THE STANLEY WORKS (LANGFANG) FASTENING SYSTEMS CO., LTD., and STANLEY BLACK & DECKER, INC., Plaintiffs, v. UNITED STATES, Defendant.
Court No. 14-00112
UNITED STATES COURT OF INTERNATIONAL TRADE
November 27, 2017
Before: Gary S. Katzmann, Judge
Slip Op. 17-156
OPINION
[Commerce‘s Final Results are sustained and plaintiff‘s motion for judgment on the agency record is denied.]
Dated: November 27, 2017
Stephen C. Tosini, Senior Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, DC, argued for defendant. With him on the supplemental brief were Joyce R. Branda, Acting Assistant Attorney General, Jeanne E. Davidson, Director, Patricia M. McCarthy, Assistant Director and Carrie A. Dunsmore, Trial Attorney. Of counsel on the brief was Justin Becker, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce of Washington, DC. With them on defendant‘s notice of supplemental authority dated July 6, 2015, was Benjamin C. Mizer, Principal Deputy Assistant Attorney General, and of counsel on the notice was Michael T. Gagain, Office of the Chief Counsel for Trade Enforcement & Compliance, U.S. Department of Commerce of Washington, DC. With them on defendant‘s notice of supplemental authority dated November 7, 2017, was Chad S. Readler, Acting Assistant Attorney General.
Katzmann, Judge: Differential pricing -- an analytical method used to identify the presence of targeted dumping wherein a class or kind of foreign merchandise is being or is likely to be sold in the United States at less than its fair value and prices differ significantly among producers, regions, or time periods -- has been the subject of an evolving jurisprudence. The case before the court provides an occasion to consider myriad issues arising from the deployment of the differential pricing methodology. In the final results of the fourth antidumping duty administrative review of Certain Steel Nails from the People‘s Republic of China, the United States Department of Commerce International Trade Administration (“Commerce“) found that respondents The Stanley Works (Langfang) Fastening Systems Co., Ltd. and Stanley Black & Decker, Inc. (collectively “Stanley“) are subject to a weighted average antidumping duty margin of 3.92 percent. 79 Fed. Reg. 19,316, 19,316–18 (Dep‘t Commerce Apr. 8, 2014) (Final Results of the Fourth Antidumping Duty Administrative Review) (“Final Results“) and accompanying Issues and Decision Memorandum (“IDM“). Stanley now asserts that the Final Results are neither in accordance with law nor supported by substantial evidence. Pl.‘s Mot. for J. on the Agency R., Sept. 16, 2014, ECF No. 23 (“Pl.‘s Br.“). The Government
BACKGROUND
I. Antidumping Investigations and Analytical Tools
In an antidumping investigation, Commerce determines whether a class or kind of foreign merchandise is being or is likely to be sold in the United States at less than its fair value, pursuant to
compare the normal values of individual transactions to the export prices (or constructed export prices) of individual transactions for comparable merchandise, per
(i) there is a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and
(ii) [Commerce] explains why such differences cannot be taken into account using a method described in paragraph (1)(A)(i) [the A-A methodology] or (ii) [the T-T methodology].
In contrast to the section of the statute covering investigations, the section which addresses administrative reviews --
19 C.F.R. 351.414(b) describes the methods by which NV [Normal Value] may be compared to export price or constructed export price in less-than-fair-value investigations and administrative reviews (i.e., A-to-A, T-to-T, and A-to-T). These comparison methods are distinct from each other. When using T-to-T or A-to-T comparisons,
a comparison is made for each export transaction to the United States. When using A-to-A comparisons, a comparison is made for each group of comparable export transactions for which the export prices, or constructed export prices, have been averaged together (i.e., for an averaging group). The Department does not interpret the Act or the SAA [Statement of Administrative Action] to prohibit the use of the A-to-A method in administrative reviews, nor does the Act or the SAA mandate the use of the A-to-T method in administrative reviews.
