Slip Op. 26-111
UNITED STATES COURT OF INTERNATIONAL TRADE
MAQUILACERO S.A. DE C.V.
AND TECNICAS DE FLUIDOS
S.A. DE C.V.,
Plaintiffs,
and
PERFILES LM, S.A. DE C.V.,
Consolidated Plaintiff,
Before: Jennifer Choe-Groves, Judge
v.
Consol. Court No. 23-00091
UNITED STATES,
Defendant,
and
NUCOR TUBULAR PRODUCTS
INC.,
Defendant-Intervenor.
OPINION AND ORDER
[Sustaining the U.S. Department of Commerce’s Second Remand
Redetermination.]
Dated: September 14, 2026
Diana Dimitriuc Quaia, John M. Gurley, Tyler J. Kimberly, ArentFox Schiff LLP, of Washington, D.C., and Yun Gao, ArentFox Schiff LLP, of New York, N.Y., for Consol. Court No. 23-00091 Page 2
Plaintiffs Maquilacero S.A. de C.V. and Tecnicas De Fluidos S.A. de C.V.
Jeffrey M. Winton, Michael J. Chapman, Amrietha Nellan, and Vi N. Mai, Winton & Chapman PLLC, of Washington, D.C., for Consolidated Plaintiff Perfiles LM, S.A. de C.V. Also on the brief was Rachel Hauser.
Kristin E. Olson, Trial Attorney, Commercial Litigation Branch, Civil Division, U.S. Department of Justice, of Washington, D.C., for Defendant United States. With her on the brief were Brett A. Shumate, Assistant Attorney General, Patricia M. McCarthy, Director, and Franklin E. White, Jr., Assistant Director. Of counsel on the brief was Karl Mueller, Attorney, Office of the Chief Counsel for Trade Enforcement and Compliance, U.S. Department of Commerce, of Washington, D.C.
Alan H. Price, Robert E. DeFrancesco, III, and Kimberly A. Reynolds, Wiley Rein, LLP, of Washington, D.C., for Defendant-Intervenor Nucor Tubular Products Inc.
Choe-Groves, Judge: This action concerns the final determination published
by the U.S. Department of Commerce (“Commerce”) in the administrative review
of the antidumping duty order on light-walled rectangular pipe and tube from
Mexico. See Light-Walled Rectangular Pipe and Tube from Mexico (“Final
Results”), 88 Fed. Reg. 15,665 (Dep’t of Commerce Mar. 14, 2023) (final results
of antidumping duty administrative review; 2020–2021), PR 151,1 and
accompanying Issues and Decision Memorandum for the Final Results of the
Antidumping Duty Administrative Review; 2020-2021 (Mar. 7, 2023), PR 146;
Light-Walled Rectangular Pipe and Tube from Mexico (“Amended Final
1
Citations to the administrative record reflect the public administrative record (“PR”), confidential record (“CR”), public remand administrative record (“PRR”), and second public remand record (“SPRR”) document numbers in this case, ECF Nos. 46, 47, 75, 76, 93 & 94.
Consol. Court No. 23-00091 Page 3
Results”), 88 Fed. Reg. 30,723 (Dep’t of Commerce May 12, 2023) (amended final
results of antidumping duty administrative review; 2020-21), PR 160.
Before the Court are Commerce’s Final Results of Redetermination Pursuant
to Court Remand (“Second Remand Redetermination”), ECF No. 83-1, filed
pursuant to the Court’s remand order following the U.S. Court of Appeals for the
Federal Circuit’s (“CAFC”) opinion in Marmen Inc. v. United States (“Marmen
III”), 134 F.4th 1334 (Fed. Cir. 2025). See Second Remand Redetermination;
Order (June 17, 2025), ECF No. 78; see also Final Results of Redetermination
Pursuant to Court Remand (“Remand Redetermination”), ECF No. 61-1, PRR 7;
Marmen Inc. v. United States (“Marmen I”), 45 CIT __, 545 F. Supp. 3d 1305
(2021); Marmen Inc. v. United States (“Marmen II”), 47 CIT __, 627 F. Supp. 3d
1312 (2023); Marmen Inc. v. United States (“Marmen IV”), 50 CIT __, No. 20-00169, 2026 WL 1726609 (June 15, 2026).
For the following reasons, the Court sustains the Second Remand
Redetermination.
