments presented before Commerce because
of the possibility that Commerce may adopt those arguments in the final results. Id. In the PDM,
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In an antidumping review, Commerce conducts a “fair comparison” of the prices of a good
sold in the respondent’s home market (the “normal value”) with the prices for the same or similar
good sold in the U.S. market (the “export price”) to determine the dumping margin. 	19 U.S.C.
§§ 1677b(a), 1677a, 1675(a)(2). 	The normal value must be “the price . . . at a time reasonably
corresponding to the time of the sale used to determine the export price.” 	Id. § 1677b(a)(1)(A).
Accordingly, Commerce determines the “date of sale,” which is the date “when the material terms
of sale are established.” Uruguay Round Agreements Act, Statement of Administrative Action,
H.R. Rep. No. 103-316, at 810 (1994), reprinted in 1994 U.S.C.C.A.N. 4040, 4153. 8 The material
terms generally include price, quantity, payment, and delivery terms. 	Eregli Demir ve Celik
Fabrikalari T.A.S v. United States, 308 F. Supp. 3d 1297, 1306–07 (CIT 2018) (citing Sahaviriya
Commerce stated that “where shipment date precedes invoice date, shipment date better reflects
the date on which the material terms of sale are established.” PDM at 3. Commerce proceeded to
use Toyo Kohan’s shipment date as the date of sale. Id. at 3–4; Prelim. Analysis Mem. at 2; IDM
at 4. On June 21, 2024, Toyo Kohan submitted a case brief characterizing Commerce’s use of the
shipment date as the date of sale as a ministerial error that should be corrected, just as Commerce
corrected the same error in the eighth administrative review. Toyo Kohan’s Case Br. at 2, P.R. 92
(June 21, 2024). On June 27, 2024, Thomas Steel Strip Corporation responded, arguing that the
shipment date was the date of sale because the material terms of the sale were established on the
shipment date. Petitioner’s Rebuttal Br. at 2, P.R. 95, C.R. 191 (June 27, 2024). On July 8, 2024,
Toyo Kohan submitted a surrebuttal brief arguing that the material terms of sale were not set on
the shipment date, but Commerce rejected this brief. 	See generally (Rejected) Toyo Kohan’s
Surrebuttal to Rebuttal Br., P.R. 98, C.R. 192 (July 8, 2024) (“Toyo Kohan’s Surrebuttal Br.”). In
the PDM, Commerce did not state that the terms of the particular sale at issue were established at
the time of shipment. 	Rather, Toyo Kohan first heard this argument in Thomas Steel Strip
Corporation’s rebuttal brief. By rejecting Toyo Kohan’s surrebuttal brief, Commerce effectively
blocked Toyo Kohan’s attempt to exhaust its administrative remedies. 	While Toyo Kohan’s
surrebuttal brief did not specifically outline its “VAL_ADJU” argument, it referred to the
Supplemental Section C response, which contained the “VAL_ADJU” data. See Toyo Kohan’s
Surrebuttal Br. at 2. Accordingly, the brief would have provided Commerce with sufficient notice
of Toyo Kohan’s arguments regarding the date of sale. 	The court accordingly rejects the
government’s argument that Toyo Kohan failed to exhaust its administrative remedies on this
issue.
8 Congress designated the Statement of Administrative Action as “an authoritative expression by
the United States concerning the interpretation of the Uruguay Round Agreements and this Act.”
19 U.S.C. § 3512(d).
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Steel Indus. Pub. Co. v. United States, 34 CIT 709, 727, 714 F. Supp. 2d 1263, 1280 (2010), aff’d,
649 F.3d 1371 (Fed. Cir. 2011)). The date of sale normally will be the date of invoice but may be
another date if that date “better reflects the date on which the exporter or producer establishes the
material terms of sale.” 	19 C.F.R. § 351.401(i). 	Commerce has a “well-established and
longstanding practice of looking beyond the invoice date to the parties’ actual course of conduct,
as well as the parties’ expectations concerning the transaction, to determine whether an earlier date
. . . represents the point at which the parties reached a meeting of the minds on the material terms
of sale.” Nucor Corp. v. United States, 33 CIT 207, 259–60, 612 F. Supp. 2d 1264, 1308 (2009)
(citation omitted) (citation modified). Commerce’s practice is to use the shipment date when the
shipment date precedes the invoice date because the shipment date better reflects the date on which
the material terms of sale are established. PDM at 3; IDM at 4.