19 C.F.R. 351.414(c)(1) (2012) fills the gap in the statute concerning the choice of a comparison method in the context of administrative reviews. In particular,the Department determined that in both less-than-fair value investigations and administrative reviews, the A-to-A method will be used “unless the Secretary determines another method is appropriate in a particular case” . . . . [Commerce also] look[s] to practices employed by the Department in investigations for guidance on this issue.8
IDM at 19 (quoting
To execute the statutory dictates of
of the Fourth Antidumping Duty Administrative Review, 78 Fed. Reg. 56,861 (Dep‘t Commerce Sept. 16, 2013), P.R. 257. The differential pricing analysis consists of three tests, segregated into two stages. See Apex Frozen Foods Private Ltd. v. United States, 862 F.3d 1337, 1342 n.2 (Fed. Cir. 2017); PDM at 15.
In the first stage, Commerce utilizes two tests to determine whether there exists a pattern of prices that differ significantly, such that an alternative comparison method should be considered, pursuant to
First, for comparable merchandise, the Cohen‘s d test is applied when the test and comparison groups of data each have at least two observations, and when the sales quantity for the comparison group accounts for at least five percent of the total sales quantity of the comparable merchandise. Then, the Cohen‘s d coefficient is calculated 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. The extent of these differences can
be quantified by one of three fixed thresholds defined by the Cohen‘s d test: small, medium or large. Of these thresholds, the large threshold provides the strongest indication that there is a significant difference between the means of the test and comparison groups, while the small threshold provides the weakest indication that such a difference exists. For this analysis, the difference was considered significant if the calculated Cohen‘s d coefficient is equal to or exceeds the large (i.e., 0.8) threshold.
PDM at 15.
Thus, the net price to a particular purchaser, region or time period “passes” the CDT if its calculated Cohen‘s d coefficient is 0.8 or greater. Commerce next applies the Ratio Test, wherein it assesses the extent of the significant price differences for all sales as measured by the CDT:
If the value of sales to purchasers, regions, and time periods that pass the Cohen‘s d test account for 66 percent or more of the value of total sales, then the identified pattern of prices that differ significantly supports the consideration of the application of the A-T method to all sales as an alternative to the A-A method. If the value of sales to purchasers, regions, and time periods that pass the Cohen‘s d test accounts for more than 33 percent and less than 66 percent of the value of total sales, then the results support consideration of the application of an A-T method to those sales identified as passing the Cohen‘s d test as an alternative to the A-A method, and application of the A-A method to those sales identified as not passing the Cohen‘s d test. If 33 percent or less of the value of total sales passes the Cohen‘s d test, then the results of the Cohen‘s d test do not support consideration of an alternative to the A-A method.
Id.
If Commerce determines that both of these tests demonstrate the existence of a pattern of prices that differ significantly enough to warrant consideration of an alternative comparison method, then Commerce proceeds to the second stage of the differential pricing analysis, in which it examines whether using only the A-A method can appropriately account for those differences, pursuant to
II. Procedural History
Commerce issued an antidumping duty order covering certain steel nails from the People‘s Republic of China in August 2008. Antidumping Duty Order: Certain Steel Nails from the People‘s Republic of China, 73 Fed. Reg. 44,961 (Dep‘t Commerce Aug. 1, 2008). Commerce initiated the
Antidumping Duty Administrative Review of Certain Steel Nails from the People‘s Republic Selection of Respondents for Individual Review (Nov. 20, 2012), P.R. 62; Cover Letter enclosing the Antidumping Duty Questionnaire for the Fourth Administrative Review (Nov. 21, 2012), P.R. 65.