BACKGROUND
The Court presumes familiarity with the underlying facts and procedural
history of this case and recites the facts relevant to the Court’s review of the
Second Remand Redetermination. See Maquilacero S.A. de C.V. et al. v. United
States (“Maquilacero I”), 48 CIT __, 731 F. Supp. 3d 1346 (2024). Consol. Court No. 23-00091 Page 4
In October 2021, Commerce initiated an administrative review of lightwalled rectangular pipe and tube from Mexico for the period covering August 1,
2020 through July 31, 2021. Initiation of Antidumping and Countervailing Duty
Administrative Reviews, 86 Fed. Reg. 55,811, 55,813 (Dep’t of Commerce Oct. 7,
2021), PR 11. In the Amended Final Results, Commerce assigned a weightedaverage dumping margin of 9.2% to Maquilacero S.A. de C.V. (“Maquilacero”)
and Tecnicas de Fluidos S.A. de C.V. (“TEFLU”) and 5.32% to Perfiles LM, S.A.
de C.V. (“Perfiles”) (collectively, “Plaintiffs”). 88 Fed. Reg. at 30,724.
Commerce utilized the Cohen’s d test in its differential pricing analysis to calculate
the dumping margins. See Remand Redetermination at 4. In Marmen III, the
CAFC vacated and remanded Marmen II for Commerce to fashion a differential
pricing analysis that did not rely on the Cohen’s d test. 134 F.4th at 1343–48.
After the Court remanded this case for further compliance with the CAFC’s
mandate in Marmen III, Commerce discontinued its use of the Cohen’s d test and
reformulated its differential pricing analysis to consist of three steps: (1) a new
“price difference test” in place of the prior Cohen’s d test; (2) the “ratio test;” and
(3) the “meaningful difference test.” Second Remand Redetermination at 5–9.
Commerce’s new analysis revised the margin calculations for Maquilacero and
TEFLU, which resulted in weighted-average dumping margins of 10.67% for Consol. Court No. 23-00091 Page 5
Maquilacero and TEFLU, and 6.06% for the non-selected parties such as Perfiles.
Id. at 3.
JURISDICTION
The Court has jurisdiction under 19 U.S.C. § 1516a(a)(2)(B)(iii) and 28
U.S.C. § 1581(c), which grant the Court authority to review actions contesting the
final results of an administrative review of an antidumping duty order. The Court
shall hold unlawful any determination found to be unsupported by substantial
evidence on the record or otherwise not in accordance with law. 19 U.S.C.
§ 1516a(b)(1)(B)(i). The Court also reviews determinations made on remand for
compliance with the Court’s remand order. Ad Hoc Shrimp Trade Action Comm.
v. United States (“Ad Hoc Shrimp”), 38 CIT 727, 730, 992 F. Supp. 2d 1285, 1290
(2014), aff’d, 802 F.3d 1339 (Fed. Cir. 2015).
DISCUSSION
To comply with the CAFC’s opinion in Marmen III, Commerce
discontinued its use of the Cohen’s d test and replaced it with a new “price
difference test” for evaluating whether price differences are significant among
purchasers, regions, or time periods, which is the first step of Commerce’s
differential pricing analysis. Second Remand Redetermination at 4–5. Commerce
adopted the “price difference test” as step one of its differential pricing analysis in
the Second Remand Redetermination as follows:
Consol. Court No. 23-00091 Page 6
The differential pricing analysis used here examines whether there
exists a pattern of prices for comparable merchandise that differ
significantly among purchasers, regions, or time periods. The analysis
evaluates all U.S. sales by purchaser, region, and time period to
determine whether a pattern of prices that differ significantly exists. If
such a pattern is found, then the differential pricing analysis evaluates
whether such differences can be taken into account when using the Ato-A method to calculate the weighted-average dumping margin. The
analysis incorporates default group definitions for purchasers, regions,
time periods, and comparable merchandise. Purchasers are based on the
reported consolidated customer codes. Regions are defined using the
reported destination code (i.e., ZIP code) and are grouped into regions
based upon standard definitions published by the U.S. Census Bureau.
Time periods are defined by the quarter within the POR based upon the
reported date of sale. For purposes of analyzing sales transactions by
purchaser, region and time period, comparable merchandise is defined
using the product control number (CONNUM) and all characteristics
of the U.S. sales, other than purchaser, region, and time period, that
Commerce uses in making comparisons between EP (or CEP) and NV
for the individual dumping margins.
