[Federal Register Volume 90, Number 95 (Monday, May 19, 2025)]
[Notices]
[Pages 21277-21278]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2025-08914]
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DEPARTMENT OF COMMERCE
International Trade Administration
[Docket No. 250514-0087; RTID: 0625-XC054]
Alternatives to the Use of Cohen's d; Request for Comment
AGENCY: Enforcement and Compliance, International Trade Administration,
Department of Commerce.
ACTION: Notice; request for comment.
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SUMMARY: The U.S. Department of Commerce (Commerce) seeks information
and public comment on how the administering authority can meet the
statutory requirement outlined in section 777A(d)(1)(B)(i) of the
Tariff Act of 1930, as amended (the Act), to identify if ``there is a
pattern of export prices (or constructed export prices) for comparable
merchandise that differ significantly among purchasers, regions, or
periods of time.'' The U.S. Court of Appeals for the Federal Circuit
(Federal Circuit) recently held that it is unreasonable to use the
current Cohen's d test when the Cohen's d test is applied to data that
do not satisfy the statistical assumptions of normal distribution,
equal variances, and sufficiently numerous data. Commerce seeks
information and public comment regarding alternatives to the use of the
Cohen's d test to define when prices differ significantly among
purchasers, regions, and time periods, pursuant to section
777A(d)(1)(B)(i) of the Act.
DATES: Comments must be submitted no later than May 30, 2025.
ADDRESSES: Submit comments, identified by ITA-2025-0004, by either of
the following methods to ensure that the comments are received and
considered:
Electronic Submission: Submit all electronic comments via
the Federal eRulemaking Portal. Go to https://www.regulations.gov and
type Docket No. ITA-2025-0004 in the Search box. Click on the
``Comment'' icon, complete the required fields, and enter or attach
your comments.
Mail: Comments may also be submitted by mail or hand
delivery/courier, addressed to Christopher Abbott, Deputy Assistant
Secretary for Policy and Negotiations, performing the non-exclusive
functions and duties of the Assistant Secretary for Enforcement and
Compliance, Room 18022, Department of Commerce, 1401 Constitution
Avenue NW, Washington, DC 20230. An appointment must be made in advance
with the APO/Dockets Unit at (202) 482-4920 to submit comments in
person by hand delivery or courier.
Instructions: Comments sent by any other method, to any other
address or individual, or received after the end of the comment period,
may not be considered. All comments and information received are a part
of the public record and will generally be posted to https://www.regulations.gov without change. All Personal Identifying
Information (for example, name, address, etc.) voluntarily submitted by
the commenter may be publicly accessible. Do not submit confidential
business information or otherwise sensitive or protected information.
Commerce will not accept comments accompanied by a request that part or
all of the material be treated confidentially because of its business
proprietary nature or for any other reason. Therefore, do not submit
confidential business information or otherwise sensitive or protected
information.
All comments and information must be in English or be accompanied
by a complete English translation to be considered. Commerce will
accept anonymous comments (enter ``N/A'' in the required fields if you
wish to remain anonymous). Attachments to electronic comments will be
accepted in Microsoft Word, Excel, or Adobe PDF file formats only.
Supporting documents and any comments received on this docket may be
viewed at https://www.regulations.gov/document/ITA-2025-0004.
Any questions concerning the process for submitting comments should
be directed to the Enforcement and Compliance Communications Office at
(202) 482-1413 or [email protected].
FOR FURTHER INFORMATION CONTACT: Melissa Porpotage, Enforcement and
Compliance Communications Office at (202) 482-1413.
SUPPLEMENTARY INFORMATION:
Background
The U.S. Department of Commerce (Commerce) administers the
antidumping and countervailing duty (AD/CVD) trade remedy laws.
Commerce generally calculates dumping margins by one of two methods:
(1) by comparing the weighted average of the normal values to the
weighted average
[[Page 21278]]
of the export prices (or constructed export prices) for comparable
merchandise (known as the average-to-average method); or (2) by
comparing the normal values of individual transactions to the export
prices (or constructed export prices) of individual transactions for
comparable merchandise (known as the transaction-to-transaction
method).\1\ The statute also provides for an exception to these two
comparison methodologies when Commerce finds that 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 where such differences cannot be taken into account using one
of the comparison methods described above.\2\ When these criteria are
satisfied, Commerce may compare the weighted average of the normal
values to the export price (or constructed export price) of individual
transactions for comparable merchandise (known as the average-to-
transaction method).