Commerce published notice of the preliminary results of the fourth administrative review on September 16, 2013. 78 Fed. Reg. 56,861. Commerce found that the differential pricing analysis that it had used in recent investigations “may be instructive for purposes of examining whether to apply an alternative comparison method in this administrative review.” PDM at 14. Upon conducting the differential pricing analysis, Commerce found that between 33 and 66 percent of Stanley‘s United States sales confirm the existence of a pattern of constructed export prices for comparable merchandise that differ significantly among purchasers, regions, or time periods. Id. at 16. Specifically, Commerce concluded that 64.7 percent of Stanley‘s sales “passed” the CDT, and thus displayed a pattern of significant price differences. Id.; Memorandum to the File Re: Preliminary Results Analysis for Stanley, September 3, 2013 at 14, P.R. 261 (“Preliminary Results Memo“). Commerce accordingly determined that there existed a meaningful difference in the results between the weighted-average dumping margin calculated using the standard A-A method for all U.S. sales and the margin calculated using the appropriate alternative comparison method. PDM at 16. Therefore, Commerce concluded, the A-A method could not take into account the observed differences, and the mixed alternative method was the appropriate means of calculating Stanley‘s weighted-average dumping margin. Id.
Commerce preliminarily calculated a weighted-average dumping margin of 22.90 percent for Stanley using the mixed alternative comparison methodology, wherein Commerce applied the A-T methodology to those of Stanley‘s United States sales that “passed” the CDT, and the A-A methodology to Stanley‘s other United States sales that did not. 78 Fed. Reg. at 56,862; PDM at 16; Preliminary Results Memo at 14. On December 18, 2013, Stanley submitted its Case Brief to Commerce. P.R. 303–05.
On April 8, 2012, Commerce published the Final Results. 79 Fed. Reg. 19,316. Commerce continued to find it appropriate to use the mixed alternative methodology and apply the A-T comparison methodology
Stanley filed this case to contest Commerce‘s Final Results on May 6, 2014. Summons, ECF No. 1; Compl., May 13, 2014, ECF No. 8. On September 16, 2014, Stanley submitted its Motion for Judgment on the Agency Record to the Court. Pl.‘s Br. Specifically, Stanley asserts that the Final Results are neither in accordance with law nor supported by substantial evidence, because: (1) the CDT is an unreasonable means of effecting a targeted dumping analysis under
On November 29, 2016, this court stayed this action pending resolution of Mid Continent Nail Corp. v. United States, CAFC Appeal No. 2016-1426 (Fed. Cir. filed Jan. 6, 2016). Order, Nov. 29, 2016, ECF No. 53. In Mid Continent, the issue on appeal was whether Commerce complied with notice-and-comment rulemaking under the Administrative Procedure Act (“APA“),
After teleconference with the parties on April 19, 2017, this court stayed this action a second time pending the resolution of Apex Frozen Foods Private Ltd. v. United States, CAFC Appeal No. 2015-2085 (Fed. Cir. filed Sept. 29, 2015) and Apex Frozen Foods Private Ltd. v. United States, CAFC Appeal No. 2016-1789 (Fed. Cir. filed Apr. 5, 2016). Order, April 19, 2017, ECF No. 58. The issues in those cases, as relevant here, were whether the Limiting Regulation applies to administrative reviews as well as investigations and whether Commerce‘s Meaningful Difference Test was a reasonable exercise of Commerce‘s discretion. On July 12, 2017, the Federal Circuit issued its Opinions in Apex Frozen Foods Private Ltd. v. United States, 862 F.3d 1337 (Fed. Cir. 2017) (”Apex I“) and Apex Frozen Foods Private Ltd. v. United States, 862 F.3d 1322 (Fed. Cir. 2017) (”Apex II“).
JURISDICTION AND STANDARD OF REVIEW
The Court has jurisdiction over this action pursuant to
ANALYSIS
Stanley argues12 (1) Commerce‘s use of differential pricing to identify the presence
intent; (2) that Commerce applied its Meaningful Difference Test unreasonably; and (3) the Final Results contravene
A. Commerce reasonably applied the differential pricing analysis, the Cohen‘s d Test, and the Meaningful Difference Test in this proceeding.