In the first stage of the differential pricing analysis used here, the “price
difference test” is applied to determine whether prices differ
significantly. For comparable merchandise, the price difference test
examines whether the weighted-average net price to a given purchaser,
region or time period is within two percent of the weighted average net
price to all other purchasers, regions or time periods. If the weightedaverage net price to the given purchaser, region or time period falls
outside of the plus or minus two percent band around the weightedaverage net price to all other purchasers, regions or time periods, then
the prices to that given purchaser, region or time period are found to
differ significantly and those sales to the given purchaser, region or
time period pass the price difference test.
Next, the “ratio test” assesses the extent of the significant price
differences for all U.S. sales as measured by the price difference test.
The ratio test calculates the ratio of the total value of sales that pass the
price difference test to the total value of sales by the respondent in the
United States during the [period of review]. If 33 percent or less of the
total value of sales passes the price difference test, then the results of Consol. Court No. 23-00091 Page 7
the price difference and ratio tests do not support consideration of the
A-to-T method. If more than 33 percent of the total value of U.S. sales
passes the price difference test, then Commerce will find that a pattern
of prices existed during the [period of review]. Consequently,
Commerce will examine whether there is a meaningful difference in the
weighted-average dumping margins calculated using the standard A-toA method and using the alternative A-to-T method.
If both tests in the first stage (i.e., the price difference test and the ratio
test) demonstrate the existence of a pattern of prices that differ
significantly such that the A-to-T method could be considered, then in
the second stage of the differential pricing analysis, Commerce
examines whether using only the A-to-A method can account for such
differences. In considering this question, Commerce examines whether
using the A-to-T method yields a meaningful difference in the
weighted-average dumping margin as compared to that resulting from
the use of the A-to-A method. If the difference between the two
calculations is meaningful, then this demonstrates that the A-to-A
method cannot account for differences in the respondent’s pricing
behavior in the U.S. market, such as those observed in this analysis,
and, therefore, use of the A-to-T method may be appropriate. A
difference in the weighted-average dumping margins is considered
meaningful if: (1) there is a 25 percent relative change in the weightedaverage dumping margins between the A-to-A method and the A-to-T
method where both rates are above the de minimis threshold; or (2) the
resulting weighted-average dumping margins between the A-to-A
method and the A-to-T method move across the de minimis threshold.
Id. at 7–9.
Commerce determined that 98.12% of the value of U.S. sales for
Maquilacero and TEFLU passed the price difference test. Id. at 9.
Commerce determined that this percentage confirmed the existence of a
pattern of prices that differed significantly among purchasers, regions, or
time periods. Id. In the Second Remand Redetermination, Commerce
Consol. Court No. 23-00091 Page 8
determined that the A-to-A method could not account for such differences
“because the weighted-average dumping margin crosse[d] the de minimis
threshold when calculated using the A-to-A method and when calculated
using the A-to-T method.” Id. Accordingly, Commerce applied the A-to-T
method to calculate the weighted-average dumping margins for both
Maquilacero and TEFLU. Id.
I. Reasonableness of Commerce’s Differential Pricing Analysis
As a threshold issue, Perfiles asserts that the correct standard of review for
Commerce’s interpretation of 19 U.S.C. § 1677f-1(d)(1)(B), and thus Commerce’s
differential pricing analysis, is not reasonableness but whether the interpretation
accords with the statute in light of Loper Bright Enters. v. Raimondo (“Loper
Bright”), 603 U.S. 369 (2024). See Pl. Perfiles Comments Opp’n Final
Redetermination Remand (“Consol. Pl.’s Br.”) at 6–7, ECF No. 88. Defendant
United States (“Defendant” or “Government”) claims that the standard of review
for Commerce’s differential pricing analysis is reasonableness, and notes the
CAFC’s use of the reasonableness standard after Loper Bright in Marmen III when
reviewing the analysis. Def.’s Comments Supp. Remand Redetermination (“Def.’s
Br.”) at 11–12 & 15, ECF No. 92 (citing Marmen III, 134 F.4th at 1348).