Toyo Kohan explained its sales process in detail in its Section A and Section C
Questionnaire Responses to Commerce. See Toyo Kohan’s Section A Questionnaire Response at
23–25, P.R. 22–23, C.R. 3, 5–9 (Sep. 15, 2023) (“Sec. A Resp.”); Toyo Kohan’s Section C
Questionnaire Response at 24–25, P.R. 39–40, C.R. 48–49 (Oct. 10, 2023) (“Sec. C Resp.”). Toyo
Kohan negotiates sales terms for its shipments with its customer. Sec. A Resp. at 16. During the
period of review, 	Toyo Kohan’s U.S. sales were made to an unaffiliated
customer, 	Id. at 15. Toyo Kohan offers its customer a price based on an
apparently agreed-upon pricing formula that calculates the final price based on
Id. at 15–16. The customer then sends a purchase
order to Toyo Kohan, and Toyo Kohan generates an electronic order confirmation containing the
estimated price, quantity, product specifications, shipment terms, and a sales contract. Id. at 16–
17. 	Toyo Kohan produces the merchandise and ships it to the United States. 	Id. at 17. 	Toyo
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Kohan’s system issues a summary bill to the customer based on the shipment date and the tentative
price in the system at the time. Id.; Sec. C Resp. at 16. Toyo Kohan then generates a payment
invoice with a final sales price, which is
Sec. A Resp. at 17.
Id.; Sec. C Resp. at 24–25. This change is “an internal
difference between the most recent order confirmation and the actual sales price.” Sec. C Resp. at
25. 	The U.S. sales database submitted by Toyo Kohan contains a field marked “VAL_ADJU,”
which indicates the difference between the price on the date of shipment and the final invoice.
Sec. C Resp. at 25; see Toyo Kohan’s Supplemental Section C Questionnaire Response, Ex. SC-
1, P.R. 73–74, C.R. 132–33, 138 (Apr. 24, 2024).
As evidence of its sales process, Toyo Kohan attached two example sales to its Section A
Response. 	See Sec. A Resp., Exs. A-10A, A-10B. 	Exhibit A-10A includes contract number
dated 	with a quantity of 	metric tons, a unit price of
per metric ton, and a total contract price of 	U.S. dollars. 	Sec. A
Resp., Ex. A-10A at 55. 	The order confirmation, dated 	however, lists a
different unit price of 	per metric ton, a different quantity of 	metric tons, and a
different total contract price of 	Id. at 57. The order shipped on 	Id.
at 62. A billing statement dated 	lists a unit price of 	per metric ton,
the same price listed on the order confirmation, and a quantity of 	kilograms, the same
quantity listed on the 	contract. Id. at 59. The bill of lading, dated
lists the same quantity of 	kilograms but no unit or contract price. Id. at 64. A revised
billing statement dated 	lists the original unit price of 	per metric
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ton and the original quantity of 	Id. at 60. 	Another contract with the same contract
number, dated 	also lists the original unit price of 	per metric ton,
but lists a quantity of just 	metric tons, the same quantity listed on the order confirmation.
Id. at 58. Accordingly, the total contract price on this version of the contract is 	Id.
The invoice for the contract, dated 	contains the same terms as the
contract, listing a net weight of 	metric tons, a unit price of 	per
metric ton, and a total price of 	Id. at 62–63.
Exhibit A-10B includes contract number 	dated 	with a
quantity of 	metric tons and lists a unit price of 	per metric ton. Sec. A. Resp.,
Ex. A-10B at 24. 	An order confirmation, dated 	lists the same quantity of
metric tons, a unit price of 	and a total price of 	Id. at 26. An
updated contract, dated 	lists the same quantity of 	metric tons, the
same 	unit 	price 	of 	per 	metric 	ton, 	and 	the 	same 	total 	contract 	price 	of
Id. at 1. 	The goods shipped on 	Id. at 4. 	The bill of
lading, dated 	lists a different final quantity of 	kilograms. Id.
at 7. The invoice, dated 	lists a quantity of 	metric tons, the
same quantity listed on the bill of lading, the same price of 	per metric ton listed on
the 	contract, and a new total contract price of 	Id. at 4–5.