As explained supra pp.6–9, Commerce‘s differential pricing analysis is broadly divisible into three tests: (1) the CDT, (2) the Ratio Test and (3) the Meaningful Difference Test. Stanley argues that Commerce‘s analysis was deficient for a number of reasons. Stanley also argues that
of greater import than policy arguments advanced by Commerce. Pl.‘s Br. at 18 (citing Ad Hoc Comm. of AZ-NM-TX-FL Producers of Gray Portland Cement v. United States, 13 F.3d 398, 403 (Fed. Cir. 1994) (“Even if the statute‘s ‘primary goal’ may seem to be ill-served . . ., that conclusion does not justify reading into the statute agency discretion that clearly is not there.“)).
The arguments made by Stanley here regarding Commerce‘s authority to apply the A-T methodology in administrative reviews are effectively identical to those addressed and disposed of by the Federal Circuit in JBF RAK LLC v. United States, 790 F.3d 1358 (Fed. Cir. 2015), which was issued during the pendency of this action and conclusively stated that the A-T method is statutorily authorized. The Federal Circuit stated that Commerce may perform its duties in the way it believes most suitable in the absence of any congressionally mandated procedure or methodology. Id. at 1362. “[I]f Congress has explicitly left a gap for the agency to fill, there is an express delegation of authority to the agency to elucidate a specific provision of the statute by regulation. Such legislative regulations are given controlling weight unless they are arbitrary, capricious, or manifestly contrary to the statute.” Id. at 1364 (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 843–44 (1984)). The Federal Circuit found that Commerce, in promulgating and applying the relevant regulation,
Following JBF RAK, the court thus holds, and the parties agreed at oral argument, that Commerce‘s application of the A-T methodology in the instant administrative review, as embodied in the Final Results, was reasonable and in accordance with law.
the differential pricing methodology altogether runs counter to Congressional intent and is thus unreasonable.
1. Commerce reasonably applied the Cohen‘s d Test.
Stanley asserts first that the CDT is designed to assess a different type of data. Pl.‘s Br. at 25. Specifically, Stanley submits that Dr. Cohen, the creator of the CDT, suggests that mean differences rather than standardized mean differences (d values) should be used in measuring effect sizes when comparing groups on a variable measured in units that are well understood:
[when] comparing groups on a variable measured in units that are well understood by your readers (IQ points, or dollars, or number of children, or months of survival) mean differences are excellent measures of effect sizes. When this isn‘t the case . . . the results can be translated into standardized mean differences (d values) or some measure of correlation or association.
Pl.‘s Br. at 25 (emphasis added) (citing Jacob Cohen, “Things I Have Learned (So Far),” American Psychologist, v. 45, no. 12 December 1990, 1304–12). Stanley argues that, consistent with this observation, the Cohen‘s d statistic is not a tool used in business, finance, or other contexts in which a variable, such as dollars, can be easily quantified. Pl.‘s Br. at 26. Stanley thus disputes Commerce‘s characterization of its antidumping analysis as a social science that analyzes a respondent‘s “pricing behavior,” IDM at 26, and argues that Commerce failed to recognize that the selfsame pricing behavior is measured in easily understood units: dollars. Pl.‘s Br. at 26.
Second, Stanley argues that the term “significantly,” found in
Third, Stanley argues that the Cohen‘s d statistic is an estimation tool, suited for making reasonable queries as to the size of a value given only a sample of data. Pl.‘s
Fourth, Stanley argues that Commerce‘s classification of effect sizes as “small,” “medium,” and “large,” is not a widely accepted division, as Commerce claims, IDM at 26–27, and is instead a selection of arbitrary thresholds. Pl.‘s Br. at 33 (citing Cohen, Jacob, Statistical Power for the Behavioral Sciences, 2nd Ed., Lawrence Erlbaum Associates (1988), at 484). Per Stanley, Commerce failed to explain how these thresholds are relevant to the underlying proceeding and thus rendered the Final Results arbitrary.