The relevant standard for reviewing Commerce’s selection of statistical tests
and numerical cutoffs is reasonableness. See Stupp Corp. v. United States Consol. Court No. 23-00091 Page 9
(“Stupp”), 5 F.4th 1341, 1353 (Fed. Cir. 2021) (“Our precedents make clear that
the relevant standard for reviewing Commerce’s selection of statistical tests and
numerical cutoffs is reasonableness, not substantial evidence.”) (citing Mid
Continent Steel & Wire, Inc. v. United States, 940 F.3d 662, 667 (Fed. Cir. 2019)
(“In carrying out its statutorily assigned tasks, Commerce has discretion to make
reasonable choices within statutory constraints.”); Apex Frozen Foods Priv. Ltd. v.
United States (“Apex Frozen Foods”), 862 F.3d 1337, 1346 (Fed. Cir. 2017)
(holding Commerce’s “meaningful difference” test to be “reasonable”)). Further,
the CAFC applied a “reasonableness” standard in evaluating whether it was
“unreasonable for Commerce to use [the] Cohen’s d test as part of its differential
pricing analysis[.]” Marmen III, 134 F.4th at 1345. Accordingly, the Court
reviews Commerce’s Second Remand Redetermination and its “price difference
test” under the reasonableness standard.
Commerce shall determine whether subject merchandise is being sold at less
than fair value:
(i) by comparing the weighted average of the normal values to the
weighted average of the export prices (and constructed export prices)
for comparable merchandise, or
(ii) by comparing the normal values of individual transactions to the
export prices (or constructed export prices) of individual transactions
for comparable merchandise.
Consol. Court No. 23-00091 Page 10
19 U.S.C. § 1677f-1(d)(1)(A). Section 1677f-1(d)(1)(B) provides an exception,
when Commerce:
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).
Id. § 1677f-1(d)(1)(B).
Congress implemented subsection (d) to address the concern that the A-to-A
method for calculating dumping margins “could conceal ‘targeted dumping.’”
Uruguay Round Agreements Act, Statement of Administrative Action, H.R. Doc.
No. 103–316, vol. 1 at 842–83 (1994), reprinted in 1994 U.S.C.C.A.N. 4040,
4177–78 (“SAA”). Under subsection (d), Commerce is allowed to calculate
dumping margins using the A-to-T method in situations when the A-to-A method
“cannot account for a pattern of prices that differ significantly among purchasers,
regions, or time periods, i.e., where targeted dumping may be occurring[,]” but
only after Commerce first “establish[es] and provide[s] an explanation why it
cannot account for such differences through the use of [the A-to-A method].” Id.
at 4178 (emphasis omitted). The SAA provides that “Commerce will proceed on a Consol. Court No. 23-00091 Page 11
case-by-case basis, because small differences may be significant for one industry
or one type of product, but not for another.” Id. “The rationale behind that
statutory exception is that targeted dumping is more likely to be occurring when
export prices fit a pricing model that differs significantly among different periods
of time, different purchasers, or different regions of the United States.” Stupp, 5
F.4th at 1345 (citing Apex Frozen Foods, 862 F.3d at 1347).
Plaintiffs argue that a 2% threshold in the price difference test does not
measure “significant” price differences as contemplated by 19 U.S.C. § 1677f1(d)(1)(B). Pls.’ Maquilacero & Tecnicas De Fluidos Comments Opp’n Second
Remand Redetermination (“Pls.’ Br.”) at 17–21, ECF Nos. 89, 90; Consol. Pl.’s Br.
at 16–18. Plaintiffs contend that Commerce’s consideration of a significant price
difference to be prices that differ by more than 2% ignores the context in which
prices exist. Pls.’ Br. at 17–19; Consol. Pl.’s Br. at 16–18. Perfiles claims that the
ordinary meaning of “pattern” requires that Commerce ensure that the observed
price differences are not random and reflect a pattern. Consol. Pl.’s Br. at 8–9.
Maquilacero and TEFLU further claim that dictionary definitions of “significant”
as meaning “important or noticeable” indicate that the 2% threshold falls short of
the statute’s requirements. Pls.’ Br. at 17–18. In the Second Remand
Redetermination, Commerce explained that:
Commerce introduced the price difference test to determine whether
prices for comparable merchandise differ significantly among
Consol. Court No. 23-00091 Page 12
purchasers, regions, or time periods. The price difference test does not
stipulate an absolute value as a threshold (e.g., $5 per kilogram) but a
threshold that measures relative differences (i.e., a percentage) on a
case-by-case basis by a comparison to case- and product-specific
averages dependent upon the customer, region, and temporal data
provided by the respondent, specific to the period under examination
and to the merchandise, and thus, the market under consideration.
