The U.S. Department of Commerce is seeking information and public comments regarding its use of the Cohen's d test in assessing targeted dumping. Targeted dumping refers to the practice of selling goods at prices that differ significantly among particular purchasers, regions, or time periods. Under section 777A(d)(1)(B)(i) of the Tariff Act of 1930, as amended, Commerce may apply the average-to-transaction comparison method if it identifies such a pattern and determines that the standard comparison methods cannot account for these differences.
Currently, Commerce uses the Cohen's d test as part of its differential pricing analysis to identify whether there is a pattern of targeted dumping from respondents in antidumping cases. The test is meant to measure whether price differences among customers, regions, or time periods are large enough to be considered significant. This test has been part of Commerce's antidumping analysis for more than ten years. However, it has faced criticism, especially when used on data that does not meet the test's basic requirements.
In a Federal Register notice published on May 19, Commerce stated that it is looking into potential alternatives to its current approach for assessing targeted dumping. This comes after a decision at the U.S. Court of Appeals for the Federal Circuit in April, where the court concluded in Marmen Inc. vs. U.S. that Commerce's use of the Cohen's d test led to incorrect dumping margin calculations for a wind turbine importer.
The court criticized Commerce's use of the test on data that did not meet the necessary statistical assumptions—specifically, normal distribution, equal variances, and sufficiently large sample sizes. Although Commerce notes that the Marmen decision is not yet final due to the possibility of rehearing or appeal, it has nevertheless initiated this comment process to evaluate whether alternative methodologies may better fulfill its statutory obligations.
The deadline for submitting public comments is May 30, 2025.
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