Stanley next argues that Commerce has failed to explain how its stratification of sales that “pass” the CDT into three tiers based on the ratio of the value of “passed” sales to total sales value -- those (1) below 33 percent; (2) between 33 and 66 percent; and (3) above 66 percent -- identifies a “pattern” of significant price differences pursuant to
At the outset, the court notes that the question of the reasonableness of the utilization of the CDT has not been determined by the Federal Circuit. While the Federal Circuit in Apex I affirmed an opinion of this court holding that the CDT was a permissible exercise of Commerce‘s discretion under the statute, and thus a reasonable methodological choice in accordance with law, see Apex Frozen Foods Private Ltd. v. United States, 40 CIT ___, ___, 144 F. Supp. 3d 1308, 1323–29 (2016), aff‘d, 862 F.3d 1337 (Fed. Cir. 2017), the Federal Circuit did not have occasion to directly address whether Commerce‘s use of CDT was reasonable and in accordance with law. See Apex I, 862 F.3d at 1344 (“Apex does not challenge the results of Commerce‘s application of the Cohen‘s d test . . . .“) and id. at 1342 n.2 (“A high-level summary of the differential pricing analysis is sufficient for our purposes, as the parties do not dispute the use and results on appeal.“).13
When determining whether Commerce‘s interpretation and application of the statute is in accordance with law, this Court must consider “whether Congress has directly spoken to the precise question at issue,” and, if not, whether the agency‘s interpretation of the statute is reasonable. Apex I, 862 F.3d at 1344 (quoting Chevron U.S.A. Inc. v. Natural Res. Def. Council, Inc., 467 U.S. 837, 842–43 (1984)). If the Court determines that the statute is silent or ambiguous with respect to the specific issue, then the traditional second prong of the Chevron analysis asks what level of deference is owed Commerce‘s interpretation. Chevron, 467 U.S. at 842–43; see United States v. Mead Corp., 533 U.S. 218, 228 (2001). ”Chevron requires us to defer to the
agency‘s interpretation of its own statute as long as that interpretation is reasonable.” Koyo Seiko Co., Ltd. v. United States, 36 F.3d 1565, 1573 (Fed. Cir. 1994); see Kyocera Solar, Inc. v. United States Int‘l Trade Comm‘n, 844 F.3d 1334 (Fed. Cir. 2016).
The statute does not mandate how Commerce is to conduct its targeted dumping analysis. See
The court finds that Commerce‘s application of the CDT here constitutes a reasonable exercise of its discretion under the statute, and that as to each of Stanley‘s arguments, Commerce adequately explained on the record the choices it made in employing that methodology. The court is not persuaded by Stanley‘s arguments that the CDT is inapposite to the pricing behavior under Commerce‘s consideration, or by Stanley‘s characterization of the CDT as “an estimation tool” that renders the methodology inappropriate when all data points are known to Commerce. Stanley‘s academic citations, Pl.‘s Br. at 25–26, do not preclude the possibility that the CDT could be deployed in a pricing analysis where all of the prices are known to Commerce, even if, arguendo, another methodology were more suited to determining the presence of significant differences in price among purchasers, regions, or periods of time. “[W]e cannot say that the methodology Commerce has chosen to implement Congress‘s statutory scheme is unreasonable, even where its justification may be . . . less than ideal.” Apex I, 862 F.3d at 1347 (citation omitted); see JBF RAK, 790 F.3d at 1364 (“Because Congress did not provide for a direct methodology, Commerce properly ‘fill[ed] th[at] gap.‘” (quoting Chevron, 467 U.S. at 843)).