Second Remand Redetermination at 14. Commerce justified applying this de
minimis standard because a 2% threshold is used by Commerce in other contexts.
Id. at 15–17 (referring to the arm’s-length test under 19 C.F.R. § 351.403(c) and
the de minimis threshold for estimated weighted-average dumping margins under
19 U.S.C. §§ 1673b(b)(3), 1673d(a)(4)). Plaintiffs assert that Commerce’s 2%
threshold is not validated by its use in other contexts such as the arm’s-length test
and the de minimis standard, because the statute requires a case-by-case analysis
whereas the other tests derive their thresholds from statutes. See Pls.’ Br. at 20;
Consol. Pl.’s Br. at 17. Plaintiffs claim that this “does not . . . account for price
variations specific to the market in question.” Consol. Pl.’s Br. at 13; see also Pls.’
Br. at 15–17. The Second Remand Redetermination explains how the new
methodology specifically considers relative differences in prices within the U.S.
market for the respondent’s merchandise across multiple categories, i.e.,
purchasers, regions, time periods, as opposed to applying an absolute or brightline
threshold. Second Remand Redetermination at 14. The 2% threshold provides a Consol. Court No. 23-00091 Page 13
consistent metric for measuring the price differences, which allows for case-bycase variation. Id.
Plaintiffs argue additionally that the legislature’s case-by-case basis
directive2 is not honored in Commerce’s 2% threshold and that Commerce
rejected previously a 2% test of this nature. Pls.’ Br. at 7–14, 18–19;
Consol. Pl.’s Br. at 12. Plaintiffs note that in a previous case, Commerce
rejected the 2% test and explained that such a brightline threshold “. . . does
not adequately account for price variations specific to the market in
question.” Consol. Pl.’s Br. at 12 (quoting Certain Steel Nails from the
People’s Republic of China, 73 Fed. Reg. 33,977 (Dep’t of Commerce June
16, 2008) (notice of final determination of sales at not less than fair value),
and accompanying Issues and Decision Memorandum for the Investigation
of Certain Steel Nails from the People’s Republic of China, A-520-802 at
Comment 7, (June 6, 2008)); Pls.’ Br. at 11. Commerce explained that the
“Nails Test” referred to by Plaintiffs was derived from the P/2 test, and was
replaced with a methodology called the “differential pricing analysis.”
Second Remand Redetermination at 13–15. “The only common aspect of
2
“[I]n determining whether a pattern of significant price differences exist[,] Commerce will proceed on a case-by-case basis, because small differences may be significant for one industry or one type of product, but not for another.” SAA at 842–83,1994 U.S.C.C.A.N. at 4178.
Consol. Court No. 23-00091 Page 14
the P/2 test and the price difference test is the two percent threshold.” Id. at
15.3
The CAFC has affirmed Commerce’s use of the de minimis threshold
in another part of the differential pricing test, the “meaningful difference
test.” See Apex Frozen Foods, 862 F.3d at 1346 (“[W]e agree that the
difference in the actual antidumping rates that would be assessed—below de
minimis when calculated with the [A-to-A] methodology; above de minimis
when calculated using an alternative methodology—indeed informs the
question of whether the [A-to-A] methodology can adequately account for a
pattern of significant price differences ‘because [A-to-A] masked the
dumping that was occurring as revealed by the [A-to-T] calculated
margin.’”) (quoting Apex Frozen Foods Priv. Ltd. v. United States, 40 CIT
__, __, 144 F. Supp. 3d 1308, 1333 n.24 (2016)). Based upon the
explanation offered by Commerce in the Second Remand Redetermination
and the CAFC’s Opinion in Marmen III, the Court concludes that
Commerce’s adoption of the 2% threshold in the first stage of its differential
3
“However, the P/2 test only examines whether prices to alleged ‘targets’ are at least two percent lower than the prices for all other sales, whereas the price difference test considers whether prices to each purchaser, region, or time period are at least two percent higher or lower than the prices for all other sales.” Second Remand Redetermination at 15.
Consol. Court No. 23-00091 Page 15
pricing analysis in the new “price difference test” is reasonable and complies
with Marmen III.