Commerce’s use of the shipment date as the date of sale was unsupported by the record
and a reasoned explanation. 	Careful reading of the record evidence shows that Toyo Kohan’s
billing documentation at the time of shipping is virtually meaningless, as it does not necessarily
reflect the quantity or price in the purchase order or the final invoice. Toyo Kohan clearly laid out
its sales process in its Section A response, in which it explained that because of the agreed-upon
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pricing formula with its customer during the period of review, the final price of the goods is not
reflected in the shipment documents. 	Rather,
could impact the price. 	Nothing in the record contradicts Toyo
Kohan’s explanation of its sales process. Toyo Kohan’s documentation of the “VAL_ADJU” field
and accompanying explanation of the meaning of the field in its Section C response suggest that
the documented sales price may change after the time of shipment. The sample sales that Toyo
Kohan submitted to Commerce with its Section A response also support this conclusion. Exhibit
A-10A, for example, shows that at the time of shipment, the unit price was stated as 	per
metric ton in both the 	order confirmation and the 	billing statement. Sec. A.
Resp., Ex. A-10A at 57, 59. Accordingly, the price stated at shipment did not reflect the final price
of 	per metric ton. Id. at 60. While these terms happen to match those listed on the
original 	contract, id. at 55, this suggests that there were no changes to the
inputs of the pricing formula, not that the material terms of the sale were only set at the shipment
date. Exhibit A-10B does not contradict Exhibit A-10A. While the per unit price did not change
between the pre-shipment contract and the final invoice, no documentation at the time of shipment
also demonstrates this per unit price. See generally Sec. A. Resp., Ex. A-10B. While the price
reflected in the record at the shipment date may have no substance, the sales actually may or may
not be considered to have been made on the date. The price in dollar terms is not reflected until
the invoice but the pricing formula set the price perhaps earlier than the invoice date. The court
remands for Commerce to reconsider both the date of sale and the sales price, recognizing that
when there is an agreed-to pricing formula, there may be a disconnect in the record data for the
two matters. 	The court makes no determination as to the date of sale or sales price among the
various possibilities nor does it direct or prohibit reopening of the record.
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II. 	The court remands to Commerce to reperform its differential pricing analysis
Toyo Kohan argues that, in the light of the Federal Circuit’s recent decisions, the court
should remand to Commerce to evaluate whether Commerce appropriately used the Cohen’s d test
for Toyo Kohan’s sales. 	Pl.’s Mot. at 35 (citing Marmen Inc. v. United States, 134 F.4th 1334
(Fed. Cir. 2025) (“Marmen”); Stupp Corp. v. United States, No. 23-1663, 2025 WL 1178392 (Fed.
Cir. Apr. 23, 2025) (“Stupp II”)). Toyo Kohan acknowledges that it did not raise this issue before
Commerce but argues that the exhaustion doctrine does not apply because the Federal Circuit’s
recent decisions in Marmen and Stupp II represent a shift in controlling law that forecloses
Commerce’s use of the Cohen’s d methodology in this case. Id. at 36–38. Toyo Kohan contends
that the data that Commerce considered does not meet the underlying assumptions on which the
Cohen’s d test rests, as required by the Federal Circuit in Marmen. Id. at 38. Specifically, Toyo
Kohan notes that the data is not normally distributed, the data does not have equal variances, and
the data is not sufficiently numerous. Id. at 40–41.
The government and Thomas Steel respond that Toyo Kohan failed to exhaust its
administrative remedies by failing to challenge Commerce’s application of the Cohen’s d test
during the administrative review and that, accordingly, the court should dismiss Toyo Kohan’s
challenge. Def.’s Resp. at 9–10, 33; see Def.-Int.’s Resp. at 17–19. The government argues that
it would not have been futile for Toyo Kohan to raise its arguments before Commerce because
doing so was necessary to develop the factual record and allow for judicial review pursuant to 19
U.S.C. § 1516a(b)(1)(B)(i). 	Def.’s Resp. at 29. 	The government adds that Toyo Kohan’s
arguments regarding Commerce’s application of the Cohen’s d test are not appropriate for
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resolution by the court in the first instance as they are not pure questions of law. 9 Def.’s Resp. at
30–32.
As discussed above, in an antidumping review, Commerce conducts a “fair comparison”
of the normal value and the export price to determine the dumping margin for each entry. 	19
U.S.C. § 1677b(a). Commerce selects a method of comparison to compare the export price to the
normal value. 19 C.F.R. § 351.414. Commerce may use an average-to-average (comparing the
weighted-average normal values to weighted-average export prices), transaction-to-transaction, or
average-to-transaction method (comparing the weighted-average normal values with the export
prices of individual sales). 	Id. § 351.414(b); PDM at 4. 	Commerce may use the average-to-
transaction method only if there is a pattern of export prices for comparable merchandise that differ
significantly among purchasers, regions, or period of time, and Commerce explains why such
differences cannot be taken into account using an average-to-average or transaction-to-transaction
method. 	19 U.S.C. § 1677f-1(d)(1)(B). 	Commerce conducts a differential pricing analysis to
determine whether to use the average-to-transaction method. Mid Continent Steel & Wire, Inc. v.