Commerce explained in the IDM its justifications for utilizing the CDT, stressing its focus on the value of effect sizes in quantifying the differences between data points. IDM at 25 & n.110 (quoting Xanthan Gum From the People‘s Republic of China: Final Determination of Sales at Less Than Fair Value, 78 Fed. Reg. 33,351 (Dep‘t Commerce June 4, 2013) (“Xanthan Gum“) and accompanying IDM at 24 (quoting Coe, Robert, “It‘s the Effect Size,
The court is likewise unpersuaded by Stanley‘s argument that Commerce‘s designated effect sizes -- “small,” “medium,” and “large” -- are arbitrary such that the CDT methodology and the Final Results are arbitrary and not in accordance with law. While Stanley may dispute the ubiquity of effect size divisions into those three thresholds, the court does not see that Commerce applies the thresholds it has chosen in an arbitrary manner. IDM at 26–27. Commerce explained its decision to consider the large threshold, a 0.8 Cohen‘s d coefficient, to be the baseline measure of a significant difference in prices. Id. at 27 (citing PDM at 15). While Commerce may not have “explain[ed] how these thresholds relate to selling nails,” Pl.‘s Br. at 34, per se, it did explain the relevance of the thresholds in the overall application of the CDT and its differential pricing analysis. PDM at 14–15. Commerce responded to Stanley‘s concerns, and cited an academic article in support of its deployment of the relevant thresholds. IDM at 26–27 (quoting Xanthan Gum IDM at 24 (quoting Coe, supra p.19)). Commerce noted that it restricts CDT “passage” to those coefficient results that meet or exceed the “large” threshold of 0.8. Id. at 27. Commerce thus explained its methodological choices and reasonably supplied justifications for them. See State Farm, 463 U.S. at 48–49. Even assuming arguendo that Commerce‘s justification for utilizing these thresholds is not optimal or consonant with some universal standard, the “court is not to substitute its judgment for that of the agency, and should uphold a decision of less than ideal clarity if the agency‘s path may reasonably be discerned.” FCC v. Fox Television Stations, Inc., 556 U.S. 502, 513–14 (2009), cited in Apex I, 862 F.3d at 1347. Commerce‘s application of the thresholds therefore was not arbitrary. See Changzhou Wujin Fine Chem. Factory Co. v. United States, 701 F.3d 1367, 1377 (Fed. Cir. 2012) (“[H]ere we are evaluating the agency‘s reasoning, which is reviewed under the arbitrary and capricious (or contrary to law) standard.“).
The court turns to Stanley‘s argument that the CDT does not measure “statistical significance” and thus is an unreasonable execution of the statute. Stanley‘s reading of
Commerce, in applying an alternative methodology, must determine the presence of “a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time . . . .”
Here, Commerce has deployed the CDT and the Meaningful Difference Test, supra pp.6–9, to assess the presence and significance of differences of United States sales prices among purchasers, regions, or periods of time. Commerce reasonably explained that it found no cause to read the statute as requiring an assessment of “statistical significance.” IDM at 28. As explained supra, the statute demands the application of no particular methodology. “When a statute fails to make clear ‘any Congressionally mandated procedure or methodology for assessment of the statutory tests,’ Commerce ‘may perform its duties in the way it believes most suitable.‘” Apex I, 862 F.3d at 1349 (quoting JBF RAK, 790 F.3d at 1363). Here, Commerce reasonably exercised its discretion under the statute by deploying the CDT. Further, Commerce directly answered Stanley‘s argument that “statistical significance” is the applicable statutory standard:
Statistical significance is used to evaluate whether the results of an analysis rise above sampling error (i.e., noise) present in the analysis. The Department‘s application of the Cohen‘s d test is based on the mean and variance calculated using the entire population of the respondent‘s sales in the U.S. market, and, therefore, these values contain no sampling error. Accordingly, statistical significance is not a relevant consideration in this context.
IDM at 29. The agency thus did explain its decision to deploy its chosen thresholds such that its application of them is not arbitrary. Even assuming Stanley‘s proffered methodology, which would involve some stricter “statistical significance” standard, constituted a plausible interpretation of the statute, “it does not necessarily follow that Commerce‘s different interpretation would be unreasonable or impermissible.” Apex I, 862 F.3d at 1347 (citing Chevron, 467 U.S. at 843 n.11 (“The court need not conclude that the agency construction was the only one it permissibly could have adopted to uphold the construction . . . .“)).