Maquilacero and TEFLU argue that Commerce failed to provide an adequate
explanation for its determination regarding significant price differences. Pls.’ Br.
at 15–17. Maquilacero and TEFLU claim that Commerce’s determination that
Maquilacero/TEFLU’s pricing variations represent targeted dumping is not
supported by substantial evidence because Commerce failed to address evidence
linking the price differences to costs of manufacturing, rather than targeted
dumping. Id. at 15–17. For the Preliminary Results, Commerce determined that
“over a 12-month period,” the changes in Maquilacero and TEFLU’s costs of
manufacturing were “significant enough to warrant a departure from [Commerce’s]
standard annual costing approach.” Mem. From K. Clahane to The File, re:
Maquilacero S.A. de C.V. and Tecnicas de Fluidos S.A. de C.V.’s Analysis Mem.
Prelim. Results (Aug. 31, 2022) (“Prelim. Results Analysis Mem.”) at 15, PR 112,
CR 202; see also Light-Walled Rectangular Pipe and Tube From Mexico, 87 Fed.
Reg. 54965 (Dep’t of Commerce Sep. 8, 2022) (preliminary results and partial
rescission of the antidumping duty administrative review; 2020–2021), PR 111,
and accompanying Preliminary Decision Memorandum at 15–16, PR 103
(“Accordingly, a shorter cost-averaging period, based on a quarterly-average [cost
of manufacturing], is appropriate for Maquilacero/TEFLU because we found Consol. Court No. 23-00091 Page 16
significant cost changes in [cost of manufacturing] as well as reasonable linkage
between costs and sale prices.”). Defendant argues that these cost differences are
irrelevant for Commerce’s new methodology, and that, “if anything, this is an
implicit concession by Maquilacero that there was a pattern of prices that did
indeed differ significantly.” Def.’s Br. at 19–20.
“Section 1677f–1(d)(1)(B) does not require Commerce to determine
the reasons why there is a pattern of export prices for comparable
merchandise that differs significantly among purchasers, regions, or time
periods.” JBF RAK LLC v. United States (“JBF RAK”), 790 F.3d 1358,
1368 (Fed. Cir. 2015). The CAFC has held that “requiring Commerce to
determine the intent of a targeted dumping respondent ‘would create a
tremendous burden on Commerce that is not required or suggested by the
statute.’” JBF RAK, 790 F.3d at 1363, 1368 (citation omitted).4 Commerce
explained that a pattern of prices that differ significantly may indicate
4
In JBF RAK LLC, the CAFC concluded that: “Section 1677f–1(d)(1)(B) does not require Commerce to determine the reasons why there is a pattern of export prices for comparable merchandise that differs significantly among purchasers, regions, or time periods, nor does it mandate which comparison methods Commerce must use in administrative reviews. As a result, Commerce looks to its practices in antidumping duty investigations for guidance. Here, the CIT did not err in finding there is no intent requirement in the statute, and we agree with the CIT that requiring Commerce to determine the intent of a targeted dumping respondent ‘would create a tremendous burden on Commerce that is not required or suggested by the statute.’” 790 F.3d at 1368 (internal quotation marks and citation omitted). Consol. Court No. 23-00091 Page 17
masked dumping, and that the meaningful difference test is what measures
the amount of masked dumping that the A-to-A method cannot account for.
See Second Remand Redetermination at 6–7. Although Commerce
preliminarily determined that differences in costs of manufacturing were
“significant enough to warrant a departure from [Commerce’s] standard
annual costing approach,” Prelim. Results Analysis Mem. at 15, Commerce
applied a new methodology in the Second Remand Redetermination and
Commerce was not required by the statute nor the price difference test or
ratio test to determine why the prices differ significantly.
Moreover, Perfiles argues that the ratio test was not upheld by the
CAFC in Stupp and was insufficient to establish that a pattern of price
differences existed. Consol. Pl.’s Br. at 14. Perfiles claims that the CAFC’s
decision only addressed the reasonableness of the 33% and 66% thresholds
as a “policy choice,” but not as tools to identify true patterns in price
differences. Id. at 14–15. In Stupp, the CAFC held “that Commerce’s ratio
test reasonably implements the statutory requirement that Commerce
determine whether there is ‘a pattern of export prices’ ‘differ[ing]
significantly among purchasers, regions, or periods of time’ before selecting
the average-to-transaction method.” 5 F.4th at 1355 (citing 19 U.S.C. Consol. Court No. 23-00091 Page 18
§ 1677f-1(d)(1)(B)(i)). The ratio test was before the CAFC in Stupp, 5 F.4th
at 1355, and the CAFC did not hold that the ratio test was unreasonable.
