CIT Sustains Use of Cohen's 'd' Test in Discovering 'Masked' Dumping

The Court of International Trade on Dec. 18 upheld the Commerce Department's use of a 0.8 threshold for Cohen's d test to analyze masked dumping, finding Commerce's explanation for the methodology reasonable.

Adding to a growing amount of case law on the test, Judge Jennifer Choe-Groves focused on the agency's explanation that it used the entire population of sales prices for its use of the Cohen's d test. As a result, Commerce was not beholden to the statistical assumptions required when using the test, including normal distribution and roughly equal variances, that are needed when only a sample of the data is used. The ruling marks the third opinion this year wherein Choe-Groves upheld the explanation's validity (see 2302230056 and 2303200066).

The court also said that exporter SeAH Steel Corp. didn't fail to exhaust its administrative remedies on the topic since Commerce didn't issue a draft of the fourth remand results. The case involves the 2015-16 antidumping duty review on oil country tubular goods from South Korea.

The U.S. Court of Appeals for the Federal Circuit previously remanded the case so that Commerce could consider how the review comports with the appellate court's prior ruling in Stupp Corp. v. U.S. In that opinion, the Federal Circuit questioned Commerce's use of the Cohen's d test based on the fact that the data used by the agency didn't adhere to basic statistical assumptions that seemingly must be met if the test is to be run properly.

On remand, Commerce said that these assumptions don't need to be met if the entire population of data is being used and that academic literature doesn't support the claim that the 0.8 threshold used in the test "was derived based on the statistical criteria or that the use of the threshold should only be limited to situations when sampled data exhibit a normal distribution or similarly equal variances." Regarding the threshold, Commerce again said this was the case given the agency's use of the entire population of data.

(Nexteel Co. v. United States, Slip Op. 23-181, CIT Consol. # 18-00083, dated 12/18/23; Judge: Jennifer Choe-Groves; Attorneys: Jeffrey Winton of Winton & Chapman for consolidated plaintiff SeAH Steel Corp.; Claudia Burke for defendant U.S. government)