Having found the CDT to be a reasonable methodology in exercise of Commerce‘s statutory discretion, the court similarly finds that Commerce did not apply the CDT to Stanley‘s data in an unreasonable fashion. The court is not persuaded by Stanley‘s submitted data, attached to its brief as Addendum A. See Pl.‘s Br. at Add. A. Stanley states that, of 111 respondents described in its addendum, while 27 respondents either had no sales that “passed” the CDT or had “pass” rates below the 33 percent threshold, “the average CDT ‘pass’ rate for the remaining 84 respondents was 67.99 percent . . . . In other words, in preliminary decisions Commerce has concluded that 75 percent of the respondents investigated each targeted more than two-thirds of their sales . . . It is unreasonable to the point of preposterous to conclude that 75 percent of investigated companies do so.” Pl.‘s Br. at 40 (emphasis added).
This assertion is not correct. By Stanley‘s own reading of a CDT “pass” rate corresponding directly to targeting, the data in Addendum A shows that 46 respondents, and not more than 75 percent, of the 111 listed respondents “each targeted more than two-thirds [i.e., met or exceeded the 66 percent CDT “pass” rate threshold] of their sales.” Pl.‘s Br. at Add. A. More pertinently, Commerce applied the A-T alternative comparison method in only 18 of those instances. Id. Stanley‘s arguments that the CDT produces biased results are therefore unpersuasive.14
a. Stanley failed to exhaust its administrative remedies regarding the Meaningful Difference Test.
Stanley argues that differential pricing cannot explain, as required by
Citing
Notes
the price at which the foreign like product is first sold (or, in the absence of a sale, offered for sale) for consumption in the exporting country, in the usual commercial quantities and in the ordinary course of trade and, to the extent practicable, at the same level of trade as the export price or constructed export price . . . .
the price at which the subject merchandise is first sold (or agreed to be sold) before the date of importation by the producer or exporter of the subject merchandise outside of the United States to an unaffiliated purchaser in the United States or to an unaffiliated purchaser for exportation to the United States, as adjusted under subsection (c) of this section.
the price at which the subject merchandise is first sold (or agreed to be sold) in the United States before or after the date of importation by or for the account of the producer or exporter of such merchandise or by a seller affiliated with the producer or exporter, to a purchaser not affiliated with the producer or exporter, as adjusted under subsections (c) and (d) of this section.
Exception.
The administering authority may determine whether the subject merchandise is being sold in the United States at less than fair value by comparing the weighted average of the normal values to the export prices (or constructed export prices) of individual transactions for comparable merchandise, if—
(i) there is a pattern of export prices (or constructed export prices) for comparable merchandise that differ significantly among purchasers, regions, or periods of time, and
(ii) the administering authority explains why such differences cannot be taken into account using a method described in paragraph (1)(A)(i) or (ii).
Reviews.
In a review under section 1675 of this title, when comparing export prices (or constructed export prices) of individual transactions to the weighted average price of sales of the foreign like product, the administering authority shall limit its averaging of prices to a period not exceeding the calendar month that corresponds most closely to the calendar month of the individual export sale.
(1) Average-to-average method. The “average-to-average” method involves a comparison of the weighted average of the normal values with the weighted average of the export prices (and constructed export prices) for comparable merchandise.
(2) Transaction-to-transaction method. The “transaction-to-transaction” method involves a comparison of the normal values of individual transactions with the export prices (or constructed export prices) of individual transactions for comparable merchandise.
(3) Average-to-transaction method. The “average-to-transaction” method involves a comparison of the weighted average of the normal values to the export prices (or constructed export prices) of individual transactions for comparable merchandise.
If it is not practicable to make individual weighted average dumping margin determinations [in investigations or administrative reviews] because of the large number of exporters or producers involved in the investigation or review, the administering authority may determine the weighted average dumping margins for a reasonable number of exporters or producers by limiting its examination to--
(A) a sample of exporters, producers, or types of products that is statistically valid based on the information available to the administering authority at the time of selection, or
(B) exporters and producers accounting for the largest volume of the subject merchandise from the exporting country that can be reasonably examined.