Perfiles also argues that Commerce should apply a statistical, “effectsize test” to determine if a pattern of prices exists. Consol. Pl.’s Br. at 11–
12. Defendant argues that 19 U.S.C. § 1677f-1(d)(1)(B) does not require
Commerce to employ statistical tests. Def.’s Br. at 23. Defendant argues
that Perfiles’ argument relies upon evidence from statistics textbooks that
was not previously in the record. Def.’s Br. at 23–24. Because those
documents were not on the record before Commerce and not considered by
Commerce in the underlying proceeding, the Court may not consider them
now. See 19 C.F.R. § 351.104(a)(3)(i) (“Documents not originating with
[Commerce] must be placed on the official record for the documents to be
considered by [Commerce] in [Commerce]’s analysis and determination”).
Plaintiffs contest Commerce’s abandonment of the mixed
methodology on remand as well. See Pls.’ Br. at 22–23; Consol. Pl.’s Br. at
18–19. Maquilacero and TEFLU argue that Commerce’s decision to
discontinue the mixed methodology lacked the requisite explanation for
abandoning a practice or policy, and unlawfully altered the ratio test. Pls.’
Br. at 22–23. Perfiles claims further that Commerce’s elimination of the
mixed methodology was beyond the scope of the CAFC’s remand order in Consol. Court No. 23-00091 Page 19
Marmen III. Consol. Pl.’s Br. at 18–19. The Second Remand
Redetermination explained that the statute does not require Commerce to use
a “mixed” method as an alternative comparison methodology. Second
Remand Redetermination at 23. In Marmen III, the CAFC concluded that,
on remand:
Commerce may re-perform a differential pricing analysis, and that
analysis may not rely on [the] Cohen’s d test for data sets like those
here. This conclusion, of course, does not preclude Commerce from
fashioning and justifying a statistical analysis that uses some of the
ideas underlying Cohen’s analysis of group differences as long as the
resulting analysis is itself justified as sound for gauging differences in
the data sets at issue.
134 F.4th at 1348. The CAFC’s decision permitted Commerce to utilize a
different analysis. Commerce stated that “[w]hile the statute permits
Commerce’s previous policy that adopted a hybrid version of the A-to-A
method and the A-to-T method,” Section 1677f-1(d)(1)(B) “permits
Commerce to use the A-to-T method when certain conditions . . . are
satisfied.” Second Remand Redetermination at 23.
Section 1677f-1(d)(1)(B) provides that Commerce may apply the Ato-T method, rather than the A-to-A method, if there is a pattern of export
prices that differ significantly among purchasers, regions, or periods of time,
so long as Commerce “explains why such differences cannot be taken into
account using a method described in paragraph (1)(A)(i) or (ii).” 19 U.S.C. Consol. Court No. 23-00091 Page 20
§ 1677f-1(d)(1)(B). The exception in Section 1677f-1(d) refers to
determining margins through the A-to-A methodology or the A-to-T
methodology and makes no reference to a “mixed method” when Commerce
applies both. See id. § 1677f-1(d). This absence of statutory language
referring to a mixed method supports Commerce’s determination to
discontinue the use of its “mixed method.” Additionally, the SAA refers to
the use of one methodology over the other, but makes no reference to the
simultaneous application of the A-to-A method and the A-to-T method. See
SAA at 842–843, 1994 U.S.C.C.A.N. at 4178.5
Relying on the statutory language and the legislative history, the Court
concludes that Commerce permissibly revised its differential pricing
analysis to discontinue use of the “mixed method” and to apply the “ratio
test” in accordance with Marmen III. The Court observes that the CAFC has
previously upheld the “ratio test” as a reasonable method for Commerce to
implement the statutory requirement to determine whether there is a pattern
of export prices that differ significantly among purchasers, regions, or
periods of time. Stupp, 5 F.4th at 1355. The Court concludes that
5
“New section 777A(d)(1)(B) provides for a comparison of average normal values to individual export prices or constructed export prices in situations where an [Ato-A] or [T-to-T] methodology cannot account for a pattern of prices that differ significantly among purchasers, regions, or time periods, i.e., where targeted dumping may be occurring.” SAA at 843, 1994 U.S.C.C.A.N. at 4178. Consol. Court No. 23-00091 Page 21
Commerce provided a reasonable explanation for abandoning the “mixed
method” and applying the “ratio test,” and that Commerce complied with the
CAFC’s Opinion in Marmen III. Ad Hoc Shrimp, 38 CIT at 730, 992 F.