United States, 31 F.4th 1367, 1371 (Fed. Cir. 2022). Commerce uses the Cohen’s d test as the first
step in the differential pricing analysis to calculate the dumping margin. 	Marmen, 134 F.4th at
1345. The Cohen’s d test “measure[s] whether the United States prices to a particular purchaser,
region, or time period differ significantly from the prices for all other purchasers, regions, and time
periods.” Id. at 1344 (citation omitted). In Marmen, the Federal Circuit held that the underlying
9 Thomas Steel adds that the Federal Circuit’s decision in Stupp Corp. v. United States, 5 F.4th
1341 (Fed. Cir. 2021) (“Stupp I”) raised “‘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.’” Def.-Int.’s Resp. at 19 (quoting Stupp I,
5 F.4th at 1357).
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data must be “normally distributed, equally variable, and equally and sufficiently numerous” for
Commerce to use the Cohen’s d test. Id. at 1348.
The court “shall, where appropriate, require the exhaustion of administrative remedies.”
28 U.S.C. § 2637(d). 	The Federal Circuit has held that “a party’s failure to raise an argument
before Commerce constitutes a failure to exhaust its administrative remedies.” Qingdao Sea-Line
Trading Co. v. United States, 766 F.3d 1378, 1388 (Fed. Cir. 2014) (citations omitted). The court
may excuse a party’s failure to argue a “pure question of law” to the agency that “can be addressed
without further factual development or further agency exercise of discretion.” Itochu Bldg. Prods.
v. U.S., 733 F.3d 1140 (Fed. Cir. 2013); see also Agro Dutch Indus. Ltd. v. United States, 508
F.3d 1024, 1029 (Fed. Cir. 2007). 	Additionally, a party need not exhaust its administrative
remedies where invoking such remedies would be futile. Asociacion Colombiana de Exportadores
de Flores v. U.S., 916 F.2d 1571, 1575 (Fed. Cir. 1990) (citation omitted). The futility exception
is narrow. “The mere fact that an adverse decision may have been likely does not excuse a party
from a statutory or regulatory requirement that it exhaust administrative remedies.” Corus Staal
VV v. U.S., 502 F.3d 1370, 1379 (Fed. Cir. 2007) (citation omitted).
Commerce applied the Cohen’s d test to Toyo Kohan’s sales in its calculation of the
weighted-average dumping margin for Toyo Kohan. PDM at 6. Toyo Kohan did not challenge
Commerce’s application of the Cohen’s d test in its case brief. See Toyo Kohan’s Case Br. On
April 30, 2025, Toyo Kohan moved to amend its complaint to include an argument that Commerce
unreasonably applied the Cohen’s d test to groups of sales data that did not meet the prerequisites
for the test set out by the Federal Circuit in Marmen. See Toyo Kohan Mot. to Amend Compl.,
ECF No. 27 (Apr. 30, 2025). The court granted Toyo Kohan’s motion. Toyo Kohan Co., Ltd. v.
United States, Slip Op. 25-77, 2025 WL 1693517 (CIT June 17, 2025).
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As the court noted in its order granting Toyo Kohan’s motion to amend the complaint,
while it is uncontested that Toyo Kohan failed to raise its challenge to Commerce’s application of
the Cohen’s d test in the underlying proceedings, any such efforts would have been futile. Id. at
3. The Federal Circuit had not yet resolved the issue of how Cohen’s d could be applied properly,
while Commerce adhered to the methodology faithfully without ever considering the three factors
that the government here considers factual, after several opportunities to reconsider the matter.
The Federal Circuit’s opinion in Marmen clarified the longstanding dispute about the proper
application of the Cohen’s d test. 	See Marmen, 134 F.4th at 1343–48. 	Accordingly, the court
remands to Commerce to perform its differential pricing analysis consistent with the Federal
Circuit’s opinion in Marmen.
CONCLUSION
For the foregoing reasons, the court remands to Commerce to reevaluate its date of sale
determination and to reperform its differential pricing analysis consistent with this opinion. The
remand shall be issued within 60 days of the conclusion of the ongoing government shutdown.
Comments may be filed 30 days thereafter and any responses 15 days thereafter.
/s/ Jane A. Restani
Jane A. Restani, Judge
Dated: October , 2025
New York, New York
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