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\1\ See section 777A(d)(1)(A) of the Act (19 U.S.C. 1677f-
1(d)(1)(A)).
\2\ See section 777A(d)(1)(B) of the Act (19 U.S.C. 1677f-
1(d)(1)(B)).
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The Federal Circuit has held that, if statutory conditions are
satisfied, this provision authorizes Commerce to use the average-to-
transaction comparison methodology to address ``masked'' dumping.\3\
The Federal Circuit further held that under the average-to-average
comparison methodology, ``sales of low-priced `dumped merchandise'
would be averaged with (and offset by) the sales of higher-price
`masking' merchandise, giving the impression that no dumping was taking
place and frustrating the antidumping statute's purpose.'' \4\ Commerce
addresses this concern by comparing the weighted average of the normal
values to the export prices (or constructed export prices) of
individual transactions for comparable merchandise, if there is a
pattern of export prices for comparable merchandise that differ
significantly among purchasers, regions, or periods of time, and the
administering authority can explain why such differences cannot be
taken into account using a method described in paragraph (1)(A)(i) or
(ii) of section 777A(d)(1)(B)(i) of the Act. In other words, the
average-to-transaction method can be used when two preconditions are
met: (1) a pattern of prices that differ significantly exists, and (2)
the average-to-average comparison method cannot account for such
differences.
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\3\ See Apex Frozen Foods Private Ltd. v. United States, 862
F.3d 1337, 1341 (Fed. Cir. 2017).
\4\ Id.; see also generally, Differential Pricing Analysis;
Request for Comments, 79 FR 26720 (May 9, 2014).
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In conducting its analysis under section 777A(d)(1)(B)(i) of the
Act, Commerce has applied various methodologies,\5\ and is currently
applying the Cohen's d test as part of its differential pricing
analysis.\6\
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\5\ Id. (discussing various approaches).
\6\ The Federal Circuit recently held that it is unreasonable to
use the current Cohen's d test, as part of its differential pricing
analysis, which Commerce utilized for over a decade, when the test
is applied to data sets that do not satisfy the statistical
assumptions of normal distribution, equal variability, and
sufficiently numerous data. See Marmen Inc. v. United States, 2025
U.S. App. LEXIS, 9506 (Fed. Cir. April 22, 2025). At this time, this
decision is not final and conclusive, as there is a possibility of
rehearing and/or appeal, and the Court's mandate has not been
issued. See Notes of Committee on Rules--1998 Amendment (subdivision
c)--Fed. Rule of Appellate Procedure 41 (``A court of appeals'
judgment or order is not final until issuance of the mandate; at
that time the parties' obligations become fixed.''); GPX Int'l Tire
Corp. v. United States, 678 F.3d 1308, 1312 (Fed. Cir. 2012) (``An
appellate court's decision is not final until its mandate
issues.''); Heartland By-Products, Inc. v. United States, 223 F.
Supp 2d 1317, 1332 (CIT 2002) (``Under the Federal Rules of
Appellate Procedure, an opinion of the appeals court is not final
until it issues its mandate.''). Thus, there is no requirement for
specific agency action in response to this decision at this time;
however, we are not precluded from seeking public comment regarding
potential alternatives to the current approach, which the agency is
free to modify, if appropriate, at any time.
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Commerce is considering possible alternatives to the current
approach for conducting analysis under section 777A(d)(1)(B)(i) of the
Act with respect to identifying when prices differ significantly among
purchasers, regions, or periods of time.
Accordingly, Commerce solicits public comment and information on
potential alternative approaches for analyzing a respondent's U.S.
prices under section 777A(d)(1)(B)(i) of the Act to identify if there
is a pattern of prices for comparable merchandise that differ
significantly among purchasers, regions, or periods of time.
Opportunity for Public Comment and Information
For each submission, please provide comments that specifically
address the statutory criteria outlined under section 777A(d)(1)(B)(i)
of the Act and include an executive summary of your comments (500-word
maximum).
Dated: May 14, 2025.
Christopher Abbott,
Deputy Assistant Secretary for Policy and Negotiations, performing the
non-exclusive functions and duties of the Assistant Secretary for
Enforcement and Compliance.
[FR Doc. 2025-08914 Filed 5-15-25; 11:15 am]
BILLING CODE 3510-DS-P