Supp. 2d at 1290. Because Commerce adequately explained how its
methodology was reasonable, the Court holds that Commerce’s application
of the “ratio test” to determine the extent of the significant price differences
of all U.S. sales as measured by the “price difference test” applied as a
component of its differential pricing analysis is in accordance with law.
In summary, Commerce conducted the differential pricing analysis here in
three steps: the new “price difference test,” the “ratio test,” and the “meaningful
difference test.” The CAFC has held previously that Commerce’s “ratio test”
“reasonably implements the statutory requirement that Commerce determine
whether there is a ‘pattern of export prices’ ‘differ[ing] significantly among
purchasers, regions, or periods of time’ before selecting the [A-to-T].” Stupp, 5
F.4th at 1355 (alteration in original) (quoting 19 U.S.C. § 1677f-1(d)(1)(B)(i)).
The CAFC reasoned that the “ratio test” is a “conventional method for quantifying
comparisons across discrete groups: counting the number of divergent sales prices,
as identified by an effect-size test, and calculating the population percentage of
those divergent sales prices.” Id. at 1354. The CAFC further held that
Commerce’s selection of the 33% and the 66% cutoffs in the “ratio test” is Consol. Court No. 23-00091 Page 22
reasonable. Id. at 1354–55. The CAFC has also held that the “meaningful
difference test,” step three of the differential pricing analysis, is reasonable. Id. at
1356 (citing Apex Frozen Foods, 862 F.3d at 1348–49); see also Toyo Kohan Co.,
Ltd. v. United States, 50 CIT __, No. 24-00261, 2026 WL 1459170 (May 22,
2026) (sustaining Commerce’s differential pricing analysis using the new “price
difference test” instead of the Cohen’s d test after Marmen III); Marmen IV, 50
CIT __, No. 20-00169, 2026 WL 1726609; Gov’t of Canada et al. v. United States,
50 CIT __, No. 23-00187, 2026 WL 2161176 (July 27, 2026); Universal Tube &
Plastic Indus. et al. v. United States, 50 CIT __, No. 23-00113, 2026 WL 2428416
(Aug. 19, 2026).
With respect to the new “price difference test” that replaced the Cohen’s
d test and is the first step in Commerce’s differential pricing analysis, Commerce
explained that the “price difference test” is intended to determine whether prices
differ significantly among purchasers, regions, or time periods. Second Remand
Redetermination at 4–5. Commerce stated that if average prices to an affiliated
customer differ by at least 2% from market prices, then Commerce considers that
2% threshold to be a significant difference. Id. at 13–14. As noted above, the
CAFC in Stupp held that Commerce’s selection of statistical tests and numerical
cutoffs must be reasonable. Stupp, 5 F.4th at 1353.
Consol. Court No. 23-00091 Page 23
In Commerce’s new “price difference test,” Commerce determined that a 2%
difference in pricing would be considered significant. Because Commerce applied
the new “price difference test” on a case-by-case basis and determined that 98.12%
of the value of U.S. sales for Maquilacero and TEFLU passed the “price difference
test,” Commerce reasonably determined that prices differed significantly. Second
Remand Redetermination at 9. The Court concludes that Commerce’s “price
difference test” is reasonable and in accordance with law.
Plaintiffs also argue that Commerce unlawfully abandoned the mixed
methodology. Pls.’ Br. at 22–23; Consol. Pl.’s Br. at 18–19. The CAFC stated in
Marmen III that Commerce could revisit its differential pricing analysis, which is
what Commerce did on remand in this case. Marmen III, 134 F.4th at 1348
(“Commerce may re-perform a differential pricing analysis[.]”). The Court
concludes that Commerce’s determination to alter its “mixed method” within its
differential pricing analysis was reasonable when refashioning a new analytical
framework to implement 19 U.S.C. § 1677f-1(d)(1)(B).
CONCLUSION
For the foregoing reasons, Commerce’s Second Remand Redetermination is
sustained. Judgment will be entered accordingly.
/s/ Jennifer Choe-Groves
Jennifer Choe-Groves, Judge
Dated: September 14, 2026
New York, New York